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It follows that Article 56(1)(a) of the VAT Directive is not to be regarded as an exception to a general rule, which must be narrowly construed (see, to that effect, judgments of 27 October 2005, Levob Verzekeringen and OV Bank, C‑41/04, EU:C:2005:649, paragraph 34, and 7 September 2006, Heger, C‑166/05, EU:C:2006:533, paragraph 17). | 49. L’imposition d’une somme forfaitaire doit, dans chaque cas d’espèce, demeurer fonction de l’ensemble des éléments pertinents ayant trait tant aux caractéristiques du manquement constaté qu’à l’attitude propre à l’État membre concerné par la procédure initiée sur le fondement de l’article 260 TFUE. À cet égard, celui-ci investit la Cour d’un large pouvoir d’appréciation afin de décider de l’imposition ou non d’une telle sanction et de déterminer, le cas échéant, son montant (arrêt Commission/Espagne, C‑184/11, EU:C:2014:316, point 60 et jurisprudence citée). | 0 |
11,901 | 36. Finally, as regards judicial review of compliance with that principle, bearing in mind the wide discretionary power enjoyed by the Community legislature in matters concerning the common agricultural policy, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue (see Fedesa and Others , paragraph 14, and Jippes and Others , paragraph 82). Thus, the criterion to be applied is not whether the measure adopted by the legislature was the only one or the best one possible but whether it was manifestly inappropriate ( Jippes and Others , paragraph 83). | 32
In that connection, the national court must take account of the fact that the interpretation of the provisions of the Visa Code, as is clear from recital 29 thereof, must be carried out in accordance with the fundamental rights and principles recognised by the Charter. | 0 |
11,902 | 21. It is apparent from the case-law cited in the two preceding paragraphs that the intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see, inter alia, Krings EU:C:2004:122, paragraph 30 and the case-law cited). According to the case-law of the Court, a product which, on account of its objective characteristics and properties, is clearly intended for medical use may be classified in Chapter 30 of the CN (see Thyssen Haniel Logistic EU:C:1995:160, paragraph 14, and TNT Freight Management (Amsterdam) EU:C:2012:459, paragraph 41). | 46. Although the Directive allows the Member States a certain latitude as regards the precise method of implementing that provision, the fact remains that the Directive's objectives, in particular that of ensuring that for each farm or livestock unit the amount of livestock manure applied to the land each year, including by the animals themselves, does not exceed a specified amount per hectare, must be complied with by the Member States. | 0 |
11,903 | 35
Although the Member States thus enjoy a wide margin of appreciation when implementing Article 8 of Directive 2008/94, they are nonetheless obliged, in accordance with the objective pursued by that directive, to ensure a minimum degree of protection for employees as required by that provision. In that regard, the Court has already held that a correct transposition of Article 8 of that directive requires an employee to receive, in the event of the insolvency of his employer, at least half of the old-age benefits arising out of the accrued pension rights for which he has paid contributions under a supplementary occupational pension scheme (see, to that effect, judgments of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraph 57, and of 25 April 2013, Hogan and Others, C‑398/11, EU:C:2013:272, paragraph 51), although that does not mean that, in other circumstances, the losses suffered could also, even if their percentage differs, be regarded as manifestly disproportionate in the light of the obligation to protect the interests of employees, referred to in Article 8 of that directive. | 63 Consultation of the VAT Committee is thus clearly a condition precedent to the adoption of any measure on the basis of that provision. | 0 |
11,904 | 26. Consequently, as long as an E 101 certificate is not withdrawn or declared invalid, the competent institution of a Member State to which workers are posted must take account of the fact that those workers are already subject to the social security legislation of the State in which the undertaking employing them is established and that that institution cannot therefore make the workers in question subject to its own social security system ( FTS , paragraph 55). | 37
In that regard, it should be recalled that, for VAT purposes, each transaction must normally be regarded as distinct and independent, as follows from the second subparagraph of Article 1(2) of the VAT Directive (see, to that effect, judgment of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 29). | 0 |
11,905 | 40. In any event, the preamble to a European Union act has no binding legal force and cannot be relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting them in a manner clearly contrary to their wording (Case C-308/97 Manfredi [1998] ECR I-7685, paragraph 30; Case C-136/04 Deutsche Milch-Kontor [2005] ECR I-10095, paragraph 32; and Case C-134/08 Tyson Parketthandel [2009] ECR I-2875, paragraph 16). | 26. In that regard, it should be observed that the Court has consistently held that, since the concept of force majeure does not have the same scope in the various spheres of application of European Union law, its meaning must be determined by reference to the legal context in which it is to operate (see Case C-314/06 Société Pipeline Méditerranée et Rhône [2007] ECR I-12273, paragraph 25 and the case-law cited). | 0 |
11,906 | 22. In that regard, it should be borne in mind that, in accordance with settled case-law, in the context of the cooperation between the Court of Justice of the European Union and the national courts provided for by Article 267 TFEU, 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. Consequently, where questions submitted by national courts concern the interpretation of a provision of European Union law, the Court of Justice is bound, in principle, to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑103/08 Gottwald [2009] ECR I‑9117, paragraph 16; and Case C‑82/09 Dimos Agiou Nikolaou [2010] ECR I‑0000, paragraph 14). | 56. En revanche, la peine d’emprisonnement dont est assortie une disposition législative qui, telle que celles en cause dans les affaires au principal, pénalise des actes homosexuels est susceptible, à elle seule, de constituer un acte de persécution au sens de l’article 9, paragraphe 1, de la directive pourvu qu’elle soit effectivement appliquée dans le pays d’origine ayant adopté une telle législation. | 0 |
11,907 | 44 While the Court has ruled that maternity leave granted to a woman on expiry of the statutory protective period falls within the scope of Article 2(3) of Directive 76/207 (Hofmann, cited above, paragraph 26), it has also held that measures designed to protect women in their capacity as parents, which is a capacity which both male and female workers may have, cannot find justification in that provision of Directive 76/207 (Commission v France, cited above, paragraph 14). | 75. Consequently, the answer to the second question must be that clause 5(1)(a) of the Framework Agreement is to be interpreted as precluding the use of successive fixed-term employment contracts where the justification advanced for their use is solely that it is provided for by a general provision of statute or secondary legislation of a Member State. On the contrary, the concept of ‘objective reasons’ within the meaning of that clause requires recourse to this particular type of employment relationship, as provided for by national legislation, to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out.
Question 3 | 0 |
11,908 | 111
Such an interpretation, which failed to take account of the subjective conditions laid down in the third indent of Article 203(3) of the Customs Code, is not consistent either with the intention of the EU legislature, referred to in paragraph 95 above, to lay down exhaustively the conditions for determining who are the debtors responsible for the customs debt, or with the very letter and purpose of that provision (see, by analogy, judgment of 23 September 2004, Spedition Ulustrans, C‑414/02, EU:C:2004:551, paragraphs 39, 40 and 42). | 104 The Council, supported in particular by the Commission, argues that in view of its particular nature, GATT cannot be relied on to challenge the lawfulness of a Community act, except in the special case where the Community provisions were adopted to implement obligations entered into within the framework of GATT. | 0 |
11,909 | 98. Moreover, the fact that, following the late transposition into German law of Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 (OJ 2003 L 156, p. 17), which amended Directive 85/337 as regards public participation and access to justice, itself codified by Directive 2011/92, the Federal Republic of Germany restricted the temporal scope of the national provisions implementing the latter directive amounts to allowing that Member State to grant itself a new transposition period (see, by analogy, judgment in Commission v Portugal , C‑277/13, EU:C:2014:2208, paragraph 45). | À cet égard, il convient de rappeler que, selon une jurisprudence bien établie, la motivation exigée à l’article 253 CE doit être adaptée à la nature de l’acte en cause et doit faire apparaître de façon claire et non équivoque le raisonnement de l’institution, auteur de l’acte, de manière à permettre aux intéressés de connaître les justifications de la mesure prise et à la juridiction compétente d’exercer son contrôle. L’exigence de motivation doit être appréciée en fonction de toutes les circonstances de l’espèce, notamment du contenu de l’acte, de la nature des motifs invoqués et de l’intérêt que les destinataires de l’acte ou d’autres personnes concernées directement et individuellement par celui-ci peuvent avoir à recevoir des explications. Il n’est pas exigé que la motivation spécifie tous les éléments de fait et de droit pertinents, dans la mesure où la question de savoir si la motivation d’un acte satisfait aux exigences de l’article 253 CE doit être appréciée au regard non seulement de son libellé, mais aussi de son contexte ainsi que de l’ensemble des règles juridiques régissant la matière concernée (voir, en ce sens, arrêt du 29 septembre 2011, Elf Aquitaine/Commission, C‑521/09 P, EU:C:2011:620, points 147 et 150). | 0 |
11,910 | 29
Consequently, Regulation No 1193/2009, which, with the exception of Article 3 thereof, has already been annulled by the General Court of the European Union in its judgment of 29 September 2011, Poland v Commission (T‑4/06, not published, EU:T:2011:546), was declared invalid by the Court in its judgment of 27 September 2012, Zuckerfabrik Jülich and Others (C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraph 54). | 51. As far as concerns the exercise of the power of taxation so allocated by bilateral conventions to prevent double taxation, the Member States must comply with Community rules (see, to that effect, Saint-Gobain ZN , paragraph 58, and Bouanich , paragraph 50) and, more particularly, respect the principle of national treatment of nationals of other Member States and of their own nationals who exercise the freedoms guaranteed by the Treaty (see de Groot , paragraph 94). | 0 |
11,911 | 26
In order to answer the question referred, for the purpose of interpreting the latter provision it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, to that effect, judgment of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraph 31). | 55 The fundamental characteristic of such a transaction, which it has in common with leasing, lies in conferring on the person concerned, for an agreed period and for payment, the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right. | 0 |
11,912 | 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). | 31. Afin que ledit ensemble contractuel puisse être qualifié de concession de services, encore faut-il, en troisième lieu, et conformément à une jurisprudence constante, que le concessionnaire du service prenne en charge le risque lié à l’exploitation des services en question (voir, en ce sens, arrêt Eurawasser, C-206/08, EU:C:2009:540, point 59). | 0 |
11,913 | 30. In this regard, it is apparent from the Court’s case-law that the imposition, under national legislation, of a minimum wage on subcontractors of a tenderer which are established in a Member State other than that to which the contracting authority belongs and in which minimum rates of pay are lower constitutes an additional economic burden that may prohibit, impede or render less attractive the provision of their services in the host Member State. Consequently, a measure such as that at issue in the main proceedings is capable of constituting a restriction within the meaning of Article 56 TFEU (see, to that effect, the judgment in Rüffert , EU:C:2008:189, paragraph 37). | 37. As the Advocate General stated at point 103 of his Opinion, by requiring undertakings performing public works contracts and, indirectly, their subcontractors to apply the minimum wage laid down by the ‘Buildings and public works’ collective agreement, a law such as the Landesvergabegesetz may impose on service providers established in another Member State where minimum rates of pay are lower an additional economic burden that may prohibit, impede or render less attractive the provision of their services in the host Member State. Therefore, a measure such as that at issue in the main proceedings is capable of constituting a restriction within the meaning of Article 49 EC. | 1 |
11,914 | 72. The mere fact that an abstract national rule categorises as a criminal offence conduct which consists in the evasion of the customs and tax provisions normally applicable cannot therefore constitute per se failure by a Member State to fulfil its obligations. The Court has held, as is clear from Louloudakis , paragraphs 69 and 70, that the requirements of enforcement and prevention may justify a Member State in setting penalties at a certain level of severity, but that it is nevertheless possible that those penalties may, in certain circumstances, prove to be disproportionate. Consequently, the question whether the penalties applied are proportionate or disproportionate has to be assessed on the basis of the level of the penalties actually applied in the individual case. An examination of the cases referred to in paragraph 48 of this judgment does not support the conclusion that the penalties actually imposed are disproportionate and the Commission has not put forward other evidence supporting a different conclusion. | 52
That interpretation is borne out, first, by the first sentence of Article 8(2) of Decision 2011/695, which provides, without further restriction, that where the undertaking or person concerned objects to the disclosure of the information it may refer the matter to the hearing officer. | 0 |
11,915 | 16. When the Court, in the exercise of the jurisdiction conferred on it by Article 234 EC, interprets a provision of Community law, it defines the meaning and scope of that provision as it ought to have been understood and applied from its entry into force (see, to this effect, Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 16; Case C-62/93 BP Supergas [1995] ECR I-1883, paragraph 39; and Case C-453/00 Kühne & Heitz [2004] ECR I-837, paragraph 21). The only circumstances where that is not the case are where, exceptionally, the Court limits the temporal effect of that interpretation in its judgment (see, to this effect, Denkavit italiana , cited above, paragraph 17; Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 74; and, for a recent application of those principles with regard to VAT, Joined Cases C-453/02 and C‑462/02 Linneweber and Akritidis [2005] ECR I-1131, paragraphs 41 to 45). | 97. À cet égard, la Cour a précisé que la liste des critères pertinents n’est pas exhaustive et que l’appréciation du caractère raisonnable dudit délai n’exige pas un examen systématique des circonstances de la cause au regard de chacun de ces critères lorsque la durée de la procédure apparaît justifiée au regard d’un seul de ceux-ci. Ainsi, la complexité de l’affaire ou un comportement dilatoire du requérant peut être retenu pour justifier un délai de prime abord trop long (voir, notamment, arrêt Der Grüne Punkt – Duales System Deutschland/Commission, précité, point 182 et la jurisprudence citée). | 0 |
11,916 | 18 As the Court held in paragraph 20 of Trend-Moden Textilhandel, those rules are justified by the need to facilitate the movement of goods within the Community, which is one of the basic principles of the common market. Providing those on whom the burden of proof normally falls with a standard and simple means of proving the Community status of goods, combined with the possibility of producing such proof even after the frontier has been crossed, is consistent with that purpose and cannot therefore be regarded as contrary to Articles 9 and 10 of the Treaty. | 84. It follows that such legislation must be examined in the light of Article 56 TFEU.
ii) Existence of a restriction on the freedom to provide services | 0 |
11,917 | 47. It is apparent from the foregoing that, for the purposes of the application of Regulation No 883/2004, a person cannot have simultaneously two habitual residences in two different Member States (see, to that effect, Wencel EU:C:2013:303, paragraph 51), given that, under that regulation, an insured person’s place of residence is necessarily different from his place of stay. | 53 Accordingly, in a situation such as is at issue in the main proceedings, the time and place at which the goods cease to be covered by the external Community transit arrangements is necessarily the time and place at which the first irregularity which can be regarded as a removal of the goods from customs supervision was committed. | 0 |
11,918 | 72. According to the Court’s settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, inter alia, Case C‑202/07 P France Télécom v Commission [2009] ECR I‑2369, paragraph 29 and the case-law cited). | 53. Thirdly, the appellant submits that the conditio ns for the application by analogy of Article 23 of Regulation No 1/2003 to an infringement of Article 65(1) CS are not satisfied. The facts must be analogous to those falling under Article 23 and there must be a legal vacuum contrary to the objective pursued by the legislature. | 0 |
11,919 | 84. It is also settled case-law that the first paragraph of Article 45 EC is an exception to the fundamental rule of freedom of establishment. As such, the exception must be interpreted in a manner which limits its scope to what is strictly necessary to safeguard the interests it allows the Member States to protect ( Commission v Greece , paragraph 7; Commission v Spain , paragraph 34; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 45; Case C‑393/05 Commission v Austria [2007] ECR I‑10195, paragraph 35; Case C‑404/05 Commission v Germany [2007] ECR I‑10239, paragraphs 37 and 46; and Commission v Portugal , paragraph 34). | 48. Or, les directives «autorisation» et «concurrence» ainsi que la directive-cadre mettent en œuvre la libre prestation de services dans le domaine des réseaux et des services de communications électroniques (voir, en ce sens, arrêt Centro Europa 7, C‑380/05, EU:C:2008:59, points 79 et 80). Ces directives visent, notamment, à protéger les intérêts des opérateurs économiques, établis dans un État membre désirant offrir des réseaux et des services de communications électroniques dans un autre État membre. | 0 |
11,920 | 18. It should first be pointed out that, according to settled case-law, the provisions of Regulation No 1408/71 determining the applicable legislation constitute a complete system of conflict rules the effect of which is to divest the national legislatures of the power to determine the ambit and the conditions for the application of their national legislation on the subject so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned (see to that effect inter alia Case 302/84 Ten Holder [1986] ECR 1821, paragraph 21, and Case 60/85 Luijten [1986] ECR 2365, paragraph 14). | 71. Il convient de relever d’emblée, au sujet des deuxième à quatrième moyens du pourvoi, que les notions de distanciation publique et de continuité d’une pratique anticoncurrentielle, auxquelles ces moyens font référence, traduisent des situations factuelles, dont l’existence est constatée par le juge du fond, au cas par cas, sur la base d’une appréciation «d’un certain nombre de coïncidences et d’indices» qui lui ont été soumis et par suite d’une «évaluation globale de l’ensemble des preuves et indices pertinents», ainsi qu’il ressort, en ce qui concerne, en particulier, la notion de «durée d’un comportement anticoncurrentiel continu», des points 94 à 96 de l’arrêt Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied/Commission, précité. Dès lors que ces preuves ont été obtenues régulièrement, que les principes généraux du droit ainsi que les règles de procédure applicables en matière de charge et d’administration de la preuve ont été respectés, il appartient au seul Tribunal d’apprécier la valeur qu’il convient d’attribuer aux éléments qui lui ont été soumis. Cette appréciation ne constitue donc pas, sous réserve du cas de la dénaturation de ces éléments, une question de droit soumise, comme telle, au contrôle de la Cour (voir arrêts du 22 décembre 2008, British Aggregates/Commission, C-487/06 P, Rec. p. I‑10515, point 97, et du 27 octobre 2011, Autriche/Scheucher-Fleisch e.a., C‑47/10 P, non encore publié au Recueil, point 58). | 0 |
11,921 | 47. In that regard, it must be borne in mind that the prevention of tax evasion, avoidance and abuse is an objective recognised and encouraged by the Sixth Directive. It is therefore for the national courts and judicial authorities to refuse the right of deduction if it is shown, in the light of objective factors, that that right is being relied on for fraudulent or abusive ends (see judgments in Bonik , C‑285/11, EU:C:2012:774, paragraphs 35 and 37 and the case-law cited, and in Maks Pen , C‑18/13, EU:C:2014:69, paragraph 26). | 58. It follows that a national legislature which, by virtue of the options afforded it by Article 4 of the Framework Decision, chooses to limit the situations in which its executing judicial authority may refuse to surrender a requested person merely reinforces the system of surrender introduced by that Framework Decision to the advantage of an area of freedom, security and justice. | 0 |
11,922 | 51 It must, however, also be borne in mind that, according to settled case-law, a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties (see Case 270/80 Polydor and RSO Records [1982] ECR 329, paragraphs 14 to 21; Case 104/81 Kupferberg [1982] ECR 3641, paragraphs 29 to 31; Case C-312/91 Metalsa [1993] ECR I-3751, paragraphs 11 to 20). | 57. However, although the situation of those shareholders must be treated as being comparable as regards the application to them of the tax legislation of the Member State in which they are resident, the same is not necessarily true, as regards the application of the tax legislation of the Member State in which the company making the distribution is resident, of the situations in which shareholders receiving dividends resident in that Member State and shareholders receiving dividends resident in another Member State are placed. | 0 |
11,923 | 57. More specifically, the Court has held that that could be the position in the case of products with visual similarities and sales names which are phonetically and visually alike ( Consorzio per la tutela del formaggio Gorgonzola , paragraph 27, and Commission v Germany , paragraph 46). | 35. The second scenario, by contrast, concerns cases which, as rightly pointed out by the Commission, are not covered by the Directive because the differences between the fields of activity are so great that in reality the full programme of education and training is required. Viewed objectively, this is a factor which is liable to discourage the party concerned from pursuing, in another Member State, one or more activities for which he is qualified. | 0 |
11,924 | 47. With regard to Article 41(1), the Court held, in accordance with the judgments in Tum and Dari and Soysal and Savatli , that that provision prohibits the introduction, as from the date of entry into force of the legal act of which that provision forms part in the host Member State, of any new restrictions on the exercise of freedom of establishment or freedom to provide services, including those relating to the substantive and/or procedural conditions governing the first admission to the territory of that Member State of Turkish nationals intending to make use of those economic freedoms ( Sahin , paragraph 64). | 107. Looked at generally, most of those reasons are based on the possible dangers posed by medicinal products and, accordingly, on the care which must be taken with all aspects of the marketing of those products, objectives which are also those of the Community legislation in the pharmaceuticals field. Thus, and in any event, consideration of the reasons put forward to justify the prohibition on the sale by mail order of medicinal products must take into account the various provisions of Community law which may affect that issue. | 0 |
11,925 | 38. In that regard, the General Court correctly recalled first, in paragraphs 69 and 70 of the judgment under appeal, the settled case-law of the Court of Justice, confirmed by the latter since the entry into force of the Lisbon Treaty (see, in particular, Case C-501/11 P Schindler Holding and Others v Commission [2013] ECR I-0000, paragraphs 107 to 111), that, when a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, there is a simple presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. According to that case-law, the Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see, in particular, Joined Cases C-628/10 P and C-14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR I-0000, paragraph 47). | 59 Second, it is clear from the fifth recital in the preamble to Directive 93/104 that the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations. However, the United Kingdom's argument is incontestably based on such a consideration. | 0 |
11,926 | 49 Moreover, in the particular context of the EEC-Turkey Association, that interpretation is confirmed by the case-law of the Court to the effect that the standstill clauses set out in Article 7 of Decision No 2/76 of the Association Council of 20 December 1976 on the implementation of Article 12 of the Ankara Agreement (not published) and Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (not published) have a direct effect between Member States as regards the introduction of new restrictions on the access to employment of workers legally resident and employed in the territory of the contracting States (Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraphs 18 and 26). | 32. A new rule of law applies from the entry into force of the act introducing it, and, while it does not apply to legal situations that have arisen and become definitive under the old law, it does apply to their future effects, and to new legal situations. It is otherwise, subject to the principle of the non-retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application (judgment in Gemeinde Altrip and Others , C‑72/12, EU:C:2013:712, paragraph 22 and the case-law cited). | 0 |
11,927 | 36. In view of the fact that, where a sphere has been the subject of exhaustive harmonisation at Community level, any national measure relating thereto must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty (Case C-37/92 Vanacker and Lesage [1993] ECR I-4947, paragraph 9, Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 32, and Case C‑322/01 Deutscher Apothekerverband [2003] ECR I-0000, paragraph 64), it must be determined whether the harmonisation brought about by Directive 94/62 precludes the compatibility of the national rules in question with Article 28 EC from being examined.
Applicability of Article 28 EC | 41. Rappelant elle-même que l’existence d’un manquement doit, selon une jurisprudence constante, être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé (voir, notamment, arrêts du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9, et du 12 novembre 2009, Commission/Belgique, C‑7/09, point 9), la Commission fait ainsi valoir au soutien de son recours que, à l’expiration du délai imparti en l’occurrence à la République française, le système de taxation de l’électricité applicable en France était toujours celui en vigueur lors de l’adoption de la directive 2003/96. Elle indique, dans la réplique, qu’il s’agit «d’une situation de non-transposition». | 0 |
11,928 | 27. Thus, in accordance with Article 7(2) of Regulation No 3950/92, on expiry of a rural lease of a milk production holding, the reference quantity attached thereto in principle reverts, in whole or part, to the lessor only where he has the status of a producer within the meaning of Article 9(c) of that regulation ( Thomsen , paragraph 41). | 48. In this respect, it must be recalled that, where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred (see, to that effect, Aalborg Portland and Others v Commission , paragraphs 355 to 358). | 0 |
11,929 | 43. It is apparent from recital 20 in the preamble that Directive 2001/29 is based on the principles and rules already laid down in the directives in force in this area, inter alia Directive 92/100 on rental right and lending right (now Directive 2006/115) and Directive 93/98 harmonising the term of protection of copyright (now Directive 2006/116). It is stated that Directive 2001/29 develops those principles and rules and places them in the context of the information society. Accordingly, the provisions of Directive 2001/29 should be without prejudice to the provisions of those two directives, unless otherwise provided in Directive 2001/29 (see, to this effect, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraphs 187 and 188). | 20 With regard to Emergency Law No 690/1945, which provides for terms of imprisonment of up to three months for employers who do not pay the remuneration due to their employees within specified time-limits, it is sufficient to state that that is a criminal law which does not in itself guarantee employees payment of their outstanding claims in the event of their employer' s insolvency, which is the essential objective of the directive, as is clear from the first recital in the preamble thereto . | 0 |
11,930 | 51. Recourse to the public-policy clause in Article 34(1) of Regulation No 44/2001 can be envisaged only where recognition or enforcement of the judgment given in another Member State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it would infringe a fundamental principle. The infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order (see Krombach , paragraph 37; Renault , paragraph 30; and Apostolides , paragraph 59). | 32 The concept of "redundancy", which determines the scope of the EPA and the Commission' s interpretation of which has not been disputed by the United Kingdom, does not cover all the cases of "collective redundancy" covered by the directive. In particular, as the Commission points out, it does not cover cases where workers have been dismissed as a result of new working arrangements within an undertaking unconnected with its volume of business. | 0 |
11,931 | 13 It must be borne in mind that not only Article 48 of the Treaty but also regulations, as institutional acts adopted on the basis of the Treaty, apply in principle to the same geographical area as the Treaty itself (Case 61/77 Commission v Ireland [1978] ECR 417, paragraph 46). | 27. In any event, there is nothing in the text of Article 12(3)(b) of the Sixth Directive which requires that provision to be interpreted as requiring that the reduced rate can be charged only if it is applied to all supplies of natural gas and electricity. It is true that the French text of that provision uses the definite article "aux" before the term "fournitures" , but a comparison of the different language versions, some of which do not use the definite article, argues in favour of an interpretation that a selective application of the reduced rate cannot be excluded, provided that no risk of distortion of competition exists. | 0 |
11,932 | 67. With regard to the latter point, the Slovak Republic argues that since those benefits are not intended to improve the state of health of the dependent persons or offset in the short term the lack of income during illness, they cannot be classified as a sickness benefit strictu senso (judgment in da Silva Martins , C‑388/09, EU:C:2011:439, paragraph 47) or as supplementary sickness benefits within the meaning of the judgments in Molenaar (C‑160/96, EU:C:1998:84) and Jauch (C‑215/99, EU:C:2001:139).
Findings of the Court | 119. According to settled case-law, the right to property is one of the general principles of Community law. However, it is not absolute but must be viewed in relation to its social function. Consequently, the exercise of the right to property may be restricted, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute in relation to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (see, to that effect, inter alia, Case C-306/93 SMW Winzersekt [1994] ECR I-5555, paragraph 22, and Joined Cases C-37/02 and C-38/02 Di Lenardo and Dilexport [2004] ECR I‑0000, paragraph 82 and the case-law cited). | 0 |
11,933 | 63
Nevertheless, as such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgments of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 66, and of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 75). | 40. Therefore, it is not appropriate to limit the scope of Article 7(1)(b) of Regulation No 40/94 to trade marks for which registration is refused on the basis of Article 7(1)(d) thereof by reason of the fact that they are commonly used in business communications and, in particular, in advertising. | 0 |
11,934 | 41 It must be recalled that aims of a purely economic nature cannot justify a barrier to the fundamental principle of freedom to provide services (see, to that effect, Case C-398/95 SETTG v Ypourgos Ergasias [1997] ECR I-3091, paragraph 23). However, it cannot be excluded that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying a barrier of that kind. | 47. It is, however, necessary to point out that, in paragraphs 14 to 16 of the contested decision, the Board of Appeal, adopting the decision of the examiner, took the view that the colour in question did not have a distinctive character for the goods in question. A colour, in itself, does not in principle have a distinctive character, unless it has acquired such a character in consequence of use, and the colour orange is a very common colour for those goods. Furthermore, the appellant’s competitors might also have an interest in using that colour. | 0 |
11,935 | 48
The foregoing analysis is not called in question by the French Government’s claims that the contributions and social levies at issue in the main proceedings are classified as ‘taxes’ that are levied on income from real estate, not on earned income, and which do not directly give rise to any benefits in return or to any advantage in terms of social security benefits. In fact, as is apparent from the information provided by the referring court, those levies and contributions are in any event allocated specifically and directly for the funding of certain branches of the French social security scheme. An EU official such as Mr de Lobkowicz cannot, accordingly, be subject to those levies and contributions since his financial obligations in matters of social security are governed exclusively by the Protocol and the Staff Regulations and, as such, fall outside the jurisdiction of the Member States (see, by analogy, with regard to Regulation No 1408/71, judgment of 26 February 2015, de Ruyter, C‑623/13, EU:C:2015:123, paragraphs 23, 26, 28 and 29). | 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 |
11,936 | 27. En conséquence, selon une jurisprudence constante de la Cour, l’État membre destinataire d’une décision l’obligeant à récupérer des aides illégales est tenu, en vertu de l’article 288 TFUE, de prendre toutes les mesures propres à assurer l’exécution de cette décision. Il doit parvenir à une récupération effective des sommes dues (arrêts du 5 octobre 2006, Commission/France, C‑232/05, Rec. p. I‑10071, point 42, ainsi que Commission/Pologne, précité, point 55 et jurisprudence citée). | 40. Certes, il y a lieu d’admettre que le principe de sécurité juridique, qui est un principe général du droit de l’Union, est de nature à justifier que les effets juridiques d’une convention soient respectés y compris, dans la mesure que ce principe commande, dans le cas d’une convention conclue avant que la Cour ne se soit prononcée sur les implications du droit primaire à l’égard des conventions de ce type et qui, a posteriori, se révélerait contraire à certaines de ces implications (voir, en ce sens, arrêt ASM Brescia, précité, points 69 et 70). Cependant, ledit principe ne saurait être invoqué pour donner à une convention une extension contraire aux principes d’égalité de traitement et de non-discrimination ainsi qu’à l’obligation de transparence qui en découle. Il est indifférent, à cet égard, que cette extension puisse constituer une solution raisonnable propre à mettre fin à un litige survenu entre les parties concernées, pour des raisons totalement indépendantes de leur volonté, quant à la portée de la convention qui les lie. | 0 |
11,937 | 41. By contrast, it is incompatible with the rules governing the right to deduct under Directive 2006/112 to impose a penalty, in the form of a refusal of that right, on a taxable person who did not know, and could not have known, that the transaction concerned was connected with fraud committed by the supplier, or that another transaction forming part of the chain of supply prior or subsequent to the transaction carried out by the taxable person was vitiated by VAT fraud (see Joined Cases C‑354/03, C‑355/03 and C‑484/03 Optigen and Others [2006] ECR I‑483, paragraphs 52 and 55; Kittel and Recolta Recycling , paragraphs 45, 46 and 60; Mahagében and Dávid , paragraph 47; Bonik , paragraph 41; and LVK – 56 , paragraph 60). | 75. However, it is settled case-law that the obligation to state reasons does not require the Court of First Instance to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent Court with sufficient material for it to exercise its power of review (see, to that effect, Case C‑120/99 Italy v Council [2001] ECR I-7997, paragraph 28, and Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2001] ECR I‑123, paragraph 372). | 0 |
11,938 | 90 It likewise follows from settled case-law that a scheme of prior authorisation cannot legitimise discretionary decisions taken by the national authorities which are liable to negate the effectiveness of provisions of Community law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings (see, to that effect, Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 25; Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, paragraphs 23 to 28, and Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 37). Therefore, in order for a prior administrative authorisation scheme to be justified even though it derogates from such a fundamental freedom, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily (Analir and Others, paragraph 38). Such a prior administrative authorisation scheme must likewise be based on a procedural system which is easily accessible and capable of ensuring that a request for authorisation will be dealt with objectively and impartially within a reasonable time and refusals to grant authorisation must also be capable of being challenged in judicial or quasi-judicial proceedings. | 30
That being so, as regards, in the first place, a possible distortion of the evidence by the General Court, it must be recalled that such distortion must be obvious from the documents before the Court of Justice, without there being any need to carry out a new assessment of the facts and the evidence (judgments of 20 November 2014, Intra-Presse v Golden Balls, C‑581/13 P and C‑582/13 P, not published, EU:C:2014:2387, paragraph 39 and the case-law cited, and of 26 October 2016, Westermann Lernspielverlage v EUIPO, C‑482/15 P, EU:C:2016:805, paragraph 36 and the case-law cited). | 0 |
11,939 | 19. In numerous cases, the Court has defined the concept of the letting of immovable property within the meaning of Article 13B(b) of the Sixth Directive as essentially the conferring by a landlord on a tenant, for an agreed period and in return for payment, of the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right (see, to that effect, Goed Wonen , paragraph 55; Case C-409/98 Mirror Group [2001] ECR I-7175, paragraph 31; Case C-108/99 Cantor Fitzgerald International [2001] ECR I-7257, paragraph 21; Case C-269/00 Seeling [2003] ECR I-4101, paragraph 49; and Sinclair Collis , paragraph 25). | 25. However, it is also settled that the fundamental characteristic of a letting of immovable property for the purposes of Article 13B(b) of the Sixth Directive lies in conferring on the person concerned, for an agreed period and for payment, the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right (see, to that effect, "Goed Wonen" , paragraph 55, and Case C-108/99 Cantor Fitzgerald International [2001] ECR I-7257, paragraph 21). | 1 |
11,940 | 24 It follows that, contrary to the arguments put forward by the French Republic, the Directive seeks to achieve, in the matters regulated by it, complete harmonisation of the laws, regulations and administrative provisions of the Member States (see the judgments of today in Case C-154/00 Commission v Greece [2002] ECR I-3879, paragraphs 10 to 20, and Case C-183/00 González Sánchez [2002] ECR I-3901, paragraphs 23 to 32). | 38 That argument cannot be accepted. Mere apprehension of internal difficulties cannot justify a failure to apply the rules in question. | 0 |
11,941 | 12 As the Court has consistently held (see judgments in Case 326/85 Netherlands v Commission [1987] ECR 5091, at paragraph 7, Case 332/85 Germany v Commission [1987] ECR 5143, at paragraph 7, and Case 347/85 United Kingdom v Commission [1988] ECR 1749, at paragraph 11), those provisions permit the Commission to charge to the Fund only sums paid in accordance with the rules laid down in the various sectors of agricultural production while leaving the Member States to bear the burden of any other sums paid, and in particular any amounts which the national authorities wrongly believed themselves authorized to pay or not to collect in the context of the common organization of the markets. | 20 The answer to that question depends on an assessment of all the relevant circumstances, inter alia the nature of the goods concerned and the period which elapsed between their acquisition and their use for the taxable person' s economic activities. However, the adjustment periods provided for in Article 20(2) of the Sixth Directive do not as such have any bearing on the question whether the goods are acquired for the purposes of those economic activities. | 0 |
11,942 | 102. According to the case-law, in proceedings for failure to fulfil obligations under Article 226 EC it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled and in so doing it may not rely on any presumption (see, inter alia, Case 96/81 Commission v Netherlands , cited above, paragraph 6, Case C-408/97 Commission v Netherlands , cited above, paragraph 15, and Commission v Portugal , cited above, paragraph 80). | 24. With regard to a contract term providing for an amendment of the total price of the service provided to the consumer, it should be pointed out that, in light of points 1(j) and (l) and 2(b) and (d) of the annex to the Directive, the reason for and the method of the variation of the aforementioned price must, in particular, be set out, the consumer having the right to terminate the contract. | 0 |
11,943 | 7 The Court has consistently held that Member States are obliged to ensure that the provisions of a directive are applied exactly and in full (see, in particular, the judgments in Cases 91/79 and 92/79 Commission v Italy [1980] ECR 1099, at paragraph 6). | 6 EVEN IF IT IS TRUE THAT ITALIAN DOMESTIC LAW HAS TO A LARGE EXTENT ALREADY SECURED THE OBJECTIVES OF THE DIRECTIVE , NEVERTHELESS THE POSITION REMAINS THAT THE ITALIAN REPUBLIC HAS NOT COMPLETELY COMPLIED WITH IT , WHICH IT MOREOVER DOES NOT DENY , AND IT HAS NOT NOTIFIED THE COMMISSION OF THE NATIONAL MEASURES ADOPTED . IT SHOULD BE NOTED IN THIS RESPECT THAT THE MEMBER STATES ARE OBLIGED TO ENSURE THE FULL AND EXACT APPLICATION OF THE PROVISIONS OF ANY DIRECTIVE .
| 1 |
11,944 | 23. Thus, the Court has held that, in the case of part-time employment, EU law does not preclude a retirement pension being calculated pro rata temporis in the case of part-time employment (see, to that effect, judgment in Schönheit and Becker , C‑4/02 and C‑5/02, EU:C:2003:583, paragraphs 90 and 91), nor does it preclude paid annual leave from being calculated in accordance with the same principle (see, to that effect, judgments in Zentralbetriebsrat der Landeskrankenhāuser Tirols , C‑486/08, EU:C:2010:215, paragraph 33, and Heimann and Toltschin , EU:C:2012:693, paragraph 36). | 35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71. | 0 |
11,945 | 20. Therefore, whilst it is legitimate for the measures adopted by the Member State to seek to preserve the rights of the public exchequer as effectively as possible, such measures must not go further than is necessary for that purpose (see, in particular, Molenheide and Others , paragraph 47, and Federation of Technological Industries and Others , paragraph 30). | 69. That is therefore an argument directed against a ground included in the judgment under appeal purely for the sake of completeness which cannot lead to the judgment being set aside and is thus ineffective (see, in particular, 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 148). | 0 |
11,946 | 80. Cet argument doit être rejeté. En effet, le Tribunal est seul juge de la nécessité éventuelle de compléter les éléments d’information dont il dispose sur les affaires dont il est saisi. Le caractère probant ou non des pièces de la procédure relève de son appréciation souveraine des faits, laquelle échappe au contrôle de la Cour dans le cadre du pourvoi, sauf en cas de dénaturation des éléments de preuve présentés au Tribunal ou lorsque l’inexactitude matérielle des constatations effectuées par ce dernier ressort des documents versés au dossier (arrêts Der Grüne Punkt – Duales System Deutschland/Commission, C‑385/07 P, EU:C:2009:456, point 163, et Deltafina/Commission, C‑578/11 P, EU:C:2014:1742, point 67). Or, dans le cadre du présent pourvoi, l’EMA n’a allégué aucune dénaturation des éléments de preuve présentés au Tribunal ni aucune inexactitude matérielle des constatations effectuées par le Tribunal qui ressortirait des documents versés au dossier. | 66 Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration. | 0 |
11,947 | 14 According to settled case-law, by virtue of that principle measures imposing financial charges on economic operators are lawful provided that they are appropriate and necessary for meeting the objectives legitimately pursued by the rules in question. However, when there is a choice between several appropriate measures, the least onerous measure must be used and the charges imposed must not be disproportionate to the aims pursued (see, in particular, the judgment in Case 265/87 Schraeder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 21). | Eu égard aux considérations qui précèdent, le deuxième argument doit être écarté comme étant non fondé. | 0 |
11,948 | 25. It must be recalled that, according to settled case-law, in proceedings under Article 226 EC the question whether a Member State had failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see Case C-423/00 Commission v Belgium [2002] ECR I-593, paragraph 14, and Case C-254/05 Commission v Belgium [2007] ECR I‑4269, paragraph 39). | 23 It is true that in 1982 the European Community signed the abovementioned Convention for the Conservation of Salmon in the North Atlantic. However, that Convention may not be invoked against non-signatory States and cannot, therefore, be applied to vessels registered in those States. | 0 |
11,949 | 37 The provisions of Regulation No 1408/71 on the waiving of residence clauses are measures applying Article 51 of the Treaty adopted for the establishment, in the field of social security, of freedom of movement for workers guaranteed in Article 48 of the Treaty (see, in particular, concerning the interpretation of Articles 10a and 11 of Regulation No 1408/71, Case C-215/99 Jauch [2001] ECR I-1901, paragraph 20). Therefore the inclusion of the Luxembourg maternity allowance as a special non-contributory benefit paid exclusively in the territory of the Member State of residence in Annex IIa, point I. Luxembourg, (b), of Regulation No 1408/71 is contrary to Articles 48 and 51 of the Treaty. Accordingly, the grant of that benefit cannot be conditional upon residence in the territory of the competent State. | 91. Il convient de relever que la protection du bien-être des animaux constitue un objectif légitime d’intérêt général dont l’importance s’est traduite, notamment, par l’adoption par les États membres du protocole sur la protection et le bien-être des animaux, annexé au traité instituant la Communauté européenne (JO 1997, C 340, p. 110). La Cour a, par ailleurs, constaté à plusieurs reprises l’intérêt que la Communauté porte à la santé et à la protection des animaux (voir, notamment, arrêt Nationale Raad van Dierenkwekers en Liefhebbers et Andibel, précité, point 27). | 0 |
11,950 | 33 According to that case-law, where a provision discriminates against women, the members of the disadvantaged group are to be treated in the same way and to have applied to them the same rules as the other workers and, failing correct implementation of Article 119 of the Treaty in national law, those rules remain the only valid point of reference (see the judgments in Case C-154/92 Van Cant v Rijksdienst voor Pensionen [1993] ECR I-3811, paragraph 20; Case C-184/89 Nimz v Freie und Hansastadt Hamburg [1991] ECR I-297, paragraph 18; Case C-33/89 Kowalska v Freie und Hansastadt Hamburg [1990] ECR I-2591, paragraph 20, and Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453, paragraph 19). | 61. In paragraph 22 of the order under appeal, the General Court recalled the settled case-law according to which an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see Wunenburger v Commission , paragraph 42 and the case-law cited, and Joined Cases C‑373/06 P, C‑379/06 P and C‑382/06 P Flaherty and Others v Commission [2008] ECR I‑2649, paragraph 25). | 0 |
11,951 | 70
In that regard, it should be recalled that the Court held that the principle of effective judicial protection, reaffirmed in Article 47 of the Charter, did not preclude national legislation making the application of legal action in the field of electronic communications and consumer services subject to the prior implementation of out-of-court conciliation and mediation procedures provided that those procedures do not result in a decision which is binding on the parties, that they do not cause a substantial delay for the purposes of bringing legal proceedings, that they suspend the period for the time-barring of claims and that they do not give rise to costs — or give rise to very low costs — for the parties, and only if electronic means are not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires (see, to that effect, judgments of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 67, and of 14 June 2017, Menini and Rampanelli, C‑75/16, EU:C:2017:457, paragraph 61). | 61
Accordingly, the requirement for a mediation procedure as a condition for the admissibility of proceedings before the courts may prove compatible with the principle of effective judicial protection, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs — or gives rise to very low costs — for the parties, and only if electronic means are not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires (see, to that effect, judgment of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 67). | 1 |
11,952 | 18. With regard to judicial review of the conditions for application of the principle of proportionality, having regard to the broad discretion of the European Union legislature in areas such as those in issue in the present case, which involve political, economic and social choices on its part, and in which it is called on to undertake complex assessments, the legality of a measure adopted in those areas can be affected only if the measure is manifestly disproportionate having regard to the objectives which the competent institutions are seeking to pursue (see Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others [2005] ECR I‑10423, paragraph 69, and Case C-504/04 Agrarproduktion Staebelow [2006] ECR I‑679, paragraph 36). | 35. By its action, the Federal Republic of Germany granted a tax advantage to the resident company with the permanent establishment situated in Austria, in the same way as if that permanent establishment had been situated in Germany. | 0 |
11,953 | 23
The Court has stated that the expression ‘insurance transactions’ covers not only transactions carried out by the insurers themselves and, is, in principle sufficiently broad to include the provision of insurance cover by a taxable person who is not himself an insurer but, in the context of a block policy, procures such cover for his customers by making use of the supplies of an insurer who assumes the risk insured. However, such transactions necessarily imply the existence of a contractual relationship between the provider of the insurance service and the person whose risks are covered by the insurance, that is to say, the insured party (see judgment in Taksatorringen, C‑8/01, EU:C:2003:621 paragraphs 40 and 41). | 12 LES ADAPTATIONS FIGURANT A L' ANNEXE I DE L' ACTE D' ADHESION FONT AINSI L' OBJET DE L' ACCORD ENTRE LES ETATS MEMBRES ET L' ETAT DEMANDEUR PREVU A L' ARTICLE 237 DU TRAITE . ELLES NE CONSTITUENT PAS UN ACTE DU CONSEIL, MAIS DES DISPOSITIONS DE DROIT PRIMAIRE QUI, SELON L' ARTICLE 6 DU MEME ACTE ET A MOINS QUE CELUI-CI EN DISPOSE AUTREMENT, NE PEUVENT ETRE SUSPENDUES, MODIFIEES OU ABROGEES QUE SELON LES PROCEDURES PREVUES POUR LA REVISION DES TRAITES ORIGINAIRES . | 0 |
11,954 | 59 However, as the United Kingdom Government and the Commission have correctly pointed out, under the Court's case-law a national authority's use of a public-policy derogation presupposes that there is a genuine and sufficiently serious threat affecting one of the fundamental interests of society (see Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 8, Case C-348/96 Calfa [1999] ECR I-11, paragraph 21, and, on the interpretation of the provisions adopted within the context of the association arrangements between the European Economic Community and Turkey, Case C-340/97 Nazli [2000] ECR I-957, paragraphs 56 to 61). | 25 For Article 8 to apply, however, a number of conditions must be satisfied. The goods on which excise duty is chargeable must have been acquired by private individuals for their own use and transported by them. | 0 |
11,955 | 28. In paragraph 31 of the judgment in Rockfon (C‑449/93, EU:C:1995:420), the Court observed, referring to paragraph 15 of the judgment in Botzen and Others (186/83, EU:C:1985:58), that an employment relationship is essentially characterised by the link existing between the worker and the part of the undertaking or business to which he is assigned to carry out his duties. The Court therefore decided, in paragraph 32 of the judgment in Rockfon (C‑449/93, EU:C:1995:420), that the term ‘establishment’ in Article 1(1)(a) of Directive 98/59 must be interpreted as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential in order for there to be an ‘establishment’ that the unit in question is endowed with a management that can independently effect collective redundancies. | 34. However, the Court’s case-law shows that a call for tenders is not mandatory where a public authority which is a contracting authority exercises over the separate entity concerned control similar to that which it exercises over its own departments, provided that that entity carries out the essential part of its activity with the public authority or with other controlling local or regional authorities (see, to that effect, Teckal , paragraph 50, and Stadt Halle and RPL Lochau , paragraph 49). | 0 |
11,956 | 51. It has to be remembered that the reasons which may be invoked by a Member State in order to justify a derogation from the principle of freedom to provide services must be accompanied by appropriate evidence or by an analysis of the expediency and proportionality of the restrictive measure adopted by that State, and precise evidence enabling its arguments to be substantiated (see, to that effect, Case C‑254/05 Commission v Belgium [2007] ECR I-4269, paragraph 36, and the case‑law cited). | 53. Secondly, regarding the claims for compensation for the damage resulting from the activities of the person responsible for the acts of infringement or threatened infringement and for disclosure, in order to determine the extent of that damage, of information relating to those activities, it must be found that the obligation to provide such information and to pay compensation for the damage suffered does not, by contrast, constitute a sanction within the meaning of Article 89 of Regulation No 6/2002. | 0 |
11,957 | 46. It should be recalled in that regard that, according to the case-law, the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, on the one hand, that rules of law must be clear and precise and, on the other, that their application must be foreseeable by those subject to them (see, inter alia, Case C‑63/93 Duff and Others [1996] ECR I‑569, paragraph 20; Case C‑107/97 Rombi and Arkopharma [2000] ECR I‑3367, paragraph 66; and Case C‑17/03 VEMW and Others [2005] ECR I‑4983, paragraph 80). That requirement must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which those rules impose on them (Case C‑17/01 Sudholz [2004] ECR I‑4243, paragraph 34). | 66. That plea, on the same grounds as those adopted by the General Court, must be rejected as unfounded. | 0 |
11,958 | 37. À cet égard, il y a lieu de relever que le fait que la Commission a détaillé, dans son mémoire en réplique, le grief qu’elle avait déjà fait valoir de manière plus générale dans la requête n’a pas modifié l’objet du manquement allégué et n’a donc eu aucune incidence sur la portée du litige (voir, en ce sens, arrêt Commission/Portugal, C‑543/08, EU:C:2010:669, point 23). | 39. À cet égard, la Cour a précisé que, si le prix effectivement payé ou à payer pour les marchandises forme, en règle générale, la base de calcul de la valeur en douane (voir, en ce sens, arrêt Sommer, précité, point 22), ce prix est une donnée qui doit éventuellement faire l’objet d’ajustements lorsque cette opération est nécessaire pour éviter de déterminer une valeur en douane arbitraire ou fictive (arrêt du 19 mars 2009, Mitsui & Co. Deutschland, C‑256/07, Rec. p. I‑1951, point 24). | 0 |
11,959 | 108. In that case, and without prejudice to any protection under specific rights such as trade mark rights, the protection of that name cannot be justified on the grounds of protection of industrial and commercial property within the meaning of Article 30 EC (see, to that effect, Exportur , paragraph 37, and Joined Cases C-321/94 to C-324/94 Pistre and Others [1997] ECR I-2343, paragraph 53). | 54. In that regard, it should first of all be borne in mind that, although, by virtue of the very nature of regulations and of their function in the system of sources of EU law, the provisions of regulations generally have immediate effect in the national legal systems, without the need for the national authorities to adopt implementing measures, some of their provisions may nevertheless require, for their application, the adoption of implementing measures by the Member States (see, to that effect, inter alia, Case C‑592/11 Ketelä EU:C:2012:673, paragraph 35 and the case-law cited). | 0 |
11,960 | 42
In the fourth place, in order to determine the gravity of an infringement, regard must be had to a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. Those factors may, depending on the circumstances, include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market (see, to that effect, judgments of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 120; of 9 November 1983, Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, EU:C:1983:313, paragraph 111; and of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraphs 89 and 90). | 80. Toutefois, ce même point 3.2.1 précise sans équivoque que «[l]es coûts admissibles doivent être strictement limités aux coûts d’investissement supplémentaires nécessaires pour atteindre les objectifs de protection de l’environnement» et la phrase citée au point précédent n’a qu’un caractère illustratif. | 0 |
11,961 | 28. In the context of that assessment, it may indeed appear, for example, that the perception of the relevant public is not necessarily the same for each of the categories and that, accordingly, it could prove more difficult to establish the distinctive character of trade marks in certain categories than that of those in other categories (see, in particular, Henkel , paragraph 52, and, in relation to Article 7(1)(b) of Regulation No 40/94, Case C-468/01 P Proctor & Gamble v OHIM [2004] ECR I-0000, paragraph 36, and the order in Glaverbel v OHIM , paragraph 23). | 58 A possible reduction in their earnings cannot therefore be contrary to the principle of the protection of legitimate expectations. | 0 |
11,962 | 56. In the course of the comparative examination, a Member State may however take into consideration objective differences relating to both the legal framework of the profession in question in the Member State of origin and to its field of activity (see judgments in Vlassopoulou , C‑340/89, EU:C:1991:193, paragraph 18; Morgenbesser , C‑313/01, EU:C:2003:612, paragraph 69; and Peśla , C‑345/08, EU:C:2009:771, paragraph 44). | 40 In those circumstances, the reply to the questions referred for a preliminary ruling must be that Article 379(1) of the implementing regulation, read in conjunction with the Community Customs Code, should be interpreted as meaning that a customs debt arising by reason of an offence or irregularity committed in connection with a consignment placed under the external Community transit procedure can be recovered from the principal by the office of departure even if it did not notify the principal before the end of the 11th month following the date of registration of the Community transit declaration that the consignment had not been presented at the office of destination and that the place of the offence or irregularity could not be established. The same applies if the office of departure did not follow an administrative procedure for the transmission of information, such as the early warning system, or if the failure to comply with the time-limit was due to error or negligence on the part of that office. | 0 |
11,963 | 24. In answering that question, the only test mentioned in Article 6(1) of Directive 89/104 is whether the indication of geographical origin is used in accordance with honest practices in industrial or commercial matters. The condition of " honest practice" constitutes in substance the expression of a duty to act fairly in relation to the legitimate interests of the trade mark owner ( BMW , cited above, paragraph 61). | 49. Such an approach appears moreover to be fully justified by the circumstance that, in practice, it is not always possible for the competent authority to ascertain that the animals have actually suffered, or been injured, as a result of non‑compliance with those provisions. | 0 |
11,964 | 24 Articles 3(g), 5 and 86 of the Treaty could apply to rules such as those contained in the Italian Law only if it were proved that that law creates a position of economic strength for an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and, ultimately, the consumers (judgment in Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 38). | 33. Sur le fond, il convient de relever d’emblée que les critères d’appréciation du caractère distinctif des marques tridimensionnelles constituées par la forme du produit lui-même ne sont pas différents de ceux applicables aux autres catégories de marques. L’élément principal de cette appréciation est non pas la qualification de la marque en tant que signe figuratif, tridimensionnel ou autre, mais sa capacité d’identifier les produits ou les services pour lesquels l’enregistrement est demandé comme provenant d’une entreprise déterminée et donc de les distinguer de ceux d’autres entreprises. | 0 |
11,965 | 95 It should be noted, however, that where the Commission refuses to charge certain expenditure to the EAGGF on the ground that it was incurred as a result of breach of Community rules for which a Member State can be held responsible, the Commission is required not to demonstrate exhaustively that the checks carried out by the Member States are inadequate, but to provide evidence of the serious and reasonable doubt it entertains concerning the checks carried out by the national authorities. The reason for this mitigation of the burden of proof on the Commission is that it is the State which is best placed to collect and check the data required for the clearance of EAGGF accounts, and which is consequently required to adduce the most detailed and comprehensive evidence that its checks are actually carried out and, if appropriate, that the Commission's assertions are incorrect (Case C-242/97 Belgium v Commission [2000] ECR I-3421, paragraph 104). | 31. Such decisions, which are not based on an assessment of the effect of the killing of the wolves that they authorise on the maintenance at a favourable conservation status of the population of that species in its natural range, and which do not contain a clear and sufficient statement of reasons as to the absence of a satisfactory alternative, are contrary to Article 16(1) of the Habitats Directive. | 0 |
11,966 | 41. In order to assess the lawfulness of the pricing policy applied by a dominant undertaking, reference should be made, as a general rule, to pricing criteria based on the costs incurred by the dominant undertaking itself and on its strategy (see, to that effect, Case C‑62/86 AKZO v Commission [1991] ECR I‑3359, paragraph 74, and France Télécom v Commission , paragraph 108). | 69. The present case entails that type of situation. As is apparent from paragraphs 13 and 14 above, EnBW requested disclosure of a set of documents, identified globally, in the file relating to the proceeding which led to the adoption of the GIS decision. | 0 |
11,967 | 33. In order to answer that question, it is necessary to bear in mind that a fundamental principle in the EU legal order requires that a measure adopted by the public authorities cannot be enforced against individuals before they have the opportunity to make themselves acquainted with it through its proper publication in the Official Journal of the European Union (Case C-98/78 Racke [1979] ECR 69, paragraph 15, and Skoma-Lux , paragraph 37). | 8. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 20 mai 2010, Commission/Espagne, C‑158/09, point 7, et du 24 juin 2010, Commission/Grèce, C‑478/09, point 9). | 0 |
11,968 | 16 As regards the criticism by the national court of the lack of reasons for the rate of import duty adopted, the Court has consistently held that the statement of reasons required by Article 190 of the Treaty must be appropriate to the nature of the measure in question. The reasoning of the institution which adopted the measure must be stated clearly and unequivocally, so as to inform persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review. It also follows from that case-law that the statement of reasons for a measure is not required to detail every relevant point of fact and law, as the question whether the statement of reasons satisfies the requirements of Article 190 of the Treaty must be considered with reference not only to its wording but also to its context and the whole body of legal rules governing the matter in question. Consequently, if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution (see inter alia the judgments in Case 250/84 Eridania Zuccherifici Nazionali v Cassa Conguaglio Zucchero [1986] ECR 117, paragraphs 37 and 38, and, most recently, Case C-478/93 Netherlands v Commission [1995] ECR I-0000, paragraphs 48 and 49). | 46 It should also be noted that subparagraph (c) of the second paragraph of Article 86 of the Treaty prohibits any discrimination on the part of an undertaking in a dominant position which consists in the application of dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, irrespective of whether such discrimination is linked to nationality. | 0 |
11,969 | 25. Consequently, where questions submitted by national courts concern the interpretation of a provision of Community law, the Court is, in principle, obliged to give a ruling (see Dzodzi and Gmurzynska-Bscher , cited above, paragraphs 35 and 20 respectively). Neither the wording of Article 177 nor the aim of the procedur e established by that article indicates that the Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State (see Dzodzi and Gmurzynska-Bscher , cited above, paragraphs 36 and 25 respectively). | S’agissant, plus spécifiquement, de l’argument par lequel SLM reproche au Tribunal de ne pas avoir recouru à des mesures d’organisation
de la procédure pour se faire communiquer davantage de factures, il convient d’emblée de rappeler que, selon une jurisprudence
bien établie de la Cour, le Tribunal est seul juge de la nécessité éventuelle de compléter les éléments d’information dont
il dispose sur les affaires dont il est saisi. Le caractère probant ou non des pièces de la procédure relève de son appréciation
souveraine des faits, laquelle échappe au contrôle de la Cour dans le cadre du pourvoi, sauf en cas de dénaturation des éléments
de preuve présentés au Tribunal ou lorsque l’inexactitude matérielle des constatations effectuées par ce dernier ressort des
documents versés au dossier (arrêt du 16 juillet 2009, Der Grüne Punkt – Duales System Deutschland/Commission, C‑385/07 P,
EU:C:2009:456, point 163 et jurisprudence citée). | 0 |
11,970 | En effet, dès lors que, dans le cadre du pourvoi, le contrôle de la Cour est limité à l’appréciation de la solution légale qui a été donnée aux moyens et aux arguments débattus devant les premiers juges, une partie ne saurait soulever pour la première fois devant la Cour un argument qu’elle n’a pas invoqué devant le Tribunal (voir, en ce sens, arrêts du 8 novembre 2016, BSH/EUIPO, C‑43/15 P, EU:C:2016:837, point 43, et du 13 juillet 2017, Saint-Gobain Glass Deutschland/Commission, C‑60/15 P, EU:C:2017:540, point 50). | 29. En premier lieu, il convient d’examiner si l’article en cause présente les caractéristiques et les propriétés objectives permettant son classement dans la position 7318 de la NC. | 0 |
11,971 | 18. However, the effect on intra-Community trade of the other provisions of the domestic legislation, which are separable from the operation of the monopoly although they have a bearing upon it, must be examined with reference to Article 28 EC (see Franzén , paragraph 36). | 19 In order to determine whether such measures are in the nature of State aid, it is necessary to consider whether in similar circumstances a private investor of a size comparable to that of the bodies administering the public sector might have provided capital of such an amount. | 0 |
11,972 | 18 Those provisions, which are intended to grant rights to consumers, define the result sought by the Directive. According to settled case-law, it is essential that the legal situation resulting from national implementing measures be sufficiently precise and clear and that individuals be made fully aware of their rights so that, where appropriate, they may rely on them before the national courts (see, in particular, Case C-365/93 Commission v Greece [1995] ECR I-499, paragraph 9, and Case C-144/99 Commission v Netherlands [2001] ECR I-3541, paragraph 17). As the Court has already made clear, the latter condition is of particular importance where the directive in question is intended to confer rights on nationals of other Member States as is the case here (Commission v Netherlands, paragraph 18). | 50. That provision thus applies, first, on condition that the applicable legislation is covered by Title II of Regulation No 1408/71 and, second, on condition that the relevant situation remained unchanged. | 0 |
11,973 | 108
In that respect, the Court has had occasion to rule that the exception in the first paragraph of Article 51 TFEU does not extend to certain activities that are ancillary or preparatory to the exercise of official authority (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraph 22; of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 38; of 30 March 2006, Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU:C:2006:208, paragraph 47; of 29 November 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraph 38; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, judgment of 21 June 1974, Reyners, 2/74, EU:C:1974:68, paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraphs 21 and 22; of 29 November 2007, Commission v Austria, C‑393/05, EU:C:2007:722, paragraphs 36 and 42; of 29 Novembre 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraphs 38 and 44; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraphs 36 and 41), powers of enforcement (see, to that effect, inter alia, judgment of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 37) or powers of coercion (see, to that effect, judgment of 30 September 2003, Anker and Others, C‑47/02, EU:C:2003:516, paragraph 61, and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 44). | 46. However, such a fact is not sufficient to make Community legislation which has not been properly published in the Official Journal of the European Union enforceable against an individual. | 0 |
11,974 | 41. En effet, conformément à la jurisprudence de la Cour, l’article 56 TFUE exige la suppression de toute restriction à la libre prestation des services imposée au motif que le prestataire est établi dans un État membre différent de celui dans lequel la prestation est fournie (voir arrêts FKP Scorpio Konzertproduktionen, C‑290/04, EU:C:2006:630, point 31; Centro Equestre da Lezíria Grande, C‑345/04, EU:C:2007:96, point 20, et X, C‑498/10, EU:C:2012:635, point 21). | 33 That conclusion cannot be invalidated by the three abovementioned objections raised by the applicants to support the plea that the statement of reasons given for the disputed decisions was insufficient. | 0 |
11,975 | 26
Consequently, where national law cannot be interpreted consistently with Directive 2004/18, the party adversely affected by the incompatibility of national law with EU law may rely upon the case-law deriving from the judgment of 19 November 1991 in Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428) in order to obtain, if appropriate, compensation for any damage suffered (see, to that effect, judgment of 26 March 2015 in Fenoll, C‑316/13, EU:C:2015:200, paragraph 48 and the case-law cited). | 60. À cet égard, il convient de rappeler que le lien juridique entre les fonctionnaires et l’administration est de nature statutaire et non contractuelle (voir, en ce sens, arrêt du 19 mars 1975, Gillet/Commission, 28/74, Rec. p. 463, point 4). Il en résulte que les droits et les obligations des fonctionnaires peuvent être modifiés à tout moment par le législateur. | 0 |
11,976 | 49
In that regard, it must be borne in mind that when a question on the validity of a measure adopted by the institutions of the European Union is raised before a national court or tribunal, it is for that court or tribunal to decide whether a preliminary ruling on the matter is necessary to enable it to give judgment and consequently whether it should ask the Court to rule on that question. Consequently, where the questions referred by the national court or tribunal concern the validity of a provision of EU law, the Court is, as a general rule, obliged to give a ruling (judgment of 3 June 2008, Intertanko and Others, C‑308/06, EU:C:2008:312, paragraph 31 and the case-law cited). | 22 Whilst the absence of any contractual link between the transferor and the transferee, or, as in these cases, between the two undertakings successively entrusted with the task of providing a home-help service or the task of maintaining surveillance at a medical supplies depot, may be evidence that no transfer within the meaning of the directive has occurred, it is certainly not conclusive. | 0 |
11,977 | 32. According to the case-law of the Court, the right to maternity leave granted to pregnant workers must be regarded as a particularly important mechanism of protection under employment law. The European Union legislature thus considered that the fundamental changes to the living conditions of the persons concerned during the period of at least 14 weeks preceding and after childbirth constituted a legitimate ground on which they could suspend their employment, without the public authorities or employers being allowed in any way to call the legitimacy of that ground into question (Case C‑116/06 Kiiski [2007] ECR I‑7643, paragraph 49, and Case C‑5/12 Betriu Montull [2013] ECR, paragraph 48). | 10 First, Articles 12, 13 and 23 of the contested decree contain technical regulations within the meaning of the first subparagraph of Article 8(1), which should thus have been communicated to the Commission immediately. | 0 |
11,978 | 28. To those ends, Article 3(1) of the First Directive, as amplified and supplemented by the Second and Third Directives, requires the Member States to ensure that civil liability in respect of the use of motor vehicles normally based in their territory is covered by insurance, and specifies, inter alia, the types of damage and the third parties who have been victims of an accident to be covered by that insurance (see, to that effect, Case C‑348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I‑6711, paragraphs 25 to 27, and Case C‑484/09 Carvalho Ferreira Santos [2011] ECR I‑0000, paragraphs 25 to 27). | 33 It is important to remember, at the outset, that the functioning of the Commission is governed by the principle of collegiate responsibility (Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, paragraph 62). | 0 |
11,979 | 42. Having regard to the objectives pursued by the framework agreement, as recalled in the preceding two paragraphs of this judgment, clause 4 of that agreement must be understood as expressing a principle of EU social law which cannot be interpreted restrictively (see judgments in Del Cerro Alonso , C‑307/05, EU:C:2007:509, paragraph 38; Impact , C‑268/06, EU:C:2008:223, paragraph 114; Gavieiro Gavieiro and Iglesias Torres , C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 49; and Nierodzik , C‑38/13, EU:C:2014:152, paragraph 24; and also orders in Montoya Medina , C‑273/10, EU:C:2011:167, paragraph 31, and Lorenzo Martínez , C‑556/11, EU:C:2012:67, paragraph 36). | 14 It follows from the general and absolute nature of the prohibition of all customs duties applicable to goods moving between Member States that customs duties are prohibited regardless of the purpose for which they were introduced and the destination of the revenue from them (see, inter alia, Joined Cases 2/69 and 3/69 Sociaal Fonds voor de Diamantarbeiders v Brachfeld [1969] ECR 211, paragraph 13). | 0 |
11,980 | 23
As regards the application of reduced rates of VAT, it is apparent from the Court’s case-law that it is for the Member States, subject to compliance with the principle of fiscal neutrality inherent in the common system of VAT, to determine more precisely the supplies of goods and services included in the categories in Annex III to the VAT Directive to which the reduced rate is to apply (judgment of 11 September 2014, K, C‑219/13, EU:C:2014:2207, paragraph 23). | 72 It must also be ascertained, in the light of all the relevant factors and taking into account the possibility of achieving the social policy aim in question by other means, whether such an aim appears to be unrelated to any discrimination based on sex and whether the disputed rule, as a means to its achievement, is capable of advancing that aim. | 0 |
11,981 | 38. As the ‘cause of action’ comprises the facts and the legal rule invoked as the basis for the application (see Case C-406/92 The Tatry [1994] ECR I-5439, paragraph 39), the unavoidable conclusion is that, even if it be assumed that the facts underlying the two sets of proceedings are identical, the legal rule which forms the basis of each of those applications is different, as has been pointed out by Mærsk, the Commission and the Advocate General at point 41 of his Opinion. The action for damages is based on the law governing non-contractual liability, whereas the application for the establishment of a liability limitation fund is based on the 1957 Convention and on the Netherlands legislation which gives effect to it. | 45. As regards the principle of the protection of legitimate expectations, it must be recalled that, in the field of the common agricultural policy, economic operators are not justified in having a legitimate expectation that an existing situation which is capable of being altered by the competent authorities in the exercise of their discretionary power will be maintained ( JK Otsa Talu , paragraph 51). It follows from this that the making of investments in production capacity or the purchase of land does not entitle the producer concerned to entertain any legitimate expectation based on the making of those investments in order to claim a reference amount allocated precisely on account of those investments (see, to that effect, Spronk , paragraph 29). | 0 |
11,982 | 36
Consequently, in a situation such as that at issue in the main proceedings which is confined in all respects within a single Member State, it is for the referring court to indicate to the Court, in accordance with the requirements of Article 94 of the Rules of Procedure of the Court, in what way the dispute pending before it, despite its purely domestic character, has a connecting factor with the provisions of EU law on the fundamental freedoms that makes the preliminary ruling on interpretation necessary for it to give judgment in that dispute (judgment of 8 December 2016, Eurosaneamientos and Others, C‑532/15 and C‑538/15, EU:C:2016:932, paragraph 47 and the case-law cited). | 35 The care allowance thus takes the form of financial aid which enables the standard of living of persons requiring care to be improved as a whole, so as to compensate for the additional expense brought about by their condition. | 0 |
11,983 | 82. The reasons invoked by an institution and capable of justifying refusal of access to such a document of which communication has been requested before the closure of the administrative procedure might not be sufficient for refusing disclosure of the same document after the adoption of the decision, without that institution explaining the specific reasons why is considers that the closure of the procedure does not exclude the possibility that that refusal of access may remain justified having regard to the risk of a serious undermining of its decision-making process (see, by analogy with the second indent of Article 4(2) of Regulation No 1049/2001, Sweden and Others v API and Commission , paragraphs 132 to 134). | 25. The Court has already declared, as regards the applicability ratione temporis of that directive that new rules apply, unless otherwise specifically provided, immediately to the future effects of a situation which arose under the old rule. Thus the Court concluded that the calculation of the period of service required to qualify for a retirement pension is governed by Directive 97/81, including periods of employment before the directive entered into force (Joined Cases C‑395/08 and C‑396/08 Bruno and Others [2010] ECR I‑5119, paragraphs 53 to 55). | 0 |
11,984 | 46. As stated in paragraph 38 above, it is for the Commission to prove that the rules of the common organisation of the agricultural markets have been infringed (see also to that effect Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 19, and Case C-253/97 Italy v Commission [1999] ECR I-7529, paragraph 6). | 82. In any event, it is clear from the order for reference that the VAT and Duties Tribunal considers that the sole purpose of the transactions at issue in the main proceedings was to obtain a tax advantage. | 0 |
11,985 | 167. It must be remembered that it is for each Member State to organise, in compliance with European Union law, its system for taxing distributed profits and, in that context, to define the tax base and the tax rate which apply to the shareholder receiving them (see, in particular, Test Claimants in Class IV of the ACT Group Litigation , paragraph 50; Test Claimants in the FII Group Litigation , paragraph 47; and Case C‑194/06 Orange European Smallcap Fund [2008] ECR I‑3747, paragraph 30). | 33. With this in mind, it will thus be necessary to interpret Regulation No 1393/2007 so as, in each specific case, to guarantee a fair balance between the interests of the applicant and those of the defendant, the addressee of the document, by reconciling the objectives of efficiency and speed of the service of the procedural documents with the need to ensure that the rights of the defence of the addressee of those documents are adequately protected (see judgments in Weiss und Partner , C‑14/07, EU:C:2008:264, paragraph 48, and Alder , C‑325/11, EU:C:2012:824, paragraph 36). | 0 |
11,986 | 36 As for the extent of the reparation payable by the Member State responsible for the breach of Community law, it follows from Brasserie du Pêcheur and Factortame, cited above, paragraph 82, that reparation must be commensurate with the loss or damage sustained, that is to say so as to ensure effective protection for the rights of the individuals harmed. | 39. A difference in treatment between resident subsidiary companies according to the seat of their parent company constitutes an obstacle to the freedom of establishment if it makes it less attractive for companies established in other Member States to exercise that freedom and they may, in consequence, refrain from acquiring, creating or maintaining a subsidiary in the State which adopts that measure (Case C‑324/00 Lankhorst-Hohorst [2002] ECR I‑11779, paragraph 32, and Test Claimants in the Thin Cap Group Litigation , paragraph 61). | 0 |
11,987 | 41. It is true that, as the household submitted, the Court, in paragraph 36 of Enkler , referred in the context of Articles 6(2) and 11(A)(1)(c) to expenses ‘such as the writing-off of depreciation’. | 8 The administrative complaint and its rejection, whether express or implied, by the appointing authority thus constitute an integral part of a complex procedure . Consequently, the action before the Court, even if formally directed against the rejection of the official' s complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted . | 0 |
11,988 | 84 The Court has consistently held that, if those three conditions are satisfied, the person liable is entitled to waiver of recovery (see, in particular, the judgments in Mecanarte, cited above, paragraph 12, and in Case C-292/91 Weis v Hauptzollamt Wuerzburg [1993] ECR I-2219, paragraph 15). | 81. As the Court has already held, it is therefore left to the discretion enjoyed by the Member States under clause 5(1) of the Framework Agreement to rely on one or more of the measures listed in that clause, or even on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers, in order to ensure the effective prevention of the misuse of successive fixed-term employment contracts or relationships (see Impact , paragraph 71). | 0 |
11,989 | 108 Furthermore, the fact that different rules may be applicable in another Member State does not mean that the rules in force in the former State are incompatible with Community law (see, to that effect, Case C-108/96 Mac Quen and Others [2001] ECR I-837, paragraph 33). Even if multi-disciplinary partnerships of lawyers and accountants are allowed in some Member States, the Bar of the Netherlands is entitled to consider that the objectives pursued by the 1993 Regulation cannot, having regard in particular to the legal regimes by which members of the Bar and accountants are respectively governed in the Netherlands, be attained by less restrictive means (see, to that effect, with regard to a law reserving judicial debt-recovery activity to lawyers, Reisebüro, paragraph 41). | Il convient de rappeler que, aux points 50, 52 et 58 de l’arrêt du 16 mai 2002, France/Commission (C‑482/99, EU:C:2002:294), la Cour a estimé que l’imputabilité à l’État des mesures prises par les entreprises publiques ne pouvait être déduite exclusivement du critère organique. Elle a jugé que, même si l’État est en mesure de contrôler une entreprise publique et d’exercer une influence déterminante sur les opérations de celle-ci, l’exercice effectif de ce contrôle ne saurait être automatiquement présumé. La Cour a estimé qu’il est encore nécessaire d’examiner si les autorités publiques devaient être considérées comme ayant été impliquées, d’une manière ou d’une autre, dans l’adoption de ces mesures (arrêts du 16 mai 2002, France/Commission, C‑482/99, EU:C:2002:294, points 50 à 52, et du 17 septembre 2014, Commerz Nederland, C‑242/13, EU:C:2014:2224, point 31). | 0 |
11,990 | 46 The rule of special jurisdiction laid down in Article 5(3) of the Brussels Convention is based on the existence of a particularly close connecting factor between a dispute and the courts for the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (see to that effect, inter alia, Mines de Potasse d'Alsace, paragraphs 11 and 17; Dumez France and Tracoba, paragraph 17; Shevill and Others, paragraph 19, and Marinari, paragraph 10). The courts for the place where the harmful event occurred are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence. Those considerations are equally relevant whether the dispute concerns compensation for damage which has already occurred or relates to an action seeking to prevent the occurrence of damage. | 36 In that regard, the fact that a Member State requires a professional organisation to produce a draft tariff for services does not automatically divest the tariff finally adopted of the character of legislation. | 0 |
11,991 | 36. Finally, as regards judicial review of compliance with that principle, bearing in mind the wide discretionary power enjoyed by the Community legislature in matters concerning the common agricultural policy, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue (see Fedesa and Others , paragraph 14, and Jippes and Others , paragraph 82). Thus, the criterion to be applied is not whether the measure adopted by the legislature was the only one or the best one possible but whether it was manifestly inappropriate ( Jippes and Others , paragraph 83). | 43. In that regard, it should be recalled that, as is clear from Recital 15 of Directives 2000/43 and 2000/78 and Recital 30 of Directive 2006/54, national law or the national practices of the Member States may provide, in particular, that indirect discrimination may be established by any means including on the basis of statistical evidence. | 0 |
11,992 | 42. Having regard to the objective of equal treatment between men and women which is pursued by the framework agreement on parental leave, as recalled in paragraph 35 above, Clause 2.6 must be interpreted as articulating a particularly important principle of Community social law which cannot therefore be interpreted restrictively (see, by analogy, Case C‑173/99 BECTU [2001] ECR I‑4881, paragraph 43; Case C‑307/05 Del Cerro Alonso [2007] ECR I‑7109, paragraph 38; Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 114; and Joined Cases C‑350/06 and C‑520/06 Schultz-Hoff [2009] ECR I-0000, paragraph 22). | 53. Similarly, the fact that the Member States participating in the Schengen acquis are not obliged, when they develop and deepen the enhanced cooperation which they have been authorised to establish by Article 1 of the Schengen Protocol, to provide for special adaptation measures for the other Member States (judgment in United Kingdom v Council , C‑482/08, EU:C:2010:631, paragraph 49) does not mean that the EU legislature is prohibited from enacting such measures, in particular allowing certain limited forms of cooperation with those other Member States, where it finds it appropriate. | 0 |
11,993 | 33. As regards, first, point (a) of the first paragraph of Article 78 of Directive 2006/112, the Court has stated that if taxes, duties, levies and charges are to fall within the basis of assessment, even though they do not represent any added value and do not constitute the financial consideration for the supply of the goods, they must be directly linked to that supply (judgment of 22 December 2010 in Case C‑433/09 Commission v Austria , paragraph 34 and case-law cited). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
11,994 | 41. As the Court has repeatedly held, in proceedings 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 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6, and Case C-512/08 Commission v France [2010] ECR I-8833, paragraph 56). | 6 IT SHOULD BE EMPHASIZED THAT , IN PROCEEDINGS UNDER ARTICLE 169 OF THE EEC TREATY FOR FAILURE TO FULFIL AN OBLIGATION , IT IS INCUMBENT UPON THE COMMISSION TO PROVE THE ALLEGATION THAT THE OBLIGATION HAS NOT BEEN FULFILLED . IT IS THE COMMISSION ' S RESPONSIBILITY TO PLACE BEFORE THE COURT THE INFORMATION NEEDED TO ENABLE THE COURT TO ESTABLISH THAT THE OBLIGATION HAS NOT BEEN FULFILLED , AND IN SO DOING THE COMMISSION MAY NOT RELY ON ANY PRESUMPTION .
| 1 |
11,995 | 36
It must therefore be concluded that the Framework Directive does not preclude, in principle, an NRA, within the meaning of the directive, merging with other national regulatory authorities or all those entities coming together to form a single multisectoral regulatory body, provided that, in performing the tasks entrusted to NRAs by the Framework Directive and the Specific Directives, that body meets the requirements of competence, independence, impartiality and transparency laid down by the Framework Directive and that an effective right of appeal is available against its decisions to a body independent of the parties involved (see, by analogy, judgments of 6 October 2010, Base and Others, C‑389/08, EU:C:2010:584, paragraph 30, and of 17 September 2015, KPN, C‑85/14, EU:C:2015:610, paragraph 57). | 42 Contrary to the Commission's submissions, it is the mere failure to authenticate an act which constitutes the infringement of an essential procedural requirement and it is not necessary also to establish that the act is vitiated by some other defect or that the lack of authentication resulted in harm to the person relying on it. | 0 |
11,996 | 51. What may reveal that it is possible to exercise functions relating to control, direction and financial support – going beyond the simple placing of capital by an investor – and illustrate the existence of organic and functional links between an entity owning a controlling shareholding in a company and the controlled company itself, is the fact that members of the management committee and the controlling body of that entity are appointed to the equivalent bodies of the controlled company (see, to that effect, Cassa di Risparmio di Firenze and Others , paragraphs 116 and 117). | 107. On the contrary, it is for the person applying for access to establish the necessity of transferring that data (see judgment in Commission v Bavarian Lager , EU:C:2010:378, paragraph 77). | 0 |
11,997 | 15. It is settled case‑law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, Case C‑376/07 Kamino International Logistics [2009] ECR I‑1167, paragraph 31, and Case C‑370/08 Data I/O [2010] ECR I‑0000, paragraph 29). | 56. Article 8 of Directive 75/442 states that those obligations, which are the corollary to the prohibition on the abandonment, dumping or uncontrolled disposal of waste laid down in Article 4 of the Directive, are the responsibility of ‘any holder of waste’. | 0 |
11,998 | 19. Article 4(1) of that directive prohibits any ‘discrimination whatsoever on ground of sex ... in particular as concerns ... the scope of the schemes and the conditions of access ..., the obligation to contribute and the calculation of contributions [and] the calculation of benefits’. That provision can be relied upon by an individual before national courts in order to have any national provision not in conformity with that article disapplied (Case C‑102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraph 19, and Case C‑337/91 van Gemert-Derks [1993] ECR I‑5435, paragraph 31).
The requirement to pay adjustment contributions | 40 A system of that kind cannot therefore function properly unless the procedures for administrative cooperation are strictly complied with. However, such cooperation is excluded with the authorities of an entity such as that established in the northern part of Cyprus, which is recognized neither by the Community nor by the Member States; the only Cypriot State they recognize is the Republic of Cyprus. | 0 |
11,999 | 41. It is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the legal order of the European Union, decide to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely, that those concerned should have acted in good faith and that there should be a risk of serious difficulties (see, inter alia, Case C‑402/03 Skov and Bilka [2006] ECR I‑199, paragraph 51; Case C‑2/09 Kalinchev [2010] ECR I‑4939, paragraph 50; and Santander Asset Management SGIIC and Others , paragraph 59). | 20. As both Fixtures and the Commission submit, there are several indications of the intention of the Community legislature to give the term database as defined in the directive, a wide scope, unencumbered by considerations of a formal, technical or material nature. | 0 |
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