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12,400 | 104. That said, it must, in any event, be recalled that, even before the entry into force of Decision 2006/613, the Member States are to protect sites as soon as they propose them, under Article 4(1) of Directive 94/43, as sites eligible for identification as SCIs on the national list transmitted to the Commission (see, to that effect, Dragaggi and Others , paragraph 26). The Member States are required, under that directive, to take protective measures that are appropriate, having regard to the directive’s conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at national level (see Dragaggi and Others , paragraph 30) and cannot therefore consent to interventions which may create the risk of seriously compromising the ecological characteristics of those sites, for example interventions which create the risk of significantly reducing the surface area of a site, of leading to the disappearance of priority species present on that site, or, finally, of having as an outcome the destruction of the site or the eradication of its representative characteristics (see Case C-244/05 Bund Naturschutz in Bayern and Others [2006] ECR I-8445, paragraph 46, and Case C-340/10 Commission v Cyprus [2012] ECR, paragraph 44). | 26. However, it has also held that the conclusion that the proprietor may not rely on the rights conferred by the trade mark in order to oppose the marketing under his trade mark of products repackaged by an importer amounts to conferring on the importer certain rights which in normal circumstances are reserved for the trade mark proprietor himself. Consequently, in the interests of the proprietor as owner of the trade mark, and to protect him against any misuse, those rights must be recognised only in so far as the importer also complies with a number of other requirements (see, to that effect, Bristol-Myers Squibb and Others , paragraphs 68 and 69, and MPA Pharma , paragraphs 40 and 41). | 0 |
12,401 | 44. If the position of the tax authorities is indeed as described in the previous paragraph, which is for the referring court to ascertain, it should be observed that the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see Midland Bank , paragraph 19; Abbey National , paragraph 24; Cibo Participations , paragraph 27; Kretztechnik , paragraph 34; and Investrand , paragraph 22). | 50 It is true that the prohibition in question in the main proceedings does not apply to all types of lottery, small-scale lotteries not conducted for private gain being permitted in the national territory and the prohibition being set in the more general context of the national legislation on gambling which permits certain forms of gambling similar to lotteries, such as football pools or "bingo". | 0 |
12,402 | 35. As the Court has pointed out on numerous occasions, the concept of public policy, first, comes into play where a genuine and sufficiently serious threat affects one of the fundamental interests of society and, second, must, as a justification for a derogation from a fundamental principle of the Treaty, be narrowly construed (see to that effect, in particular, Case C-355/98 Commission v Belgium [2000] ECR I‑1221, paragraph 28; Case C-465/05 Commission v Italy [2007] ECR I-11091, paragraph 49; and Case C-319/06 Commission v Luxembourg [2008] ECR I-0000, paragraph 50). | 51 In addition, although, following the reunification of Germany, Article 92(2)(c) of the Treaty falls to be applied to the new Länder, such application is conceivable only on the same conditions as those applicable in the old Länder during the period preceding the date of that reunification. | 0 |
12,403 | 23. As regards the first of those conditions, it is apparent from the case-law of the Court that a specific purpose within the meaning of Article 3(2) of Directive 92/12 is a purpose other than a purely budgetary purpose (see Commission v France , paragraph 19; EKW and Wein & Co , paragraph 31; and Case C‑491/03 Hermann [2005] ECR I‑2025, paragraph 16). | 18. Finally, for the purposes of classification under the appropriate heading, it should be recalled 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 Case C‑459/93 Thyssen Haniel Logistic [1995] ECR I‑1381, paragraph 13, DFDS , paragraph 29, and Case C‑183/06 RUMA [2007] ECR I‑0000, paragraph 36). | 0 |
12,404 | 64. S’agissant de l’interdiction de l’utilisation des filets maillants dérivants dont la longueur individuelle ou cumulée est supérieure à 2,5 kilomètres, la Cour a jugé que la limitation de l’usage de ces filets telle qu’elle résultait du règlement n° 345/92 a été adoptée dans le but primordial d’assurer la conservation et l’exploitation rationnelle des ressources halieutiques ainsi que la limitation de l’effort de pêche (voir arrêt Mondiet, précité, point 24). | 16. Par ailleurs, un État membre ne saurait exciper de dispositions, pratiques ou situations de son ordre juridique interne pour justifier le non-respect des obligations et délais prescrits par une directive (voir, notamment, arrêt du 10 avril 2003, Commission/France, C-114/02, Rec. p. I-3783, point 11). | 0 |
12,405 | 71. If the conduct complained of may be considered a breach of the manager’s contract, that being a matter for the referring court to determine, it must be concluded that the court which has jurisdiction to rule on that conduct is the one specified in Article 5(1) of Regulation No 44/2001. If not, the jurisdiction rule set out in Article 5(3) of that regulation applies (see, by analogy, judgment in Brogsitter , C‑548/12, EU:C:2014:148, paragraphs 24 to 27). | 32. Therefore, in order to ensure the protection of the rights conferred by the trade mark and to make possible the further marketing of goods bearing a trade mark without the proprietor of the trade mark being able to oppose that, it is essential that the proprietor can control the first placing of those goods on the market in the EEA, irrespective of the fact that they may have first been marketed outside that area (see, to that effect, Sebago and Maison Dubois , paragraphs 20 and 21; Zino Davidoff and Levi Strauss , paragraph 33; Van Doren + Q , paragraph 26; and Peak Holding , paragraphs 36 and 37). | 0 |
12,406 | 13. Under the Court’s case-law, an arbitration tribunal is not a ‘court or tribunal of a Member State’ within the meaning of Article 234 EC where the parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the public authorities of the Member State concerned are not involved in the decision to opt for arbitration nor required to intervene of their own accord in the proceedings before the arbitrator (Case 102/81 ‘ Nordsee’ Deutsche Hochseefischerei [1982] ECR 1095, paragraphs 10 to 12, and Case C-126/97 Eco Swiss [1999] ECR I-3055, paragraph 34). | 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 |
12,407 | 52. As regards Article 3(1)(c) of the Directive, the Court has recognised that this provision pursues an aim that is in the public interest, which requires that the signs and indications descriptive of the categories of goods or services for which registration is sought may be freely used by all (see Joined Cases C-108/97 and C-109/97 Windsurfing Chiemsee [1999] ECR I-2779, paragraph 25, and Joined Cases C-53/01 to C-55/01 Linde and Others [2003] ECR I-3161, paragraph 73). | 26
In that connection, it must be recalled that, according to settled case-law, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, in accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 48 and the case-law cited). | 0 |
12,408 | 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). | 122. FAPL and others and MPS submit, in the alternative, that the restriction at issue in the main proceedings is necessary in order to ensure compliance with the ‘closed period’ rule which prohibits the broadcasting in the United Kingdom of football matches on Saturday afternoons. This rule is stated to have the objective of encouraging the public to attend stadiums to watch football matches, particularly those in the lower divisions; according to FAPL and others and MPS, the objective could not be achieved if television viewers in the United Kingdom were able freely to watch the Premier League matches which broadcasters transmit from other Member States. | 0 |
12,409 | 35. It should also be pointed out that, during that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition of dismissing pregnant workers, save in exceptional cases not connected with their condition where the employer justifies the dismissal in writing ( Webb , paragraph 22; Brown , paragraph 18; Tele Danmark , paragraph 27; and Paquay , paragraph 31). | 32. If the concept of ‘services’ were a matter for the Member States, conditions for the registration of service trade marks could vary according to the national legislation concerned. The objective that acquisition of the right in the trade mark should be subject to ‘conditions … identical’ in all Member States would not be attained. | 0 |
12,410 | 52. The Court held none the less that the Portuguese Republic’s situation was not comparable to that of the other Member States included in the allocation. It held that, in so far as the Act of accession has not changed the existing situation as regards the allocation of external resources, the existing Community rules continue to be applicable. Accordingly, the new Member States cannot rely on circumstances antedating accession, in particular their fishing activities during the reference period, in support of their contention that the provisions in question should not be applied. Since their accession, they have been in the same position as the Member States excluded from the allocations under the principle of relative stability of fishing activities, which was reflected, as far as the agreements concluded before accession are concerned, in the allocation effected in 1983 ( Portugal and Spain v Council , paragraphs 43 and 44). | 64. As regards the fourth part of the plea, the Court of First Instance correctly interpreted the judgment in Spain v Commission , paragraphs 12 to 20, when it stated that the effect of that judgment is that a decision to initiate the procedure for examining State aid produces legal effects as referred to in Article 230 EC. Specific legal consequences flow from the assessment and classification of the aid mentioned and from the choice of procedure which follows from that. By contrast, the mere fact that, by the contested decisions, the Commission made a choice as to the procedure to be undertaken against the appellants and thus excluded other procedures cannot, in itself, be a legal effect for the purposes of that article. | 0 |
12,411 | 56. In that regard, it is appropriate to bear in mind that, in order to ascertain whether a retirement pension falls within the scope of Article 119 of the Treaty and, with effect from 1 May 1999, within that of Article 141(1) and (2) EC, the only possible decisive criterion is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say the criterion of employment based on the wording of the abovementioned provisions (see, to that effect, Case C-7/93 Beune [1994] ECR I-4471, paragraph 43; Case C-147/95 Evrenopoulos [1997] ECR I-2057, paragraph 19; Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 28; and Case C-351/00 Niemi [2002] ECR I-7007, paragraph 45). | Il y a donc lieu de distinguer les traitements inégaux permis au titre de l’article 65, paragraphe 1, sous a), TFUE des discriminations arbitraires interdites en vertu de l’article 65, paragraphe 3, TFUE. Il ressort, à cet égard, de la jurisprudence de la Cour que, pour qu’une réglementation fiscale nationale, qui, aux fins du calcul des droits de succession, opère une différence de traitement entre les résidents et les non-résidents puisse être considérée comme compatible avec les dispositions du traité FUE relatives à la libre circulation des capitaux, il est nécessaire que cette différence de traitement concerne des situations qui ne sont pas objectivement comparables ou qu’elle soit justifiée par une raison impérieuse d’intérêt général. Une telle réglementation doit être propre à garantir la réalisation de l’objectif poursuivi et ne pas aller au-delà de ce qui est nécessaire pour qu’il soit atteint (voir, en ce sens, arrêt du 26 mai 2016, Commission/Grèce, C‑244/15, EU:C:2016:359, points 34 et 35 ainsi que jurisprudence citée). | 0 |
12,412 | 22. Furthermore, it must be recalled that, under the first subparagraph of Article 1 of the Brussels Convention, the Convention is to apply, whatever court is seised, ‘in civil and commercial matters’ but ‘shall not extend, in particular, to revenue, customs or administrative matters’. It is clear from settled case-law that the concept of ‘civil and commercial matters’ must be regarded as an independent concept which must be interpreted by referring to the objectives and scheme of that convention and the general principles which stem from the corpus of the national legal systems. Therefore, in particular, the scope of the Convention must be essentially determined either by reason of the legal relationships between the parties to the action or of the subject-matter of the action (see, in particular, Case 814/79 Rüffer [1980] ECR 3807, paragraphs 7 and 14). | 30. S’agissant de l’argument de l’OHMI selon lequel la quatrième branche du moyen vise à remettre en cause, au stade du pourvoi, des constatations de nature factuelle, il convient de rappeler que, si l’appréciation, par le Tribunal, des éléments de preuve produits devant lui ne constitue pas, sous réserve du cas de leur dénaturation, une question de droit soumise, comme telle, au contrôle de la Cour dans le cadre d’un pourvoi (voir, notamment, arrêt du 12 juin 2007, OHMI/Shaker, C‑334/05 P, Rec. p. I‑4529, point 28 et jurisprudence citée), en revanche, il incombe à la Cour de vérifier si, lors de cette appréciation, le Tribunal a commis une erreur de droit en violant les règles applicables en matière de preuve (arrêt du 8 juillet 1999, Hüls/Commission, C‑199/92 P, Rec. p. I‑4287, point 65). | 0 |
12,413 | 18. In order to interpret Article 33 of the Sixth Directive it must be viewed against its legislative background. To that end it is useful to recall the objectives pursued by the introduction of a common system of VAT, as outlined in the judgment in Joined Cases C‑338/97, C‑344/97 and C‑390/97 Pelzl and Others [1999] ECR I-3319, paragraphs 13 to 20. | 7 ALTHOUGH IT WAS ACCOMPANIED BY A REQUEST FOR REINSTATEMENT , THE APPLICANT ' S PERSISTENCE IN HIS REQUEST FOR TERMINATION OF SERVICE WAS LIABLE TO CAST DOUBT ON THE GENUINENESS OF HIS DESIRE TO MAKE HIMSELF AVAILABLE TO THE COMMISSION .
| 0 |
12,414 | 33. In addition, measures taken by a Member State which are liable to dissuade its residents from obtaining loans or making investments in other Member States constitute restrictions on movements of capital within the meaning of Article 56(1) EC (see, in particular, Case C‑478/98 Commission v Belgium [2000] ECR I‑7587, paragraph 18). | 57 Furthermore, the existence of a proper exchange of views, at an appropriate time in the procedure for examining tenders, between the contracting authority and the tenderer constitutes a fundamental requirement of the Directive, in order to prevent the contracting authority from acting in an arbitrary manner and to ensure healthy competition between undertakings. | 0 |
12,415 | 49
The Court has consistently held that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law and that the applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter (see, to that effect, judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 19 to 21, and of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraphs 72 and 73). | 40. It is clear from the terms in which the Energy Star Agreement is couched, in particular from Articles I and V, that the Energy Star labelling program is essentially intended to enable manufacturers to use, in accordance with a procedure for the mutual recognition of registrations, a common logo to identify for consumers certain products complying with a common set of energy-efficiency specifications which they intend to sell on the American and Community markets. An instrument having a direct impact on trade in office equipment is therefore involved. | 0 |
12,416 | 16 In so far as that question requires an examination of the legal status under national law of the company concerned, it should first be pointed out that although the Court has no jurisdiction under Article 177 of the Treaty to apply the relevant rule of Community law to a particular dispute and thus to judge a provision of national law by reference to that rule it may, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of the provision in question (Case 20/87 Gauchard [1987] ECR 4879, paragraph 5).
The first part of the first question | 88. As stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. | 0 |
12,417 | 49. Individuals harmed have a right to reparation against a Member State where three conditions are met: the rule of European Union law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals (Case C‑445/06 Danske Slagterier [2009] ECR I‑2119, paragraph 20, and Case C‑568/08 Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others [2010] ECR I‑12655, paragraph 87 and the case‑law cited). | 106. When the European Union implements Security Council resolutions adopted under Chapter VII of the Charter of the United Nations, on the basis of a Common Position or a joint action adopted by the Member States pursuant to the provisions of the EU Treaty relating to the common foreign and security policy, the competent European Union authority must take due account of the terms and objectives of the resolution concerned and of the relevant obligations under that Charter relating to such implementation (see the Kadi judgment, paragraphs 295 and 296). | 0 |
12,418 | 44. Legislation which makes the establishment in the host Member State of an economic operator from another Member State subject to the issue of a prior authorisation and allows self-employed activity to be pursued only by certain economic operators who satisfy predetermined requirements, compliance with which is a condition for the issue of that authorisation, constitutes a restriction within the meaning of Article 43 EC. Such legislation deters or even prevents economic operators from other Member States from pursuing their activities in the host Member State through a fixed place of business (see, to this effect, Hartlauer , paragraphs 34, 35 and 38). | 34. A national rule under which the establishment of an undertaking from another Member State is subject to the issue of a prior authorisation constitutes a restriction within the meaning of Article 43 EC, since it is capable of hindering the exercise by that undertaking of freedom of establishment by preventing it from freely carrying on its activities through a fixed place of business. | 1 |
12,419 | 57 According to the Court's case-law, national measures which restrict the exercise of fundamental freedoms guaranteed by the Treaty can be justified only if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective (see, in particular, Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, paragraph 37; and Case C-212/97 Centros [1999] ECR I-1459, paragraph 34). | 96. Ainsi que la Cour l’a jugé à maintes reprises, un acte n’est entaché de détournement de pouvoir que s’il apparaît, sur la base d’indices objectifs, pertinents et concordants, avoir été pris exclusivement, ou à tout le moins de manière déterminante, à des fins autres que celles dont il est excipé ou dans le but d’éluder une procédure spécialement prévue par le traité pour parer aux circonstances de l’espèce (voir en ce sens, notamment, arrêts du 14 mai 1998, Windpark Groothusen/Commission, C‑48/96 P, Rec. p. I‑2873, point 52, et du 7 septembre 2006, Espagne/Conseil, C‑310/04, Rec. p. I‑7285, point 69). | 0 |
12,420 | 63 In addition, as a result of the judgment in Case 50/85 Schloh [1986] ECR 1855 (paragraphs 13 to 16), which concerns the free movement of goods, the fact that a vehicle has been used on the public highway since the last roadworthiness test may make it justifiable, at the time when it is registered in another Member State, to verify for purposes of protecting the health and life of humans that it has not been in an accident and is in a good state of repair, provided a similar inspection is required of vehicles of national origin presented for registration in the same circumstances. | 41
In the same way, it must be held that the present case does not concern a situation of the ‘mere’ provision of physical facilities for enabling or making a communication. As the Advocate General noted in paragraphs 53 and 54 of his opinion, Mr Wullems, with full knowledge of the consequences of his conduct, pre-installs onto the ‘filmspeler’ multimedia player that he markets add-ons that specifically enable purchasers to have access to protected works published — without the consent of the copyright holders of those works — on streaming websites and enable those purchasers to watch those works on their television screens (see, by analogy, judgment of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 42). That intervention enabling a direct link to be established between websites broadcasting counterfeit works and purchasers of the multimedia player, without which the purchasers would find it difficult to benefit from those protected works, is quite different from the mere provision of physical facilities, referred to in recital 27 of Directive 2001/29. In that regard, it is clear from the observations presented to the Court that the streaming websites at issue in the main proceedings are not readily identifiable by the public and the majority of them change frequently. | 0 |
12,421 | 44
As the Court has already held, such an economic link exists where, inter alia, the goods in question have been put into circulation by a licensee, by a parent company, by a subsidiary of the same group, or by an exclusive distributor. In all those situations, the proprietor or the entity of which that proprietor is part can control the quality of the goods to which the mark is affixed (see, to that effect, judgment of 22 June 1994, IHT Internationale Heiztechnik and Danziger, C‑9/93, EU:C:1994:261, paragraphs 34 and 37). | 96. In that respect, as regards the situation in which ‘goods are placed under one of the arrangements referred to in Article 7(3)’, a situation which is referred to in the second sentence of the first subparagraph of Article 10(3) of the Sixth Directive, the words ‘on entry’ must be understood as meaning that the goods have not gone beyond the first customs office and have, thus, not been imported into the territory of the Community. Consequently, where goods are seized and confiscated on their entry at an external border of the Community, the chargeable event does not occur and the tax does not become chargeable and there is no need to seek to determine the possible effect of the second subparagraph of Article 10(3) and Article 16(1)(B) of the Sixth Directive or of Article 867a of the Implementing Regulation, and this was the case in relation to the goods imported by sea in two of the cases in the main proceedings. | 0 |
12,422 | 39. As a preliminary point, it must be recalled that, although the legal regime applicable to property ownership is a field of competence reserved for the Member States under Article 222 of the EC Treaty (now Article 295 EC), it is not exempted from the fundamental rules of the Treaty (Konle , paragraph 38). Thus, national measures such as those at issue in the main proceedings, which regulate the acquisition of land for the purposes of prohibiting the establishment of secondary residences in certain areas, must comply with the provisions of the Treaty on the free movement of capital (Konle , paragraph 22, and Reisch , paragraph 28). | 73. Enfin, pour ce qui est de l’argument de la requérante concernant l’absence de diminution du patrimoine de l’État bulgare, il suffit de rappeler que la Cour a déjà jugé que les intérêts et majorations de retard qu’une entreprise connaissant des difficultés de trésorerie très graves peut être amenée à payer en contrepartie de larges facilités de paiement ne sont pas susceptibles de faire disparaître l’avantage dont bénéficie ladite entreprise (voir, en ce sens, arrêt du 29 juin 1999, DM Transport, C‑256/97, Rec. p. I-3913, point 21). La requérante n’est donc pas fondée à soutenir qu’elle n’a bénéficié d’aucun avantage en raison du recouvrement tardif des sommes en cause et du paiement des intérêts de retard. | 0 |
12,423 | 45. The assessment of appreciability depends on the circumstances of each individual case, in particular the nature of the agreement and practice, the nature of the products covered and the market position of the undertakings concerned. … The stronger the market position of the undertakings concerned, the more likely it is that an agreement or practice capable of affecting trade between Member States can be held to do so appreciably …
…
50. … the Commission considers it appropriate to set out general principles indicating when trade is normally not capable of being appreciably affected …. When applying Article 81 [EC], the Commission will consider this standard as a negative rebuttable presumption applying to all agreements within the meaning of Article 81(1) [EC] …
…
52. The Commission holds the view that in principle agreements are not capable of appreciably affecting trade between Member States when the following cumulative conditions are met:
(a) The aggregate market share of the parties on any relevant market within the Community affected by the agreement does not exceed 5%, and
(b) in the case of horizontal agreements, the aggregate annual Community turnover of the undertakings concerned … in the products covered by the agreement does not exceed 40 million euro. …
…
53. The Commission will also hold the view that where an agreement by its very nature is capable of affecting trade between Member States, for example, because it concerns imports and exports or covers several Member States, there is a rebuttable positive presumption that such effects on trade are appreciable when the turnover of the parties in the products covered by the agreement calculated as indicated in paragraphs 52 and 54 exceeds 40 million euro. In the case of agreements that by their very nature are capable of affecting trade between Member States it can also often be presumed that such effects are appreciable when the market share of the parties exceeds the 5% threshold …. However, this presumption does not apply where the agreement covers only part of a Member State …
54. With regard to the threshold of 40 million euro … the turnover is calculated on the basis of total Community sales excluding tax during the previous financial year by the undertakings concerned, of the products covered by the agreement …. Sales between entities that form part of the same undertaking are excluded …
55. In order to apply the market share threshold, it is necessary to determine the relevant market (41). This consists of the relevant product market and the relevant geographic market. The market shares are to be calculated on the basis of sales value data or, where appropriate, purchase value data. If value data are not available, estimates based on other reliable market information, including volume data, may be used.’
3. Footnote 41 to point 55 of the Guidelines on the effect on trade states that, when defining the relevant market, reference should be made to the Notice on the definition of the relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5) (‘the Notice on the definition of the market’).
4. The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2) (‘the Guidelines on the method of setting fines’) provide, under the heading ‘Basic amount of the fine’, as follows:
‘…
A. Calculation of the value of sales
13. In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the [European Economic Area (EEA)]. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement (hereafter “value of sales”).
…
B. Determination of the basic amount of the fine
19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.
…
21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.
22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
23. Horizontal price-fixing, market-sharing and output-limitation agreements [7], which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.
…
25. In addition, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15% and 25% of the value of sales … in order to deter undertakings from even entering into horizontal price-fixing … agreements. … For the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22.
…’
5. Footnote 2 to point 23 of the Guidelines on the method of setting fines states that such agreements include concerted practices and decisions by associations of undertakings within the meaning of Article 81 EC.
6. Under the heading ‘Adjustments to the basic amount’, the Guidelines on the method of setting fines provide as follows:
‘F. Ability to pay
35. In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.’
7. Under the heading ‘Final considerations’, point 37 of the Guidelines on the method of setting fines provides as follows:
‘Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.’
II – Background to the dispute and the contested decision
8. The facts giving rise to the dispute and the contested decision, as set out in paragraphs 1 to 21 of the judgment under appeal, may be summarised as follows.
9. In the contested decision, the Commission found that the addressees of that decision – one of which was Ziegler (whose consolidated turnover in the financial year ending 31 December 2006 was EUR 244 420 326) – had participated in a cartel in the international removal services sector in Belgium by fixing prices, sharing customers and manipulating the procedure for the submission of tenders and thereby committed a single and continuous infringement of Article 81 EC, or must be held liable for such an infringement, for part or the whole of the period from October 1984 to September 2003.
10. The services concerned by the infringement include removals of goods from or to Belgium, both for natural persons and for undertakings or public institutions. In view of the fact that the international removal companies in question are all located in Belgium and that the activities of the cartel took place there, Belgium was considered to be the geographic centre of the cartel. The combined turnover of the cartel members for those international removal services was estimated by the Commission at EUR 41 million for 2002. Since the size of the sector was estimated at approximately EUR 83 million, the combined market share held by the undertakings involved was therefore considered to account for approximately 50% of the sector concerned.
11. The Commission stated in the contested decision that one of the aims of the cartel was to establish and maintain high prices and to share the market, and the cartel itself took various forms: agreements on prices, agreements on sharing the market by means of a system of false quotes known as ‘cover quotes’, and agreements on a system of financial compensation, known as ‘commissions’, for rejected offers or for not quoting at all.
12. In the contested decision, the Commission found that, between 1984 and the early 1990s, the cartel had operated, inter alia, on the basis of written price-fixing agreements, the ‘commission’ and ‘cover quote’ practices being introduced at the same time. According to that decision, as was stated in the judgment under appeal, the ‘commissions’ practice was to be treated as the indirect fixing of prices for international removal services in Belgium, since the cartel members issued invoices to each other for commissions on rejected offers or offers not made, referring to fictitious services, and the amount represented by those commissions was, moreover, invoiced to the customers.
13. As regards ‘cover quotes’, the Commission stated in the contested decision that, through the submission of such quotes, the removal company which wanted the contract ensured that the customer paying for the removal received several quotes. To that end, that company indicated to its competitors the total price that they were to quote for the planned removal, which was higher than the price quoted by the company itself. Thus the system in operation was one of fictitious quotes submitted by companies which did not intend to carry out the removal. The Commission took the view that that practice constituted a manipulation of the tendering procedure to ensure that the price quoted for a removal was higher than it would have been in a competitive environment.
14. The Commission found in the contested decision that those arrangements were in place until 2003 and that those complex activities had the same object: price-fixing and market-sharing and, thereby, the distortion of competition.
15. In the light of those factors, the Commission adopted the contested decision, Article 1 of which is worded as follows:
‘By directly and indirectly fixing prices for international removal services in Belgium, sharing part of the market, and manipulating the procedure for the submission of tenders, the following undertakings have infringed Article 81(1) [EC] and Article 53(1) of the [Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3)] in the periods indicated:
…
(j) [Ziegler], from 4 October 1984 to 8 September 2003.’
16. Consequently, under Article 2(l) of the contested decision, the Commission imposed a fine of EUR 9.2 million on Ziegler, calculated in accordance with the methodology set out in the Guidelines on the method of setting fines.
17. On 24 July 2009, the Commission adopted Decision C(2009) 5810 final amending the contested decision by reducing by approximately EUR 600 000 the value of the sales of another addressee of the contested decision. As that value had been taken as the basis of the calculation of the fine imposed on that addressee, the Commission reduced the amount of that fine.
III – The proceedings before the General Court and the judgment under appeal
18. By application lodged at the Registry of the General Court on 3 June 2008, Ziegler brought an action for annulment of the contested decision or, in the alternative, annulment of the fine imposed on it or, in the further alternative, a substantial reduction of that fine. Ziegler also requested the General Court to order that the full administrative file be lodged at the Court Registry, pending judgment.
19. In parallel with that action, Ziegler filed an application for interim measures, seeking, inter alia, a stay of execution of Article 2 of the contested decision, in so far as it imposed a fine on it. That application was refused by order of the President of the General Court of 15 January 2009 in Case T‑199/08 R Ziegler v Commission , the appeal lodged against that decision subsequently being dismissed by order of the President of the Court of Justice of 30 April 2010 in Case C‑113/09 P(R) Ziegler v Commission .
20. Ziegler relied on nine pleas in law in support of its action, namely five principal pleas, seeking annulment of the contested decision, and four pleas in the alternative, seeking the annulment or reduction of the fine.
21. By the judgment under appeal, the General Court granted in part Ziegler’s request that it order that the administrative file be lodged at the Court Registry. However, it dismissed all the pleas relied on by Ziegler and, as a consequence, rejected the action in its entirety, ordering Ziegler to pay the costs. The Court’s decision was based, inter alia, on the following considerations.
22. In its analysis of the first plea seeking annulment of the contested decision, alleging manifest errors of assessment and errors of law in the assessment of the conditions necessary for the application of Article 81(1) EC, the General Court first of all dismissed, at paragraphs 41 to 46 of the judgment under appeal, the Commission’s arguments that it was not necessary to define the relevant market in the case of obvious restrictions of competition. The General Court stated that the Commission is under an obligation to define the market in particular where it is impossible, without such a definition, to determine whether the agreement at issue is liable to affect trade between Member States and that, in the present case, Ziegler was entitled to call into question the Commission’s assessment of that condition for the application of Article 81 EC.
23. Next, at paragraphs 56 to 63 of the judgment under appeal, the General Court found that the Commission had failed to prove that the EUR 40 million threshold set out at point 53 of the Guidelines on the effect on trade had been reached. According to the General Court, it was necessary, when estimating the size of the market for the purposes of ascertaining whether there was an appreciable effect on trade between Member States, for the turnover achieved as a subcontractor to be deducted from the turnover achieved from the services in question. That court found that once the turnover achieved as a subcontractor was deducted, the EUR 40 million threshold was no longer reached.
24. Lastly, after finding, at paragraph 48 of the judgment under appeal, that the argument put forward by Ziegler by way of response, concerning the 5% market share threshold set out at point 53 of the Guidelines on the effect on trade, simply supplemented the plea calling into question the evidence of any appreciable effect on trade between Member States and was therefore admissible, the General Court went on to analyse that argument at paragraphs 64 to 74 of the judgment under appeal. It stated in that regard, inter alia, that the Commission had failed to comply with the obligation to define the relevant market, as it was required to by point 55 of those guidelines. However, it took the view that, in the circumstances of the case, the Commission had established to the requisite legal standard that the 5% market share threshold had been exceeded, since it had provided a sufficiently detailed description of the relevant sector for it to be possible to ascertain whether that threshold had been reached. It therefore held, at paragraph 72 of the judgment under appeal, that, ‘exceptionally’, the Commission was entitled to base its decision on that threshold without expressly determining the market within the meaning of point 55 of those guidelines.
25. In its analysis of the first part of the third plea seeking annulment of the contested decision, alleging breach of the obligation to state reasons with regard to the calculation of the basic amount of the fine, the General Court stated, inter alia, at paragraphs 88 to 94 of the judgment under appeal, that it was desirable for the Commission to augment its reasoning as to the calculation of fines, that the Guidelines on the method of setting fines adopted in 2006 had brought about a fundamental change in the method of setting fines and that, in those circumstances, it was no longer possible for the Commission, in principle, to state reasons only for the classification of an infringement as ‘very serious’ and to omit to justify the choice of the proportion of the value of sales taken into account. It pointed out that, in the present case, the Commission had set that percentage at 17%, the only reasons given for that choice being the ‘very serious’ nature of the infringement. In that regard, that court stated, at paragraph 93 of the judgment under appeal, that ‘[t]hat reasoning can be sufficient only where the Commission applies a percentage very close to the lower end of the scale laid down for the most serious restrictions’ and that ‘had the Commission wished to apply a higher percentage, it would have had to provide more detailed reasons’. The General Court added, at paragraph 94 of that judgment, that those considerations were also valid as regards the additional amount applied as a deterrent.
26. With regard to the fourth plea seeking annulment of the contested decision, alleging infringement of the right to fair legal process and the general principle of good administration, the General Court stated, at paragraphs 103 to 107 of the judgment under appeal, that Ziegler had not called into question the Commission’s competence, in the present case, to adopt a decision in relation to a proceeding under Article 81 EC. It also stated that the lack of objectivity allegedly shown by the Commission did not constitute an infringement of the rights of the defence capable of leading to annulment of the contested decision but must be placed in the context of the review of the assessment of the evidence or of the statement of reasons for the decision. It therefore held that the plea in question was ineffective as a plea for annulment. Nevertheless, the General Court pointed out, for the sake of completeness, that that plea was also unfounded. Indeed, in its view, the matters raised by Ziegler were not of such a kind as to demonstrate that the alleged bias of the Commission or of one of its officials was reflected in the contested decision or that the Commission was biased in investigating the case or how the conduct which certain Commission officials were accused of, even if proved, could have infringed the right to fair legal process.
27. In its analysis of the last plea, seeking annulment of or a reduction in the fine on account of exceptional circumstances, the General Court examined the arguments by which Ziegler pleaded, in essence, its inability to pay the fine and unequal treatment vis‑à‑vis another undertaking to which the contested decision was addressed. It pointed out, inter alia, at paragraphs 165 to 169 of the judgment under appeal, that point 35 of the Guidelines on the method of setting fines imposed two cumulative conditions for its application and that the Commission’s assessment – that the fact that the fine imposed on Ziegler accounted for only 3.76% of its worldwide turnover in 2006 suggested that the fine is unlikely to irretrievably jeopardise its economic viability – was abstract and took no account of the company’s specific circumstances. It therefore found that that assessment could not form a basis on which Ziegler’s application for a reduction could be rejected. However, since Ziegler did not challenge the Commission’s finding in the contested decision that the second condition, relating to the presence of a specific social and economic context, was not met, the General Court considered that the Commission was justified in rejecting Ziegler’s arguments seeking a reduction of the fine on account of its economic and financial difficulties.
28. As regards the purported infringement of the principle of equal treatment in relation to another undertaking at which the contested decision was addressed, the General Court pointed out, at paragraphs 170 and 171 of the judgment under appeal, that the Commission had also refused the request made by that other company pursuant to point 35 of the Guidelines on the method of setting fines, on account of the lack of a specific social and economic context. It also considered that while the Commission had in fact granted that company a reduction in the fine in accordance with point 37 of those guidelines, it was apparent from the contested decision that that undertaking’s position and that of Ziegler were not comparable and it was sufficient to note in that connection that the fine imposed on Ziegler was considerably below the 10% threshold of its total turnover, whereas, before it was reduced, the fine imposed on the other undertaking far exceeded that threshold.
IV – Forms of order sought by the parties
29. By its appeal, Ziegler claims that the Court should:
– declare the present appeal admissible and well founded;
– set aside the judgment under appeal and give final judgment itself on the dispute;
– grant the form of order sought at first instance and, accordingly annul the contested decision or, in the alternative, annul the fine imposed on the appellant in that decision or, in the further alternative, substantially reduce that fine; and
– order the Commission to pay the costs both at first instance and on appeal.
30. In its reply, Ziegler also claims that the Commission’s request seeking the substitution of certain grounds should be rejected as inadmissible or, at the very least, unfounded.
31. The Commission contends that the Court should:
– dismiss the appeal and substitute certain grounds of the judgment of the General Court;
– in the alternative, dismiss the action for annulment; and
– order Ziegler to pay the costs.
V – The appeal
32. Ziegler relies on four grounds of appeal.
A – The first ground of appeal, alleging errors of law in the assessment of the evidence of an appreciable effect on trade between Member States
33. Ziegler divides its first ground of appeal into three parts, the first concerning the obligation to define the relevant market and the second and third concerning, in essence, the 5% market share threshold set out at point 53 of the Guidelines on the method of setting fines. However, the Commission has requested that the Court first of all grant leave for the substitution of certain grounds, which, in its view, will lead to the rejection of the first ground of appeal.
1. The Commission’s request for new grounds to be substituted
a) Arguments of the parties
34. First, the Commission submits that the purpose of the Guidelines on the effect on trade is not to render the standard of the requirement of proof of an appreciable effect on trade between Member States more stringent than that established by case‑law. Whereas it has a certain discretion concerning the calculation of fines, the Commission has no leeway to come to the view that a cartel which has an appreciable effect on trade between Member States might not be caught by the prohibition laid down in Article 81 EC. Therefore, the thresholds set out at points 52 and 53 of the Guidelines on the effect on trade are merely indicative. Similarly, no obligation to define the market may be inferred from point 55 of those guidelines in cases, such as those involving cartels, in which, as is clear from case‑law, such a definition is unnecessary. The grounds set out at paragraphs 64 to 74 of the judgment under appeal are therefore incorrect and should be replaced.
35. Second, the Commission is of the view that the General Court erred in law by confusing the term ‘turnover’ within the meaning of points 52 and 53 of the Guidelines on the effect on trade with the term ‘value of sales’ used in point 13 of the Guidelines on the method of setting fines, and by taking the view that turnover within the meaning of points 52 and 53 could not include the turnover achieved as sub‑contractors. Subcontracting is in fact a relevant economic activity for the purpose of determining whether trade between Member States may be regarded as being appreciably affected, even though it should not be taken into account in calculating the fine. The Commission therefore requests that new grounds be substituted for the grounds set out at paragraphs 56 to 63 of the judgment under appeal, in which the General Court concluded, incorrectly, that it had not been proven that the EUR 40 million threshold was exceeded.
36. Third, the Commission requests that new grounds be substituted for the grounds set out at paragraphs 40 to 50 of the judgment under appeal, in particular those set out at paragraph 48. It contends that the General Court was incorrect to conclude that Ziegler’s argument relating to the 5% market share threshold was admissible. It is not possible to infer that argument from the application initiating the proceedings, and it should therefore have been regarded not as supplementing a plea already raised but as a new limb of a plea and, as such, inadmissible.
37. Ziegler maintains that the requests for substitution of grounds are inadmissible, since they have no effect on the operative part of the judgment under appeal and are imprecise. They are, in any event, unfounded.
38. In first place, by establishing, in the Guidelines on the effect on trade, thresholds which are not to be found in case‑law, the Commission must have intended to limit the scope of its discretion as regards the application of the condition requiring there to be an appreciable effect on trade between Member States. It cannot therefore depart from those guidelines without providing adequate reasons. Moreover, where it chooses to apply them, as in the present case, the Commission is bound to adhere to them.
39. In second place, no support is to be found for the distinction which the Commission claims exists between the terms ‘value of sales’ and ‘turnover’ in the wording or the spirit of the provisions concerned or, a fortiori , in the case‑law.
40. In third place, Ziegler maintains that the argument presented before the General Court concerning the 5% market share threshold was admissible because it supplemented a plea claiming that there was no appreciable effect on trade between Member States.
b) Findings of the Court
41. With regard to the admissibility of the requests at issue, disputed by Ziegler, it should be noted, first, that they cannot be dismissed as inadmissible on the ground that they are imprecise. For each of the requests submitted, the Commission has identified precisely the passages of the judgment under appeal which it considers to be incorrect in law, the grounds on which it considers them to be so and the grounds which, in its view, the General Court should have established if it was not to err in law, namely those which the Commission raised before it in its defence.
42. Second, according to the Court’s settled case-law, for a request for substitution of grounds to be admissible, the appellant must have an interest in bringing proceedings, in so far as the request must be capable, if successful, of procuring an advantage to the party making it. That may be the case where the request for substitution of grounds amounts to a defence to one of the applicant’s pleas (see, to that effect, Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission [2009] ECR I‑9291, paragraph 23, and the judgment of 21 December 2011 in Case C‑329/09 P Iride v Commission , paragraphs 48 to 51).
43. In the present case, with regard to the first request, concerning the grounds relating to the concept of an ‘appreciable effect on trade between Member States’ and the obligation to define the relevant market, it should be noted that if the General Court erred in law in holding that, in view of the binding nature of the Guidelines on the effect on trade, the Commission was required to define the relevant market, the first part of the first ground of appeal relied on by Ziegler would be ineffective. Indeed, Ziegler would therefore no longer be in a position to claim that the General Court incorrectly exempted the Commission from its obligation to define the market. As a consequence, the Commission has an interest in making that request, which is therefore admissible.
44. As regards the second request, concerning the grounds relating to whether or not the EUR 40 million threshold was exceeded, if it were established that the General Court, in breach of the law, had confused the term ‘value of sales’ used in the Guidelines on the method of setting fines with the term ‘turnover’ within the meaning of the Guidelines on the effect on trade and as a result inferred, incorrectly, that that threshold had not been reached, it would have to be found that it had been established that that threshold was exceeded. In that case, the second and third parts of Ziegler’s first ground of appeal, relating solely to the assessment of the 5% market share threshold, would be ineffective. It follows that the Commission also has an interest in making that request, which is therefore also admissible.
45. With regard to the third request, concerning the grounds relating to the admissibility of Ziegler’s argument on the 5% market share threshold, it is sufficient to observe, without there being any need to rule on its admissibility, that it must in any event be rejected as unfounded (see, by analogy, Case C‑233/02 France v Commission [2004] ECR I‑2759, paragraph 26). | 31. That derogation covers principally activities engaged in by bodies governed by public law acting as public authorities, which, while fully economic in nature, are closely linked to the exercise of rights and powers of public authority. In those circumstances, the fact that such bodies are not subject to VAT on those activities does not potentially have an anticompetitive effect, inasmuch as they are generally engaged in exclusively, or almost exclusively, by the public sector. | 0 |
12,424 | 17 As noted in paragraph 6 above, care allowance is included on the list of special non-contributory cash benefits within the meaning of Article 4(2a) of Regulation No 1408/71 which forms Annex IIa to that regulation. The Austrian Government submits that the inclusion of a benefit in that list suffices for it to be classified as a special non-contributory benefit. It bases its argument on the judgments in Case C-20/96 Snares [1997] ECR I-6057, Case C-297/96 Partridge [1998] ECR I-3467 and Case C-90/97 Swaddling [1999] ECR I-1075. In paragraph 30 of Snares the Court held that the fact that legislation on disability living allowance is referred to in Annex IIa to Regulation No 1408/71 is to be accepted as establishing that benefits granted under that legislation are special non-contributory benefits. In paragraph 31 of Partridge and paragraph 24 of Swaddling the Court used that analysis to determine the legal regime governing, respectively, attendance allowance and income support. It should also be observed that in those three cases the special non-contributory character of the benefits in question was not discussed. | 61 As a national of a Member State lawfully residing in the territory of another Member State, the appellant in the main proceedings comes within the scope ratione personae of the provisions of the Treaty on European citizenship. | 0 |
12,425 | 69. Although it is thus for the Member States to legislate as regards the legal effects of cancellation, that power must be exercised in accordance with Community law and, in particular, the rules of the Directive interpreted in the light of its objective and in such a way as to ensure that it is fully effective. In fulfilling their obligations under a Directive the Member States are to take all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues (Case C-336/97 Commission v Italy [1999] ECR I-3771, paragraph 19, and Case C-324/01 Commission v Belgium [2002] ECR I-11197, paragraph 18). | 27 In the circumstances considered in these proceedings, part-time employees do receive the same overall pay as full-time employees for the same number of hours worked. | 0 |
12,426 | 37
Thus, failing effective review of the potential unfairness of the terms of a contract from which the right to enforcement arises, observance of the rights conferred under Directive 93/13 cannot be guaranteed (see, to that effect, judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 59, and of 18 February 2016, FinanmadridEFC, C‑49/14, EU:C:2016:98, paragraph 46). | 46
In that context, it must be stated that such a procedural arrangement is liable to undermine the effectiveness of the protection intended by Directive 93/13. Such effective protection of the rights under that directive can be guaranteed only provided that the national procedural system allows the court, during the order for payment proceedings or the enforcement proceedings concerning an order for payment, to check of its own motion whether terms of the contract concerned are unfair. | 1 |
12,427 | 67. In that regard, it is for the national court to interpret the clause conferring jurisdiction invoked before it in order to determine which disputes fall within its scope (judgments in Powell Duffryn , C‑214/89, EU:C:1992:115, paragraph 37, and in Benincasa , C‑269/95, EU:C:1997:337, paragraph 31). | 36. Since Article 7(1) of Directive 2003/88 fulfils the conditions required to produce a direct effect, it should also be noted that the CICOA, one of the two respondents in the main proceedings and Ms Dominguez’s employer, is a body operating in the field of social security. | 0 |
12,428 | 23. The Court has further held (Case 152/84 Marshall [1986] ECR 723, paragraph 49, and Foster and Others , cited above, paragraph 17) that where a person is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether as employer or as public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law. | 17 The Court further held in its judgment in Case 152/84 Marshall, paragraph 49, that where a person is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether as employer or as public authority . In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law . | 1 |
12,429 | 17
It should be borne in mind that, in the judgment of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764, paragraphs 47 and 54), the Court held that the distribution of a signal by means of TV sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes a communication to the public within the meaning of Article 3(1) of Directive 2001/29, and that the private nature of hotel rooms by such a hotel does not preclude the communication of a work by those means from constituting a communication to the public within the meaning of Article 3(1) of Directive 2001/29. | 24. It is appropriate to recall that, in accordance with settled case-law, whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the 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, inter alia, Case C‑121/07 Commission v France [2008] ECR I‑0000, paragraph 22). | 0 |
12,430 | 40
Apart from the fact, pointed out by the Advocate General in point 20 of his Opinion, that that conclusion follows implicitly from the case‑law of the Court (see, to that effect, judgment of 20 June 2013, Riežniece, C‑7/12, EU:C:2013:410, paragraphs 12, 17, 32, 50 and 51), the opposing view, defended by the Land of Berlin, finds no basis in the text of the revised Framework Agreement, Clause 5 of which refers, in paragraphs 1 and 2 respectively, to the right to return to the same job ‘at the end of parental leave’ and the right to maintain rights acquired or in the process of being acquired ‘until the end of parental leave’. | 17 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT ARTICLE 10 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT A PERSON MAY NOT BE PRECLUDED FROM ACQUIRING OR RETAINING ENTITLEMENT TO THE BENEFITS, PENSIONS AND ALLOWANCES REFERRED TO IN THAT PROVISION ON THE SOLE GROUND THAT HE DOES NOT RESIDE WITHIN THE TERRITORY OF THE MEMBER STATE IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED . | 0 |
12,431 | 15 Furthermore, the Court has already held that the allocation of an income equal to the social minimum formed an integral part of the social policy of the Member States and that those States enjoyed a reasonable margin of discretion as regards both the nature of the protective measures in the social sphere and the detailed arrangements for their implementation (judgment in Commission v Belgium, cited above, paragraphs 22 and 23). | 59. Dès lors que l’article 91, paragraphe 12, du règlement n° 1623/2000 ne reflète pas un changement d’appréciation du législateur de l’Union quant au caractère adéquat du régime de sanction qui avait été spécifiquement défini à l’article 5 du règlement n° 360/95 en lien avec la vente de deux lots déterminés d’alcool, le principe d’application rétroactive de la sanction la moins sévère, tel qu’énoncé à l’article 2, paragraphe 2, du règlement n° 2988/95, ne saurait être utilement invoqué (voir, en ce sens, arrêt Jager, précité, point 70). | 0 |
12,432 | 33. As far as the concept of ‘immovable property’ is concerned, it should be borne in mind that the Court has already held that one of the essential characteristics of such property is that it is attached to a specific part of the territory of the Member State in which it is located (see, to that effect, Heger , paragraph 20). | 50. As the Advocate General pointed out at point 44 of her Opinion, in this regard it does not matter whether parental responsibility is affected by a protective measure taken by the State or by a decision which is taken on the initiative of the person or persons with rights of custody. | 0 |
12,433 | 17. Article 9(1)(c) does permit authorisation, in compliance with the conditions set out in that provision, for the hunting of species listed in Annex II during the periods referred to in Article 7(4) of the Directive, inter alia during their return to their rearing grounds (see, to that effect, Case C-182/02 Ligue pour la protection des oiseaux and Others [2003] ECR I‑12105, paragraphs 9 to 11). | 54 It follows that it is for the trader alleging consent to prove it and not for the trade mark proprietor to demonstrate its absence. | 0 |
12,434 | 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). | 38. However, the definitive assessment in that regard belongs, as rightly pointed out by the Netherlands Government, to the competent national courts which are charged with the task of determining whether the material acts at issue constitute a set of facts which are inextricably linked together in time, in space and by their subject-matter. | 0 |
12,435 | 54. There is also a single supply where one or more elements are to be regarded as constituting the principal supply, while other elements are to be regarded, by contrast, as one or more ancillary supplies which share the tax treatment of the principal supply. In particular, a supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal service supplied (see, inter alia, Case C‑349/96 CPP [1999] ECR I‑973, paragraph 30; Levob Verzekeringen and OV Bank , paragraph 21; Case C‑572/07 RLRE Tellmer Property [2009] ECR I‑4983, paragraph 18; and Case C‑276/09 Everything Everywhere [2010] ECR I‑0000, paragraphs 24 and 25). | 35 That is the case where, under a system of differential taxation of the kind at issue in the main proceedings, imported electricity distributed via the national network is subject, whatever its method of production, to a flat-rate duty which is higher than the lowest duty charged on electricity of domestic origin distributed via the national network. | 0 |
12,436 | 23 In determining the scope of any derogation from a fundamental right such as the equal treatment of men and women, the principle of proportionality, one of the general principles of Community law, must also be observed, as the Court pointed out in paragraph 38 of Johnston and paragraph 26 of Sirdar. That principle requires that derogations remain within the limits of what is appropriate and necessary in order to achieve the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public security which determine the context in which the activities in question are to be performed. | 108 If the exclusive right of the fund to manage the supplementary pension scheme for all workers in a given sector were removed, undertakings with young employees in good health engaged in non-dangerous activities would seek more advantageous insurance terms from private insurers. The progressive departure of `good' risks would leave the sectoral pension fund with responsibility for an increasing share of `bad' risks, thereby increasing the cost of pensions for workers, particularly those in small and medium-sized undertakings with older employees engaged in dangerous activities, to which the fund could no longer offer pensions at an acceptable cost. | 0 |
12,437 | 26. In that regard, first, it is immaterial whether that operator is itself a contracting authority (see, to that effect, Case C-107/98 Teckal [1999] ECR I-8121, paragraph 51). It is also immaterial whether the body concerned is primarily profit-making, whether it is structured as an undertaking or whether it has a continuous presence on the market (see, to that effect, CoNISMa , paragraphs 30 and 45). | 45. Finally, it is clear that the agreement was concluded for pecuniary interest. The pecuniary interest in a contract refers to the consideration paid to the contractor on account of the execution of works intended for the contracting authority (see, to that effect, Ordine degli Architetti and Others , paragraph 77). Under the terms of the agreement, SEDL is to receive a sum from the municipality of Roanne as consideration for the transfer of the car park. The municipality also undertakes to contribute to the costs of all the works to be executed. Finally, under the agreement, SEDL is entitled to obtain income from third parties as consideration for the sale of the works executed. | 0 |
12,438 | 118 On that point, it need only be observed that, as the Commission pointed out, that institution may in any event, upon its own initiative, find that there is an infringement of Articles 85 and 86 of the Treaty (see, inter alia, Joined Cases 32/78 and 36/78 to 82/78 BMW Belgium and Others v Commission [1979] ECR 2435, paragraph 18). | 7. Category No 12 of Annex XVI A is identical to Category No 12 in Annex I A to Directive 92/50. | 0 |
12,439 | 27. It must be observed that according to settled case-law the definition of ‘body governed by public law’, a concept of Community law which must be given an autonomous and uniform interpretation throughout the Community, is defined in functional terms exclusively under the three cumulative conditions in the second subparagraph of Article 1(b) of Directives 93/36 and 93/37 (see, to that effect, Mannesmann Anlagenbau Austria and Others , paragraphs 20 and 21; Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraphs 51 to 53; Case C-214/00 Commission v Spain [2003] ECR I-4667, paragraphs 52 and 53; and Case C-283/00 Commission v Spain [2003] ECR I-11697, paragraph 69). | 121. Bien que la République de Pologne n’ait pas soulevé de fin de non‑recevoir tirée de l’irrecevabilité de ce grief, il convient néanmoins de relever, à titre liminaire, que la Cour peut examiner d’office si les conditions prévues à l’article 258 TFUE pour l’introduction d’un recours en manquement sont remplies (voir, notamment, arrêts du 8 mars 2012, Commission/Portugal, C‑524/10, point 64, et du 15 novembre 2012, Commission/Portugal, C‑34/11, point 42). | 0 |
12,440 | 36. Where, after the entry into force of the Sixth Directive, the legislation of a Member State is amended so as to reduce the scope of existing exemptions and thereby brings itself into line with the objective of the Sixth Directive, that legislation must be considered to be covered by the derogation in the second subparagraph of Article 17(6) of the Sixth Directive and is not in breach of Article 17(2) (see Case C‑345/99 Commission v France , paragraph 22; Metropol and Stadler , paragraph 45; and Danfoss and AstraZeneca , paragraph 32). | 39. À cet égard, il convient d’ajouter que, ainsi qu’il ressort du dossier, c’est seulement à la fin du mois d’avril 2009, plus de cinq mois après le délai imparti pour la récupération effective des aides illégales, que les décisions nationales visant à récupérer ces aides, sans intérêts, ont été notifiées aux entreprises concernées. | 0 |
12,441 | 42. Constituent des restrictions à la libre prestation des services les mesures nationales qui interdisent, gênent ou rendent moins attrayant l’exercice de cette liberté (voir, notamment, arrêts Jobra, C‑330/07, EU:C:2008:685, point 19; Tankreederei I, C‑287/10, EU:C:2010:827, point 15, et X, C‑498/10, EU:C:2012:635, point 22). | 23 As a preliminary point, it must be noted that any derogation from or exception to a general rule must be interpreted strictly. | 0 |
12,442 | 63 As regards the argument concerning the practical difficulties due to the fact that most of the vessels flying the flag of the United Kingdom which are charged with overfishing were not operating in the territorial waters of that Member State, it should be recalled that, according to settled case-law, a Member State cannot plead provisions, practices or situations in its internal legal system to justify non-compliance with obligations arising from rules of Community law (see Case C-52/91 Commission v Netherlands [1993] ECR I-3069, paragraph 36, and Joined Cases C-418/00 and C-419/00 Commission v France, cited above, paragraph 59). That argument therefore cannot be upheld. | 27 The principle of a true and fair view requires that the accounts reflect the activities and transactions which they are supposed to describe and that the accounting information be given in the form judged to be the soundest and most appropriate for satisfying third parties' needs for information, without harming the interests of the company. | 0 |
12,443 | 25. It should be pointed out that, as is clear from Article 32d(1) CS and Article 51 of the ECSC Statute of the Court of Justice, an appeal lies on a point of law only. Therefore, the Court of First Instance has sole jurisdiction to find and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted (see, to that effect, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraphs 49 and 66; Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 194; and Case C-312/00 P Commission v Camar and Tico [2002] ECR I-11355, paragraph 69). | 52. In that regard, it is necessary, first of all, to take into consideration the first sentence of Article 6(1) of Regulation No 1367/2006. | 0 |
12,444 | 58. Therefore it is possible not only that, because of linguistic, cultural, social and economic differences, a trade mark which is devoid of distinctive character in one Member State is not so in another Member State (see, to that effect, Case C‑421/04 Matratzen Concord [2006] ECR I‑2303, paragraph 25, and, by analogy, in respect of the misleading nature of a trade mark, Case C‑313/94 Graffione [1996] ECR I‑6039, paragraph 22), but also that a mark devoid of distinctive character at Community level is not so in a Member State. | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
12,445 | 27
According to the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objective pursued by the rules of which it is part (judgments of 26 January 2012 in ADV Allround, C‑218/10, EU:C:2012:35, paragraph 26, and of 19 July 2012 in A, C‑33/11, EU:C:2012:482, paragraph 27 and the case law cited). Similarly, the meaning and scope of terms for which EU law provides no definition must be determined by reference to their usual meaning in everyday language, while account is also taken of the context in which they occur and the purposes of the rules in question (see, to that effect, judgment of 13 December 2012 in BLV Wohn- und Gewerbebau, C‑395/11, EU:C:2012:799, paragraph 25 and the case-law cited). | 42. Enfin, s’agissant de l’argument de la République italienne tiré de l’impossibilité de récupérer les aides accordées à Sardegna Flotta Sarda en raison de l’état de cessation d’activité de cette dernière, il est de jurisprudence constante que le fait que des entreprises bénéficiaires sont en difficulté ou en faillite n’affecte pas l’obligation de récupération de l’aide, l’État membre étant tenu, selon le cas, de provoquer la liquidation de la société (voir, notamment, arrêts du 15 janvier 1986, Commission/Belgique, 52/84, Rec. p. 89, point 14, ainsi que du 8 mai 2003, Italie et SIM 2 Multimedia/Commission, C‑328/99 et C-399/00, Rec. p. I-4035, point 69), de faire inscrire sa créance au passif de l’entreprise (voir, notamment, arrêts du 21 mars 1990, Belgique/Commission, dit «Tubemeuse», C-142/87, Rec. p. I‑959, points 61 à 64; Italie et SIM 2 Multimedia/Commission, précité, point 85, ainsi que du 14 avril 2011, Commission/Pologne, C‑331/09, Rec. p. I-2933, point 60) ou de prendre toute autre mesure permettant le remboursement de l’aide (arrêt du 6 décembre 2007, Commission/Italie, C-280/05, point 28). | 0 |
12,446 | 48
However, in the light of the ubiquitous nature of the information and content placed online on a website and the fact that the scope of their distribution is, in principle, universal (see, to that effect, judgment of 25 October 2011, eDate Advertising and Others, C‑509/09 and C‑161/10, EU:C:2011:685, paragraph 46), an application for the rectification of the former and the removal of the latter is a single and indivisible application and can, consequently, only be made before a court with jurisdiction to rule on the entirety of an application for compensation for damage pursuant to the case-law resulting from the judgments of 7 March 1995, Shevill and Others (C‑68/93, EU:C:1995:61, paragraphs 25, 26 and 32), and of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paragraphs 42 and 48), and not before a court that does not have jurisdiction to do so. | 68. A corollary of the principle of respect for the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence (see, to that effect, Case T-30/91 Solvay v Commission [1995] ECR II-1775, paragraph 81, and Case C-199/99 P Corus UK v Commission [2003] ECR I-0000, paragraphs 125 to 128). Those documents include both incriminating evidence and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (see Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraphs 9 and 11; Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I-4235, paragraph 75; and Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 315). | 0 |
12,447 | 40. It must first of all be stated that, in view of the objective character of the term ‘economic activities’, the fact that the activity of the public offices consists in the performance of duties which are conferred and regulated by law, in the public interest and without any business or commercial objective, is in that regard irrelevant. Indeed, Article 6 of the Sixth Directive expressly provides that certain activities carried on in pursuance of the law are to be subject to the system of VAT ( Commission v Netherlands , paragraph 10, Commission v Greece , paragraph 28). | 36. The words used leave the Member States some latitude as to the means to be adopted for the purposes of that protection. | 0 |
12,448 | 89
As the Court has previously pointed out, such an increase is also designed to protect the health and life of humans, animals and plants, which are among the public interest grounds listed in Article 36 TFEU (see judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 80 and the case-law cited). | 22 A CET EGARD, IL Y A LIEU DE RAPPELER QUE LE PRINCIPE DE LA PROTECTION DE LA CONFIANCE LEGITIME FAIT PARTIE DE L' ORDRE JURIDIQUE COMMUNAUTAIRE ( VOIR ARRET DU 3 MAI 1978, TOEPFER, 112/77, REC . P . 1019 ) ET QUE LE RESPECT DES PRINCIPES GENERAUX DU DROIT COMMUNAUTAIRE S' IMPOSE A TOUTE AUTORITE NATIONALE CHARGEE D' APPLIQUER LE DROIT COMMUNAUTAIRE ( VOIR ARRET DU 27 SEPTEMBRE 1979, ERIDANIA, 230/78, REC . P . 2749 ). EN CONSEQUENCE, L' AUTORITE NATIONALE CHARGEE D' APPLIQUER LE REGIME DES RESTITUTIONS A L' EXPORTATION DANS LE CADRE DE L' ORGANISATION COMMUNE DES MARCHES AGRICOLES EST TENUE DE RESPECTER LE PRINCIPE DE LA PROTECTION DE LA CONFIANCE LEGITIME DES OPERATEURS ECONOMIQUES . | 0 |
12,449 | 17. However, the referring court, still implicitly relying on the judgment in AG2R Prévoyance (C‑437/09, EU:C:2011:112), adopts the analysis in paragraphs 66 to 81 of that judgment and consequently considers that neither the addendum at issue nor the order extending the agreement is unlawful from the point of view of Articles 102 TFEU and 106 TFEU. It also rejects, as unrelated to those articles, the complaint that the appointment of the insurer was not preceded by any call for tenders. | 40 However, it is clear that no such legal relationship would exist between Skandia and Livbolaget's clients in the context of the scheme postulated by the two companies in the main proceedings. Skandia would have no contractual relationship with persons insured with Livbolaget and would assume no liability in respect of the insurance business carried out, since all risks would devolve wholly upon Livbolaget which would preserve its status of insurer for the purposes of Swedish civil law. | 0 |
12,450 | 26. It follows that prior authorisation within the meaning of Article 6(2) of Directive 2006/11 means that every request for authorisation for that purpose must be examined individually and cannot be tacit (see, with particular regard to Article 7 of Directive 76/464, Case C-230/00 Commission v Belgium [2001] ECR I-4591, paragraph 16). | 59. The Court of Justice has stated in this connection that, whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the EU Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature. Those Courts must, among other things, not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see Chalkor v Commission , paragraph 54 and case‑law cited). | 0 |
12,451 | 41. If, following the preliminary examination, the Commission finds that, notwithstanding the fact that the measure notified falls within the scope of Article 87(1) EC, it does not raise any doubts as to its compatibility with the common market, the Commission is to adopt a decision not to raise objections under Article 4(3) of Regulation No 659/1999 ( Commission v Kronoply and Kronotex , paragraph 44). | 53. As was noted in paragraph 39 of this judgment, the primary aim of Directive 93/37 is to open up public works contracts to Community competition. The purpose of that directive is to avoid the risk of the public authorities indulging in favouritism (see, to that effect, Ordine degli Architetti and Others , paragraph 75, and Lombardini and Mantovani , paragraph 35). | 0 |
12,452 | 37. In accordance with the established case law of the Court, it is for the national legal order to lay down detailed procedural rules to ensure the protection of the rights that operators derive from the direct effect of EU law, provided, however, that those detailed rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (judgments in Placanica and Others , EU:C:2007:13, paragraph 63, and Costa and Cifone , EU:C:2012:80, paragraph 51). | 52. Toutefois, cet intérêt à agir ne saurait exister que si l’illégalité alléguée est susceptible de se reproduire à l’avenir indépendamment des circonstances de l’affaire ayant donné lieu au recours formé par le requérant. | 0 |
12,453 | 81. It must be noted at the outset that it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, secondly, to assess those facts. However, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, inter alia, judgment in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 41 and the case-law cited). | 12 THIS DOUBLE AIM , WHICH IS AT ONCE ECONOMIC AND SOCIAL , SHOWS THAT THE PRINCIPLE OF EQUAL PAY FORMS PART OF THE FOUNDATIONS OF THE COMMUNITY .
| 0 |
12,454 | 29. It should be noted at the outset that, where a contract is to be awarded by the best-value-for-money procedure, in accordance with Article 97(2) of the Financial Regulation and Article 138(1) of the implementing rules, the contracting authority must define and specify in the tender specifications the award criteria enabling evaluation of the content of tenders. In addition, those criteria must, in accordance with Article 138(2) of the implementing rules, be justified by the subject of the contract. According to Article 138(3), the contracting authority must also specify, in the contract notice or in the tender specifications, the weighting it will apply to each of the criteria for determining the best value for money. Those provisions seek to ensure compliance with the principles of equal treatment and transparency at the stage of evaluation of tenders with a view to award of the contract (see, by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 21 and 22, and Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraphs 90 to 92). | 23. In addition, even where the sign is not affixed, there is use ‘in relation to goods or services’ within the meaning of that provision where the third party uses that sign in such a way that a link is established between the sign which constitutes the company, trade or shop name of the third party and the goods marketed or the services provided by the third party. | 0 |
12,455 | 42. On this point, first, it must be recalled that, where a statement recorded in Council minutes is not referred to in the wording of a provision of secondary legislation, it cannot be used for the purpose of interpreting that provision (see, in particular, Case C‑292/89 Antonissen [1991] ECR I‑745, paragraph 18, and Case C‑375/98 Epson Europe [2000] ECR I‑4243, paragraph 26). | 20 At paragraphs 49 and 50 of the judgment the Court pointed out that it was not disputed that the members of the college had available to them all the information they considered would assist them for the purposes of adopting the decision when the college had decided to issue the reasoned opinion, and held that in those circumstances the rules relating to the principle of collegiality had been complied with. | 0 |
12,456 | 16. Thus, according to the Court’s settled case-law, Member States may not, within the framework of the Authorisation Directive, levy any charges or fees in relation to the provision of networks and electronic communication services other than those provided for by that directive (see, to that effect, judgments in Vodafone España and France Telecom España , C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraphs 28 and 29, and in Belgacom and Mobistar , C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 30 and the case-law cited). | 70. The logical consequence of the finding that aid is unlawful is its removal by means of recovery in order to restore the previous situation (see, inter alia, judgments in Italy and SIM –– 2 Multimedia v Commission , C‑328/99 and C‑399/00, EU:C:2003:252, paragraph 66, and Mediaset v Commission , C‑403/10 P, EU:C:2011:533, paragraph 122). | 0 |
12,457 | 15 However, notwithstanding what the Court stated in Bulthuis-Griffioen, cited above, at paragraph 20, it cannot be inferred from the fact that Article 13A(1) of the Sixth Directive mentions different categories of economic operators that the exemptions provided for in that provision are confined to legal persons where it refers expressly to activities undertaken by `establishments' or `organisations', whilst in other cases an exemption may also be claimed by natural persons. | 30. That discretion covers not only the power to define the qualifications required to carry out the said professions, but also the power to define the specific medical-care activities which are covered by such professions. In fact, since the various qualifications acquired by the service providers do not necessarily prepare them to provide all types of care, a Member State is entitled to take the view, in the exercise of its discretion, that the definition of paramedical professions would be incomplete if it were limited to imposing general requirements as to the qualifications of providers, without specifying the care in respect of which they are qualified in the context of those professions. | 0 |
12,458 | 19. However, it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the national court of those provisions is correct (see, to that effect, Case C‑58/98 Corsten [2000] ECR I-7919, paragraph 24). The Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 10; Case C‑136/03 Dörr and Ünal [2005] ECR I‑4759, paragraph 46; and Case C‑419/04 Conseil général de la Vienne [2006] ECR I-5645, paragraph 24). | 82. Although the prohibition of manufacture at issue is not a provision aimed directly at improving the conditions for the functioning of the internal market, the fact remains that a measure adopted on the basis of Article 95 EC may incorporate such a provision so long as its purpose is to ensure that certain prohibitions concerning the internal market and imposed in pursuit of that object are not circumvented (see, to that effect, the tobacco advertising judgment, paragraph 100). | 0 |
12,459 | 23. The Court has stated that the decisive factor for the purposes of the application of Regulation No 1408/71 is that there must be a direct and sufficiently relevant link between the provision in question and the legislation governing the branches of social security listed in Article 4 of Regulation No 1408/71 (judgments in Rheinhold & Mahla , EU:C:1995:144, paragraph 23; Commission v France , EU:C:2000:84, paragraph 35; and Commission v France , EU:C:2000:85, paragraph 33). | 116. Moreover, as the Advocate General noted at point 161 of her Opinion, such an interpretation would render the reference in Clause 4(2) of the framework agreement to the principle of pro rata temporis meaningless, that principle being intended by definition only to apply to divisible performance, such as that deriving from financial employment conditions linked, for example, to remuneration and pensions. | 0 |
12,460 | 34. Although the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation ( Halifax and Others , paragraph 77), it is however for the national court to verify whether the factors constituting such an abuse are present in the case before it (see, inter alia, Eichsfelder Schlachtbetrieb , paragraph 40, and Case C‑279/05 Vonk Dairy Products [2007] ECR I‑239, paragraph 34). In that context, it should be stated that checking for abuse requires the referring court to take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue. | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
12,461 | 26 Directive 64/433 established, furthermore, a harmonised system of health inspections, based on the principle that the public health guarantees required by all the Member States are equivalent, which ensures the protection of health and at the same time the equal treatment of products. The purpose of that system is to transfer supervision to the exporting Member State (see Joined Cases 2/82 to 4/82 Delhaize Frères `Le Lion' v Belgian State [1983] ECR 2973, paragraph 11, and Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Carni and Others [1993] ECR I-6621, paragraph 25). | 33. In this respect, the Verein, the Austrian, German and French Governments and the Commission rightly point out that, a payment instrument must allow the payment service provider to verify that the payment order was initiated by a user authorised to do so in order for it to be considered to be personalised. | 0 |
12,462 | 57 In that regard, it should be observed that the Commission, in the exercise of its discretion, must take into consideration all the relevant matters of law and of fact in order to decide on what action to take in response to a complaint. More particularly, it must consider attentively all the matters of fact and of law which the complainant brings to its attention (Case 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045, paragraph 19, Case 298/83 CICCE v Commission [1985] ECR 1105, paragraph 18, Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 20, and Ufex and Others v Commission, cited above, paragraph 86). | 82. The substitution of an unfair term for a supplementary provision of national law is consistent with the objective of Article 6(1) of Directive 93/13, since, according to settled case-law, that provision is intended to substitute for the formal balance established by the contract between the rights and obligations of the parties real balance re-establishing equality between them, not to annul all contracts containing unfair terms (Case C‑453/10 Pereničová and Perenič EU:C:2012:144, paragraph 31, and Banco Español de Crédito EU:C:2012:349, paragraph 40 and case-law cited). | 0 |
12,463 | 15. In that connection, it should be pointed out that it is settled case-law that the need to provide an interpretation of Community law which will be of use to the referring court makes it necessary that the referring court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, inter alia, Case C-67/96 Albany [1999] ECR I‑5751, paragraph 39; Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I‑2549, paragraph 30; and Case C-506/04 Wilson [2006] ECR I‑8613, paragraph 38). | 21. Similarly, ‘employment conditions’ for the purposes of Clause 4(1) of the Framework Agreement covers pensions which depend on an employment relationship between worker and employer, excluding statutory social security pensions, which are determined less by that relationship than by considerations of social policy ( Bruno and Others , paragraph 42). | 0 |
12,464 | 29
It follows that, in the absence of EU rules concerning the procedural requirements attaching to the submission and examination of an application for subsidiary protection applicable in Ireland, it is for the domestic legal system of that Member State to determine those requirements, provided, first, that the requirements are not less favourable than those governing similar domestic situations (principle of equivalence) and, second, that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (see, to that effect, judgment of 8 May 2014, N., C‑604/12, EU:C:2014:302, paragraph 41 and the case-law cited). | 34. Cette règle doit être appliquée en conformité avec le principe de base de ladite directive, qui réside dans le fait que le système de la TVA vise à grever uniquement le consommateur final (voir, notamment, arrêt Elida Gibbs, précité, point 19, et ordonnance du 9 décembre 2011, Connoisseur Belgium, C‑69/11, point 21). | 0 |
12,465 | 29. In that regard, it should be noted, firstly, that the Court has held that agreements entered into within the framework of collective bargaining between employers and employees and intended to improve employment and working conditions must, by virtue of their nature and purpose, be regarded as not falling within the scope of Article 101(1) TFEU (see, to that effect, Albany , paragraph 60; Brentjens’ , paragraph 57; Drijvende Bokken , paragraph 47; Joined Cases C‑180/98 to C‑184/98 Pavlov and Others [2000] ECR I‑6451, paragraph 67; and Case C‑222/98 van der Woude [2000] ECR I‑7111, paragraph 22). | 41 The analysis, regarding full-time training, contained in the judgment in Carbonari and reviewed in paragraphs 33 to 39 of this judgment is entirely applicable to part-time training in specialised medicine. | 0 |
12,466 | 35. As regards the consequences of failure to observe the principle of equal treatment in a situation such as that in the main proceedings, it must be recalled that, in accordance with established case-law, where discrimination contrary to European Union law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category (see Case C-18/95 Terhoeve [1999] ECR I-345, paragraph 57; and Case C-399/09 Landtová [2011] ECR I-0000, paragraph 51). The disadvantaged person must therefore be placed in the same position as the person enjoying the advantage concerned. | 46. The Court has already held that a Member State may impose a registration tax on a motor vehicle registered in another Member State where that vehicle is intended to be used essentially in the first Member State on a permanent basis or where it is, in fact, used in that manner (see, to that effect, Cura Anlagen , paragraph 42; Commission v Denmark , paragraphs 75 to 78; Nadin and Nadin-Lux , paragraph 41; and Commission v Finland , paragraph 47, and the orders in van de Coevering , paragraph 24, and Vandermeir , paragraph 32). | 0 |
12,467 | 23. With regard to participation in an infringement that took place over several years rather than in individual anti-competitive meetings, it can be concluded from the case-law of the Court that the absence of public distancing forms only one factor amongst others to take into consideration with a view to establishing whether an undertaking has actually continued to participate in an infringement or has, on the contrary, ceased to do so (see, to that effect, judgment in Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 75). | 11 For the purposes of this provision, the term "the State" must be interpreted in functional terms . The aim of the directive, which is to ensure the effective attainment of freedom of establishment and freedom to provide services in respect of public works contracts, would be jeopardized if the provisions of the directive were to be held to be inapplicable solely because a public works contract is awarded by a body which, although it was set up to carry out tasks entrusted to it by legislation, is not formally a part of the State administration . | 0 |
12,468 | 43
In that regard, it is worthwhile bearing in mind that such an objective may be a reason of overriding public interest capable of justifying a restriction on fundamental freedoms, such as that at issue in the main proceedings (see, to that effect, judgment of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraphs 34 and 35). The Court has, moreover, previously held that the objective of combating criminality linked to betting and gambling is capable of justifying restrictions on fundamental freedoms under restrictive rules (see, to that effect, judgments of 12 September 2013, Biasci and Others, C‑660/11 and C‑8/12, EU:C:2013:550, paragraph 23, and of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 32). | 60 It follows that the grounds of appeal relied on by the appellant against the contested judgment and alleging infringement of Community law by the Court of First Instance are of no consequence and that its appeal must therefore be dismissed. | 0 |
12,469 | 36. It follows that, in a case such as the main proceedings, a rule of Community law as thus interpreted must be applied by an administrative body within the sphere of its competence even to legal relationships which arose and were formed before the Court gave its ruling on the request for interpretation (see Kühne & Heitz , paragraph 22, and, to this effect, Case C-347/00 Barreira Pérez [2002] ECR I‑8191, paragraph 44; Joined Cases C-453/02 and C-462/02 Linneweber and Akritidis [2005] ECR I‑1131, paragraph 41; and Case C-292/04 Meilicke and Others [2007] ECR I-1835, paragraph 34). | 39. Tout d’abord, il convient de rappeler que les articles 19 à 21 de la directive 92/83, lus en combinaison avec l’article 3 de la directive 92/84, règlent les taux minimaux d’accise sur l’alcool éthylique. Toutefois, une exception a été prévue à l’article 22, paragraphe 7, de la directive 92/83 pour la Hongrie, la République slovaque et la Roumanie. | 0 |
12,470 | 28. In fact, in view of the disadvantage to the employer in financial terms in the postponement of the right to deduction until the time the pension benefits are paid to the employee, national rules such as those at issue in the main proceedings are liable both to dissuade Swedish employers from taking out occupational pension insurance with institutions established in a Member State other than the Kingdom of Sweden and to dissuade those institutions from offering their services on the Swedish market (see, to that effect, Case C-118/96 Safir [1998] ECR I-1897, paragraph 30, and Case C-136/00 Danner [2002] ECR I-8147, paragraph 31).
Justification relied on | 57. However, no dual legal basis is possible where the procedures laid down for each legal basis are incompatible with each other ( titanium dioxide judgment, cited above, paragraphs 17 to 21, and Joined Cases C-164/97 and C-165/97 Parliament v Council [1999] ECR I-1139, paragraph 14). | 0 |
12,471 | 40. If those structures and the ground on which they stand cannot be classified as ‘buildings’ within the meaning of the first subparagraph of Article 12(2) of the VAT Directive, a distinction must be drawn depending on whether there are distinct supplies of land and of other elements or one single transaction consisting primarily of the supply of land (see, to that effect, Case C‑461/08 Don Bosco Onroerend Goed [2009] ECR I‑11079, paragraphs 35 to 38). It should also be ascertained whether the land in question falls within the definition of ‘building land’ in Article 12(3) of the VAT Directive. If so, the supplies would be taxable. If not, the supplies would be exempt in accordance with Article 135(1)(k) of the directive, subject to a possible right to opt for taxation. | 92. Il importe de rappeler à cet égard que, pour permettre au Tribunal de juger de l’utilité de mesures d’organisation de la procédure, la partie qui en fait la demande doit identifier les documents sollicités et fournir au Tribunal au moins un minimum d’éléments accréditant l’utilité de ces documents pour les besoins de l’instance (arrêt Baustahlgewebe/Commission, précité, point 93). | 0 |
12,472 | 27 As far as direct taxation is concerned, the Court has held, in cases relating to the taxation of income of natural persons, that the situations of residents and non-residents in a given State are not generally comparable, since there are objective differences between them from the point of view of the source of the income and the possibility of taking account of their ability to pay tax or their personal and family circumstances (Schumacker, cited above, paragraphs 31 to 32; Wielockx, cited above, paragraph 18; and Asscher, cited above, paragraph 41). However, it has explained that, in the case of a tax advantage denied to non-residents, a difference in treatment between the two categories of taxpayer might constitute discrimination within the meaning of the Treaty where there is no objective difference such as to justify different treatment on this point as between the two categories of taxpayers (Schumacker, cited above, paragraphs 36 to 38, and Asscher, cited above, paragraph 42). | 27. Next, it must be pointed out that the requirement that litigation should not be prohibitively expensive concerns all the costs arising from participation in the judicial proceedings (see, to that effect, Commission v Ireland , paragraph 92). | 0 |
12,473 | 51 Finally, as the Court held in paragraph 20 of Kalfelis, whilst it is true that disadvantages arise from different aspects of the same dispute being adjudicated upon by different courts, it must be pointed out, on the one hand, that a plaintiff is always entitled to bring his action in its entirety before the courts for the domicile of the defendant and, on the other, that Article 22 of the Convention allows the first court seised, in certain circumstances, to hear the case in its entirety provided that there is a connection between the actions brought before the different courts. | 63. As regards the exercise of the power of taxation so allocated, the Member States may not, however, disregard Community rules ( Saint-Gobain ZN , paragraph 58; Bouanich , paragraph 50; and also Denkavit Internationaal and Denkavit France , paragraph 44). | 0 |
12,474 | 84. As regards the concept of the ‘exercise of official authority’ within the meaning of the first paragraph of Article 45 EC, the assessment of that concept must take account, in accordance with settled case-law, of the character as European Union law of the limits imposed by that provision on the permitted exceptions to the principle of freedom of establishment, so as to ensure that the effectiveness of the Treaty in the field of freedom of establishment is not frustrated by unilateral provisions of the Member States (see, to that effect, Reyners , paragraph 50; Commission v Greece , paragraph 8; and Case C‑438/08 Commission v Portugal [2009] ECR I‑10219, paragraph 35). | 32. As recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship. | 0 |
12,475 | 53. Selon les requérants, la Cour a affirmé dans l’arrêt du 17 septembre 1980, Philip Morris/Commission (730/79, Rec. p. 2671, point 26) que la compatibilité d’une aide avec le traité FUE doit être appréciée dans le cadre du droit de l’Union et non dans celui d’un seul État membre. Dès lors, des arguments ou des critères tirés du droit national seraient à cet égard sans pertinence. | 68. A jurisdiction clause can concern only disputes which have arisen or which may arise in connection with a particular legal relationship, which limits the scope of an agreement conferring jurisdiction solely to disputes which arise from the legal relationship in connection with which the agreement was entered into. The purpose of that requirement is to avoid a party being taken by surprise by the assignment of jurisdiction to a given forum as regards all disputes which may arise out of its relationship with the other party to the contract and stem from a relationship other than that in connection with which the agreement conferring jurisdiction was made (see, to that effect, judgment in Powell Duffryn , C‑214/89, EU:C:1992:115, paragraph 31). | 0 |
12,476 | 44 It follows that the members of the CNSD cannot be characterised as independent experts (see, to that effect, Case C-185/91 Reiff [1993] ECR I-5801, paragraphs 17 and 19; Case C-153/93 Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraphs 16 and 18; and Joined Cases C-140/94 to C-142/94 DIP and Others [1995] ECR I-3257, paragraphs 18 and 19) and that they are not required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the general interest and the interests of undertakings in other sectors or users of the services in question (judgments cited above, Reiff, paragraphs 18 and 24; Delta Schiffahrts- und Speditionsgesellschaft, paragraph 17; and DIP and Others, paragraph 18). | 8. Under Legge Finanziaria No 388 (Finance Law No 388) of 23 December 2000 (ordinary supplement to the GURI of 29 December 2000, hereinafter " Law No 388/00" ), authorisation to organise betting is granted exclusively to licence holders or to those entitled to do so by a ministry or other entity to which the law reserves the right to organise or carry on betting. Bets can relate to the outcome of sporting events taking place under the supervision of the Comitato olimpico nazionale italiano (Italian National Olympic Committee, hereinafter " the CONI" ), or its subsidiary organisations, or to the results of horse races organised through the Unione nazionale per l ' incremento delle razze equine (National Union for the Betterment of Horse Breeds, hereinafter " the UNIRE" ). | 0 |
12,477 | 49. It is for the national courts, in cases of infringement of the latter provision, to draw the necessary consequences, in accordance with their national law, with regard to both the validity of the acts giving effect to the aid and the recovery of financial support granted in disregard of that provision (see, to that effect, Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon , cited above, paragraphs 11 and 12; van Calster and Others , cited above, paragraph 53; and Case C‑345/02 Pearle and Others [2004] ECR I‑7139, paragraph 31). In particular, the finding that aid has been granted in breach of the last sentence of Article 93(3) of the Treaty must in principle lead to its repayment in accordance with the procedural rules of domestic law (Case C-39/94 SFEI and Others [1996] ECR I‑3547, paragraph 68). | 50. In the light of the foregoing, there is no need to reply to the other questions referred. | 0 |
12,478 | 35. As regards the second element of the concept of ‘travelling time’, within the meaning of point (1) of Article 2 of Directive 2003/88, according to which the worker must be at the employer’s disposal during that time, it should be noted that the decisive factor is that the worker is required to be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need (see, to that effect, judgment in Dellas and Others , C‑14/04, EU:C:2005:728, paragraph 48, and orders in Vorel , C‑437/05, EU:C:2007:23, paragraph 28, and Grigore , C‑258/10, EU:C:2011:122, paragraph 63). | 32. Toutefois, une interprétation restrictive de ces cas ne peut avoir pour effet de vider de sa substance la faculté explicitement réservée aux États membres de limiter ladite obligation de paiement. | 0 |
12,479 | En effet, conformément à la jurisprudence de la Cour, un règlement prévoyant des mesures restrictives doit être interprété
à la lumière non seulement de la décision adoptée dans le cadre de la politique étrangère et de sécurité commune, visée à
l’article 215, paragraphe 2, TFUE, mais également du contexte historique dans lequel s’inscrivent les dispositions adoptées
par l’Union et dans lesquelles ce règlement s’insère (voir, en ce sens, arrêt du 28 novembre 2013, Conseil/Manufacturing Support
& Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, point 75, ainsi que ordonnance du 1er décembre 2015, Georgias e.a./Conseil et Commission, C‑545/14 P, EU:C:2015:791, point 33). Il en va de même d’une décision
adoptée dans le domaine de la politique étrangère et de sécurité commune, qui doit être interprétée en prenant en considération
le contexte dans lequel elle s’insère (arrêt du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 78). | 49. In that connection, the fact that the restrictions on the freedom to provide maritime transport services within Member States were abolished after the relevant period in the main proceedings does not necessarily exclude the possibility that the subsidies at issue in the main proceedings were liable to affect trade between Member States or that they distorted or threatened to distort competition. | 0 |
12,480 | Il s’ensuit notamment que, lorsque la Commission a fourni suffisamment d’éléments faisant apparaître que les dispositions
nationales transposant une directive ne sont pas correctement appliquées en pratique sur le territoire de l’État membre défendeur,
il incombe à celui-ci de contester de manière substantielle et détaillée les éléments ainsi présentés et les conséquences
qui en découlent (arrêt Commission/Portugal, C-526/09, EU:C:2010:734, point 22 et jurisprudence citée). | 65 Accordingly, the loss of the security lodged constitutes a penalty where, on the expiry of a period that Regulation No 1354/83 sets at three months, it is clear that, despite the deterrent effect of Article 26(5), the successful tenderer has definitively failed to fulfil his obligation to supply the goods in question and that that failure cannot be explained by force majeure or attributed to the recipient of the food aid. | 0 |
12,481 | 58. In accordance wi th that case-law, such legislation may be justified in order to meet imperative requirements, on condition that it is appropriate for securing the attainment of the objective pursued and that it does not go beyond what is necessary in order to attain that objective ( Commission v Italy , paragraph 59 and case-law cited). | 59. Such a prohibition may be justified on one of the public interest grounds set out in Article 30 EC or in order to meet imperative requirements (see, in particular Case C‑420/01 Commission v Italy [2003] ECR I‑6445, paragraph 29, and Case C‑270/02 Commission v Italy [2004] ECR I‑1559, paragraph 21). In either case, the national provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it (Case C‑54/05 Commission v Finland [2007] ECR I‑2473, paragraph 38, and Case C‑297/05 Commission v Netherlands [2007] ECR I‑7467, paragraph 75). | 1 |
12,482 | 188. While such legislation could meet the requirements referred to in paragraphs 158 to 160 of this judgment (see, to that effect, Marrosu and Sardino , paragraph 55; Vassallo , paragraph 40; and order in Vassilakis and Others , paragraph 128), it is none the less for the referring court – as is apparent from paragraphs 162 to 176 of this judgment – to determine to what extent the conditions for application and effective implementation of the relevant provisions of domestic law constitute a measure adequate for the prevention and, where relevant, the punishment of the misuse by the public authorities of successive fixed-term employment contracts or relationships (see Vassallo , paragraph 41; and Marrosu and Sardino , paragraph 56; also order in Vassilakis and Others , paragraph 135). | 34. As stated by the Advocate General in point 34 of his Opinion, that finding is also consistent with the principles of equal treatment and tax neutrality, which require that the Court’s recognition of the economic nature of the acquisition of holdings accompanied by an involvement by the parent company in the management of its subsidiaries and of companies controlled by it should be extended to the disposals of holdings which bring about the end of such involvement (see, by way of analogy, Wellcome Trust , paragraph 33, and Kretztechnik , paragraph 19). | 0 |
12,483 | 42. The proper conduct of that procedure constitutes an essential guarantee required by the EC Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (see, to that effect, Commission v Netherlands , paragraph 19). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
12,484 | 44. Consequently, where the question submitted by the national court concerns the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling ( Lourenço Dias , paragraph 16; Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59; Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38, and Canal Satélite Digital , cited above, paragraph 18). | 19 According to the Hauptzollamt, it should be possible to derogate from that system in the event of irregularities on the part of a purchaser in calculating the reference quantities initially allocated. | 0 |
12,485 | 31 At the hearing, however, Mrs Johnson argued that the two cases had to be distinguished since their facts were different. | 24 The reply to the first question must therefore be that Community law does not preclude the application of a national rule of law whereby benefits for incapacity for work are payable not earlier than one year before the date of claim, in the case where an individual seeks to rely on rights conferred directly by Article 4(1) of Directive 79/7 with effect from 23 December 1984 and where on the date the claim for benefit was made the Member State concerned had not yet properly transposed that provision into national law.
Question 2 | 1 |
12,486 | 34 So the mere fact that the service provided by the old and the new contractors is similar does not justify the conclusion that there has been a transfer of an economic entity between the two undertakings. Such an entity cannot be reduced to the activity entrusted to it. Its identity also emerges from other factors, such as its workforce, its management staff, the way in which its work is organised, its operating methods or indeed, where appropriate, the operational resources available to it (Süzen, paragraph 15, Sánchez Hidalgo, paragraph 30, and Allen, paragraph 27; see also Joined Cases C-127/96, C-229/96 and C-74/97 Hernández Vidal and Others [1998] ECR I-8179, paragraph 30). | 33 It should be noted at the outset that, in accordance with Articles 12 and 13 of Directive 91/439, the time-limit for transposing the directive into national law expired on 1 July 1994, the Member States being required to comply with the directive only as of 1 July 1996, the date on which Directive 80/1263 was repealed. | 0 |
12,487 | 26. In order to answer that question, it should be noted that the Court has already held that the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together (see Van Esbroeck , paragraph 36; Case C‑467/04 Gasparini and Others [2006] ECR I‑9199, paragraph 54, and Case C‑150/05 Van Straaten [2006] ECR I‑9327, paragraph 48). | 57 Thus, when employees in a transferred undertaking are made redundant and the employer is ordered to make a "protective award" to them for failure to comply with the obligations to consult and inform employee representatives in accordance with section 99 of the EPA, the employer will be penalized financially pursuant to the UK Regulations only to the extent that the amount of the penalty exceeds the amount of the "protective award". The financial penalty is accordingly weakened, if not entirely removed. In addition, the imposition of a ceiling on the amount which an employer may be ordered to pay by way of compensation under the UK Regulations, particularly at the level at which it was fixed prior to the coming into force of the Trade Union Reform and Employment Rights Act 1993, places a limit on the number of cases in which the "protective award" may be exceeded. | 0 |
12,488 | 12. In order to determine whether a body making a reference is a court or tribunal of a Member State for the purposes of Article 234 EC, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes , whether it applies rules of law and whether it is independent (see, in particular, Case C-54/96 Dorsch Consult [1997] ECR I-4961, paragraph 23, and the case-law there cited, and Case C-516/99 Schmid [2002] ECR I-4573, paragraph 34). | 25. Where, on more detailed examination, it appears to the customs authorities that that interpretation is wrong, following an error of assessment or evolution in the thinking in relation to tariff classification, they are entitled to consider that one of the conditions laid down for the issue of a BTI is no longer fulfilled and to revoke that BTI with a view to amending the tariff classification of the goods concerned. | 0 |
12,489 | 22. That is the case, in particular, of national measures which make investments in immovable property conditional upon a prior authorisation procedure and thus restrict, by their very purpose, the free movement of capital (see, to that effect, Case C-302/97 Konle [1999] ECR I‑3099, paragraph 39, and Reisch and Others , paragraph 32). | La Cour a jugé que, s’il est vrai que l’article 13 de la directive 2008/98 ne précise pas le contenu concret des mesures qui doivent être prises pour s’assurer que les déchets soient éliminés sans mettre en danger la santé de l’homme et sans porter préjudice à l’environnement, il n’en reste pas moins que cet article lie les États membres quant à l’objectif à atteindre, tout en leur laissant une marge d’appréciation dans l’évaluation de la nécessité de telles mesures (arrêts du 10 juin 2010, Commission/Portugal, C‑37/09, non publié, EU:C:2010:331, point 35, et du 11 décembre 2014, Commission/Grèce, C‑677/13, non publié, EU:C:2014:2433, point 77). | 0 |
12,490 | 169. In that regard, while it is true that the Commission is not obliged, in the statement of reasons for decisions adopted under the Regulation, to take a position on all the information and arguments relied on before it, including those which are plainly of secondary importance to the appraisal it is required to undertake, it none the less remains the case that it is required to set out the facts and the legal considerations having decisive importance in the context of the decision. The reasoning must in addition be logical and must not disclose any internal contradictions (see to that effect, by way of analogy, Case 13/60 Geitling and Others v High Authority [1962] ECR 83, 117; Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 78; Case 158/80 Rewe-Handelsgesellschaft Nord and Rewe-Markt Steffen [1981] ECR 1805, paragraph 26; and Case 28/87 Arendt v Parliament [1988] ECR 2633, paragraphs 7 and 8). | 78 WITH REGARD MORE PARTICULARLY TO DECISIONS IMPOSING A FINE, THE STATEMENT OF REASONS IS TO BE CONSIDERED SUFFICIENT IF IT INDICATES CLEARLY AND COHERENTLY THE CONSIDERATIONS OF FACT AND OF LAW ON THE BASIS OF WHICH THE FINE HAS BEEN IMPOSED ON THE PARTIES CONCERNED, IN SUCH A WAY AS TO ACQUAINT BOTH THE LATTER AND THE COURT WITH THE ESSENTIAL FACTORS OF THE COMMISSION' S REASONING . | 1 |
12,491 | 44. In that respect, it is important to recall that the provisions in Section 5 are not only specific but also exhaustive (judgment in Glaxosmithkline and Laboratoires Glaxosmithkline , C‑462/06, EU:C:2008:299, paragraph 18). | 60 However, that is not the case with the two services now under consideration, for two reasons in particular. First, unlike the situation in Corbeau, the two types of service in question, traditionally assumed by the medical aid organisations, are so closely linked that it is difficult to sever the non-emergency transport services from the task of general economic interest constituted by the provision of the public ambulance service, with which they also have characteristics in common. | 0 |
12,492 | 83
The Court has also held that it is the duty of economic operators, where they have doubts as to the exact application of provisions non-compliance with which may result in a customs debt being incurred, or as to the definition of the origin of the goods, to make enquiries and seek all possible clarification in order to ascertain whether those doubts are well founded (see, to that effect, inter alia, judgments of 14 May 1996, Faroe Seafoodand Others, C‑153/94 and C‑204/94, EU:C:1996:198, paragraph 100; of 11 November 1999, Söhl & Söhlke, C‑48/98, EU:C:1999:548, paragraph 58; and of 16 March 2017, Veloserviss, C‑47/16, EU:C:2017:220, paragraph 37). | 37
In that regard, the Court has held that it is the duty of traders, where they have doubts as to the exact application of the provisions non-compliance with which may result in a customs debt being incurred or as to the definition of the origin of the goods, to make enquiries and seek all possible clarification in order to ascertain whether those doubts are well founded (see, to that effect, inter alia, judgments of 14 May 1996, Faroe Seafood and Others, C‑153/94 and C‑204/94, EU:C:1996:198, paragraph 100, and of 11 November 1999, Söhl & Söhlke, C‑48/98, EU:C:1999:548, paragraph 58). | 1 |
12,493 | 37. Although the Court cannot substitute its assessment for that of a national court, which is the only forum competent to establish the facts of the case before it, it must be pointed out that the application of a national rule intended to prevent abuse must not prejudice the full effect and uniform application of Community law in the Member States. In particular, it is not open to national courts to compromise the objectives pursued by the directive in question (see, to that effect, Case C-367/96 Kefalas and Others [1998] ECR I-2843, paragraph 22). | Cette conclusion ne saurait être remise en cause par l’argument tiré de ce que l’adoption d’une majoration à des fins dissuasives,
telle que celle visée dans les lignes directrices de 2006, ne pouvait être raisonnablement prévue, dès lors qu’il découle
clairement des règles juridiques pertinentes et de la jurisprudence de la Cour relative à celles‑ci que le caractère dissuasif
de la sanction constituait l’un des éléments à prendre en compte dans le calcul du montant de l’amende bien avant l’entrée
en vigueur de ces lignes directrices. | 0 |
12,494 | 57
It must also be made clear, first, that it is required not that the situations be identical, but only that they be comparable and, secondly, that the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the objective and of the aim of the national legislation creating the distinction at issue (see, to that effect, judgments of 10 May 2011, Römer, C‑147/08, EU:C:2011:286, paragraph 42; of 12 December 2013, Hay, C‑267/12, EU:C:2013:823, paragraph 33; of 15 May 2014, Szatmári Malom, C‑135/13, EU:C:2014:327, paragraph 67; and of 1 October 2015, O, C‑432/14, EU:C:2015:643, paragraph 32). | 27. The place where the damage occurred must not, however, be confused with the place where the event which damaged the product itself occurred, the latter being the place of the event giving rise to the damage. By contrast, the ‘place where the damage occurred’ (see Mines de potasse d'Alsace , paragraph 15, and Shevill and Others , paragraph 21) is the place where the event which gave rise to the damage produces its harmful effects, that is to say, the place where the damage caused by the defective product actually manifests itself. | 0 |
12,495 | 29. It must be recalled in this regard that the continued payment of wages to a worker in the event of illness falls within the concept of ‘pay’ within the meaning of Article 141 EC (Case 171/88 Rinner-Kühn [1988] ECR 2743, paragraph 7), a concept which comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his or her employment from his or her employer, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis (Case C-66/96 Høj Pedersen and Others [1998] ECR I-7327, paragraph 32). | 66 There is no doubt that all those identifying characteristics are likewise present in non-contracted-out occupational schemes. | 0 |
12,496 | 42
The Court has stated that it is compatible with EU law to lay down reasonable time limits for bringing proceedings in the interests of legal certainty which protects both the individual and the authorities concerned, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (see, to that effect, judgment of 8 September 2011, Q-Beef and Bosschaert, C‑89/10 and C‑96/10, EU:C:2011:555, paragraph 36). By way of example, limitation periods of three years (judgment of 15 April 2010, Barth, C‑542/08, EU:C:2010:193, paragraph 28) or two years (judgment of 15 December 2011, Banca Antoniana Popolare Veneta, C‑427/10, EU:C:2011:844, paragraph 25), have been held to be compatible with the principle of effectiveness. | 14ARTICLE 4 ( 4 ) OF REGULATION NO 1408/71 , DEFINING THE SUBSTANTIVE FIELD OF APPLICATION OF THAT PROVISION , PROVIDES THAT THE REGULATION DOES NOT APPLY INTER ALIA ' ' TO BENEFIT SCHEMES FOR VICTIMS OF WAR OR ITS CONSEQUENCES ' ' .
| 0 |
12,497 | 32. In the second place, the Court has stated that a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, inter alia, judgments in Simmenthal , 106/77, EU:C:1978:49, paragraphs 21 and 24; Filipiak , C‑314/08, EU:C:2009:719, paragraph 81; Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraph 45; and A , C‑112/13, EU:C:2014:2195, paragraph 36). | 37. Ainsi, outre une similitude visuelle manifeste de l’article en cause avec les articles dont il est constant qu’ils relèvent de la position 7318 de la NC, force est de constater que, au vu de ses caractéristiques et de ses propriétés objectives, l’article en cause peut être classé dans cette position de la NC. | 0 |
12,498 | 33. In that regard, it is settled case-law that the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by EU law and which are confined in all relevant respects within a single Member State (see Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 33, and Case C‑434/09 McCarthy [2011] ECR I‑3375, paragraph 45). | 11 FURTHERMORE , THE UNLIMITED JURISDICTION CONFERRED ON THE COURT IN THE DISPUTES REFERRED TO IN ARTICLE 179 ENABLES IT , WITHIN THE CONTEXT OF SUCH DISPUTES , TO GIVE JUDGMENT NOT ONLY ON THE VALIDITY OF THE CONTESTED ACT BUT ALSO ON COMPENSATION FOR ANY DAMAGE SUFFERED BY THE PERSON CONCERNED AS A RESULT OF AN ACT CONTRARY TO HIS RIGHTS UNDER THE STAFF REGULATIONS .
| 0 |
12,499 | 34. First, both a trade mark’s distinctiveness and its reputation must be assessed, first, by reference to the perception of the relevant public, which consists of average consumers of the goods or services for which that mark is registered, who are reasonably well informed and reasonably observant and circumspect (as regards distinctive character, see Case C‑363/99 Koninklijke KPN Nederland [2004] ECR I‑1619, paragraph 34; as regards reputation, see, to that effect, General Motors , paragraph 24). | 38. However, unequal treatment permitted under Article 58(1)(a) EC must be distinguished from arbitrary discrimination prohibited under Article 58(3) EC. According to the case-law, for a national fiscal provision such as that at issue in the main proceedings to be capable of being regarded as compatible with the provisions of the Treaty on the free movement of capital, the difference in treatment must concern situations which are not objectively comparable or be justified by overriding reasons in the general interest (see Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 43; Manninen, paragraphs 28 and 29; and Case C-512/03 Blanckaert [2005] ECR I-0000, paragraph 42). | 0 |
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