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So far as the tax aspect is concerned, the fact that the recipients of the service concerned obtain a tax advantage does not affect the fact that the service is provided by the issuer for remuneration, so that the activity concerned, which thus corresponds to the definition of a service contained in the provisions of the Treaty relating to the freedom to provide services, comes within the scope of those provisions (see, to that effect, judgments in Skandia and Ramstedt, C‑422/01, EU:C:2003:380, paragraphs 22 to 28, and Commission v Germany, C‑318/05, EU:C:2007:495, paragraphs 65 to 82). | 37
Thus, an action for annulment is, in principle, only available against a measure by which the institution concerned definitively determines its position upon the conclusion of an administrative procedure. On the other hand, intermediate measures whose purpose is to prepare for the definitive decision, or measures which are mere confirmation of an earlier measure or purely implementing measures, cannot be treated as acts open to challenge, in that such acts are not intended to produce autonomous binding legal effects compared with those of the act of the EU institution which is prepared, confirmed or enforced (see, to that effect, in particular, judgments of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 55; of 6 December 2007, Commission v Ferriere Nord, C‑516/06 P, EU:C:2007:763, paragraph 29; and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52). | 0 |
3,401 | 32. Regarding the objective of the legislation at issue in the main proceedings, the Court acknowledges that, as pointed out by the Spanish and the Swedish Governments, partial recognition of professional qualifications could, theoretically, have the effect of fragmenting the professions regulated in a Member State into various activities. That would lead essentially to a risk of confusion in the minds of the recipients of services, who might well be misled as to the scope of those qualifications. The protection of the recipients of services, and consumers in general, has already been held by the Court to be capable of justifying restrictions on the freedom of establishment and the freedom to provide services (Case 220/83 Commission v France [1986] ECR 3663, paragraph 20; Case C-124/97 Läärä and Others [1999] ECR I-6067, paragraph 33; and Case C-6/01 Anomar and Others [2003] ECR I-8621, paragraph 73). | 32. Directive 2006/123 thus applies, pursuant to Articles 2(1) and 4 thereof, to any self-employed economic activity, normally provided for remuneration, by a provider established in a Member State, regardless of whether the provider is established in a stable and continuous manner in the Member State in which the services are provided, with the exception of the activities expressly excluded, which include ‘healthcare services’ and ‘social services’, referred to in Article 2(2)(f) and Article 2(2)(j) respectively, provisions referred to in the national court’s question. | 0 |
3,402 | 24 As the Court stated in the context of the interpretation of the free-trade Agreement between the European Economic Community and the Swiss Confederation signed in Brussels on 22 July 1972 and concluded and approved on behalf of the Community by virtue of Council Regulation (EEC) No 2840/72 of 19 December 1972 (OJ, English Special Edition 1972 (31 December) L 300, p. 286), which contains a Protocol 3 similar to that appended to the EEC-Austria Agreement, the determination of the origin of goods is based on a division of powers between the customs authorities of the parties to the Agreement inasmuch as origin is established by the authorities of the exporting State and the proper working of that system is monitored jointly by the authorities concerned on both sides (Case 218/83 Les Rapides Savoyards [1984] ECR 3105, paragraph 26). | 35. It is only in exceptional circumstances that it would be inappropriate to order repayment of the aid (Case C-5/89 Commission v Germany [1990] ECR I‑3437, paragraph 16; SFEI and Others , paragraph 70; and CELF and Ministre de la Culture et de la Communication , paragraph 42). | 0 |
3,403 | 16 The Court also held that the limitation of the effects in time of the judgment in Case C-262/88 Barber v Guardian Royal Exchange Group [1990] ECR I-1889 did not apply to the right to join an occupational pension scheme (Vroege, paragraph 32, and Fisscher, paragraph 28). The Court further held that the direct effect of Article 119 of the Treaty could be relied on in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and might be so relied on as from 8 April 1976, the date of the judgment in Case 43/75 Defrenne v SABENA [1976] ECR 455, in which the Court held for the first time that Article 119 has direct effect. | 28 The answer to the second question must therefore be that the limitation of the effects in time of the Barber judgment does not apply to the right to join an occupational pension scheme.
The third question | 1 |
3,404 | 46. Il en résulte qu’une décision de réaffectation contre la volonté du fonctionnaire, envisagée dans le cadre d’un contexte de difficultés relationnelles tel que celui de l’espèce, nécessite l’application du principe du respect des droits de la défense, principe fondamental du droit communautaire, même en l’absence de toute réglementation concernant la procédure en cause (voir, en ce sens, arrêts du 10 juillet 1986, Belgique/Commission, 234/84, Rec. p. 2263, point 27; du 5 octobre 2000, Allemagne/Commission, C‑288/96, Rec. p. I‑8237, point 99, et du 9 novembre 2006, Commission/De Bry, C‑344/05 P, Rec. p. I‑10915, point 37). | 18 The first condition is that losses carried forward must be economically linked to the income earned in the Member State in which tax is charged, so that only losses arising from the non-resident taxpayer's activities in that State can be carried forward. | 0 |
3,405 | 50. In that regard, is it is to be noted that, in accordance with settled case-law, consumer protection can justify interference with the freedom to provide services (see, to that effect, Joined Cases C‑34/95 to C‑36/95 De Agostini and TV-Shop [1997] ECR I‑3843, paragraph 53; Case C‑243/01 Gambelli and Others [2003] ECR I‑13031, paragraph 67; and Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others [2007] ECR I‑0000, paragraph 46). | 53 Further, according to settled case-law, fair trading and the protection of consumers in general are overriding requirements of public interest which may justify restrictions on freedom to provide services (see, in particular, Collectieve Antennevoorziening Gouda, cited above, paragraph 14, and Case C-384/93 Alpine Investments [1995] ECR I-1141). | 1 |
3,406 | 36. Par ailleurs, selon la jurisprudence de la Cour, il incombe à la Commission, dans le cadre d’une telle procédure, de fournir à la Cour les éléments nécessaires pour déterminer l’état d’exécution par un État membre d’un arrêt en manquement. Dès lors que la Commission a fourni suffisamment d’éléments faisant apparaître la persistance du manquement, il appartient à l’État membre concerné de contester cette affirmation de manière substantielle et détaillée, ainsi que d’apporter la preuve de la cessation de l’infraction (voir arrêt Commission/Grèce, C‑369/07, EU:C:2009:428, points 74 et 75 ainsi que jurisprudence citée). | 27. Therefore, it is not permissible to equate the two terms. | 0 |
3,407 | 33. Secondly, it should be noted, on the one hand, that the Court has already held that use of a trade mark to inform the public that the advertiser is specialised in the sale, or that he carries out the repair and maintenance, of products bearing that trade mark which have been marketed under that mark by its owner or with his consent, constitutes a use indicating the intended purpose of a product within the meaning of Article 6(1)(c) of Directive 89/104 (see BMW , paragraphs 54 and 58 to 63). That information is necessary in order to preserve the system of undistorted competition in the market for that product or service. | 28. The same conclusion must follow with regard to the levies at issue in the main proceedings, which are not imposed on the employment income and substitute income of workers, but which are imposed on income from assets, since it is not in dispute that the proceeds of those levies are allocated specifically and directly to the financing of certain branches of social security in France or to the discharge of their debts. | 0 |
3,408 | 71. According to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, inter alia , Case C-260/89 ERT [1991] ECR I-2925, paragraph 41; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37, and Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 25). | 35. It follows that the terms referred to in Article 4(2) do indeed come within the area covered by the Directive and that, consequently, Article 8 of the Directive applies equally to Article 4(2). | 0 |
3,409 | 52. S’agissant, en particulier, des effets juridiques obligatoires d’une décision d’ouvrir la procédure prévue à l’article 88, paragraphe 2, CE à l’égard d’une mesure en cours d’exécution et qualifiée d’aide nouvelle, une telle décision modifie nécessairement la situation juridique de la mesure considérée, ainsi que celle des entreprises qui en sont bénéficiaires, notamment en ce qui concerne la poursuite de sa mise en œuvre. Après l’adoption d’une telle décision, il existe à tout le moins un doute important sur la légalité de cette mesure qui doit conduire l’État membre à en suspendre le versement, dès lors que l’ouverture de la procédure prévue à l’article 88, paragraphe 2, CE exclut une décision immédiate concluant à la compatibilité avec le marché commun qui permettrait de poursuivre régulièrement l’exécution de ladite mesure. Une telle décision pourrait être invoquée devant un juge national appelé à tirer toutes les conséquences découlant de la violation de l’article 88, paragraphe 3, dernière phrase, CE. Enfin, elle est susceptible de conduire les entreprises bénéficiaires de la mesure à refuser en tout état de cause de nouveaux versements ou à provisionner les sommes nécessaires à d’éventuels remboursements ultérieurs. Les milieux d’affaires tiendront également compte, dans leurs relations avec lesdits bénéficiaires, de la situation juridique et financière fragilisée de ces derniers (voir arrêt du 9 octobre 2001, Italie/Commission, C‑400/99, Rec. p. I‑7303, point 59). | 55. The objective of maximising public revenue alone cannot permit such a restriction of the freedom to provide services. | 0 |
3,410 | 21. First of all, it should be noted that, as a general rule, the Court will refrain from considering the principle of tax neutrality with a view to ascertaining whether EU law precludes national rules which lay down time-limits within which a VAT refund must be claimed, failing which the action is time-barred (see, to that effect, Case C‑85/97 SFI [1998] ECR I‑7447, paragraphs 22 to 36; Case‑62/00 Marks & Spencer [2002] ECR I‑6325, paragraphs 22 to 47; and Case C‑472/08 Alstom Power Hydro [2010] ECR I‑623, paragraphs 14 to 22). | 106. Lastly, as regards monetary fluctuations, they are an element of chance which may produce advantages and disadvantages which the undertakings have to deal with regularly in the course of their business activities and whose very existence is not such as to render inappropriate the amount of a fine lawfully fixed by reference to the gravity of the infringement and the turnover achieved during the last year of the period over which it was committed (see Case C-291/98 P Sarrió , paragraph 89). | 0 |
3,411 | 63. In a situation in which the trade mark already enjoys such a reputation, the investment function is adversely affected where use by a third party of a sign identical with that mark in relation to identical goods or services affects that reputation and thereby jeopardises its maintenance. As the Court has already held, the proprietor of a trade mark must be able, by virtue of the exclusive right conferred upon it by the mark, to prevent such use (Case C-324/09 L’Oréal and Others [2011] ECR I‑0000, paragraph 83). | 20. The concept of ‘intervention through State resources’ is intended to cover, in addition to advantages granted directly by the State, those granted through a public or private body appointed or established by that State to administer the aid (see, to that effect, inter alia, Case 78/76 Steinike & Weinlig [1977] ECR 595, paragraph 21; Sloman Neptun , paragraph 19; and Doux Élevage and Coopérative agricole UKL-ARREE , paragraph 26). | 0 |
3,412 | 21. In that regard, the Court has consistently held that the letter of formal notice sent by the Commission to a Member State, and the reasoned opinion issued by the Commission, delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the EC Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations (see, in particular, Case C‑365/97 Commission v Italy [1999] ECR I‑7773, paragraph 23, and Case C‑441/02 Commission v Germany [2006] ECR I‑3449, paragraph 59). | 30. Nevertheless, the adoption of such measures must not neutralise the principle that emission allowances are allocated free of charge; nor may it undermine the objectives pursued by Directive 2003/87. | 0 |
3,413 | 38. It should, however, be remembered that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court (see inter alia Case 36/79 Denkavit Futtermittel [1979] ECR 3439, paragraph 12; Case C-235/95 Dumon and Froment [1998] ECR I-4531, paragraph 25; and IKA , paragraph 27). In this case, as stated in paragraph 27 of this judgment, the national court has indicated that it provisionally accepts that both Mr van der Duin and Mrs van Wegberg-van Brederode went to the Netherlands to receive the treatment at issue in the main proceedings, which explains, moreover, why it considered it appropriate to ask the Court about the possible applicability of Article 22(1)(c) and (i) of Regulation No 1408/71 to such situations. | 79. In addition, air carriers are not obliged to pay compensation if they can prove that the cancellation or long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, that is, circumstances which are beyond the air carrier’s actual control (see Sturgeon and Others , paragraph 67). | 0 |
3,414 | 63. It must be added that the Court has, on several occasions, found it necessary to take into account the conduct of the relevant national authorities for the purpose of interpreting the provisions with a social purpose in Decision No 1/80, relying in particular on the fact that those authorities had not called into question the legality of the residence of the Turkish national concerned in the territory of the host Member State (see, to that effect, as regards Article 6(1) of Decision No 1/80, Ertanir , paragraphs 67 and 69 and also, by analogy, as regards the first paragraph of Article 7 of the same decision, Kadiman , paragrahs 52 and 54; Case C-329/97 Ergat [2000] ECR I-1487, paragraph 51; and Case C-65/98 Eyüp [2000] ECR I-4747, paragraphs 35 and 36). | 51 As regards, in this case, Mr Ergat's return to Turkey for about a year from August 1992, it must, however, be observed that, apart from the fact that this circumstance, which came about after the date of the application for extension of the residence permit, is not, in any event, such as to justify the rejection of that application and that it is therefore not necessary to raise the question whether he went of his own accord or in consequence of the threat of deportation with which he was faced, it is common ground that the competent German authorities did not make his readmission to Germany conditional upon the issue of a fresh authorisation to enter, with the result that he was able to take up a new job on the basis of the work permit of unlimited duration which he obtained in 1989. | 1 |
3,415 | 55. It is settled case-law that any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 23 EC and 25 EC, even though such pecuniary charge is not levied for the benefit of the State (see, in particular, Joined Cases 2/69 and 3/69 Sociaal Fonds voor de Diamantarbeiders [1969] ECR 211, paragraph 18; Case 158/82 Commission v Denmark [1983] ECR 3573, paragraph 18; Case C‑130/93 Lamaire [1994] ECR I‑3215, paragraph 13; Joined Cases C‑441/98 and C‑442/98 Michaïlidis [2000] ECR I‑7145, paragraph 15, and Case C-234/99 Nygård [2002] ECR I‑3657, paragraph 19). | 60. That interpretation of Article 10(1)(b)(i) of Regulation No 574/72 can be directly applied to situations such as that in the case in the main proceedings with regard to the exercise by Ms Dodl’s spouse and Ms Oberhollenzer’s partner of a professional or trade activity in the Member State of residence. Consequently, it is that State, in this case, the Federal Republic of Germany, which is responsible for paying the family benefits in issue. | 0 |
3,416 | 40. None the less, it follows from the Court’s settled case-law that new rules apply immediately, except in the event of a derogation, to the future effects of a situation which arose under the old rules (see Case C‑162/00 Pokrzeptowicz‑Meyer [2002] ECR I‑1049, paragraph 50, Joined Cases C‑395/08 and C‑396/08 Bruno and Others [2010] ECR I‑5119, paragraph 53, and Case C‑393/10 O’Brien [2012] ECR I‑0000, paragraph 25). | Par conséquent, c’est sans commettre d’erreur de droit que le Tribunal a estimé que la chambre de recours avait considéré, à bon droit, au point 62 de la décision litigieuse, que le consommateur ferait une distinction entre les signes en cause, en dépit de leurs similitudes visuelles et phonétiques. | 0 |
3,417 | 29. As noted by the Advocate General in point 24 of his Opinion, the transposition of Article 12(1) of the Directive requires the Member States not only to adopt a comprehensive legislative framework but also to implement concrete and specific protection measures (see, to that effect, Case C‑103/00 Commission v Greece [2002] ECR I‑1147, paragraphs 34 to 39). | 27. Admittedly, as DBI states, the registered dealer is, in such a case, the person responsible for payment of the registration duty to the competent tax authorities. The fact remains that, as regards that duty, the person liable for payment is the purchaser of the vehicle, as is shown by the fact that the dealer subsequently passes on to that purchaser the amount of the duty he has paid. | 0 |
3,418 | 42. In paragraphs 74 and 75 of Halifax and Others , the Court first held that, in the context of interpreting the Sixth Directive, an abusive practice can be held to exist where:
– the transactions concerned, notwithstanding formal application of the conditions laid down by the relevant provisions of the Sixth Directive and the national legislation transposing it, result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions;
– it is apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain a tax advantage. | Ensuite, dans la mesure où les requérantes reprochent au Tribunal d’avoir exigé, à la première phrase du point 183 de l’arrêt attaqué, de SACE que celle-ci évalue ex ante la rentabilité future de sa filiale et communique à la Commission des éléments d’évaluation préalable appropriés, ce grief doit être rejeté comme étant non fondé. En effet, à la première phrase du point 183 de cet arrêt, le Tribunal a appliqué au cas de l’espèce les principes résultant des points 180 et 182 dudit arrêt, tels que résumés au point 106 du présent arrêt. Ce faisant, le Tribunal a correctement appliqué la jurisprudence issue de l’arrêt du 5 juin 2012, Commission/EDF (C‑124/10 P, EU:C:2012:318, points 82 à 84 et 86), qu’il a, par ailleurs, résumé au point 97 de l’arrêt attaqué, et dont il ressort qu’il incombe à l’État membre qui invoque, au cours de la procédure administrative, le critère de l’investisseur privé, d’établir sur la base des éléments objectifs et vérifiables que sa décision est fondée sur des évaluations économiques préalables requises. Cette constatation est confirmée par le point 104 de l’arrêt du 5 juin 2012, Commission/EDF (C‑124/10 P, EU:C:2012:318), dont il ressort que la Commission n’a pas d’obligation d’examiner une information si les éléments de preuve produits ont été établis postérieurement à l’adoption de la décision d’effectuer l’investissement en question. Il convient d’ajouter que rien dans l’arrêt du 3 avril 2014, Commission/Pays-Bas et ING Groep (C‑224/12 P, EU:C:2014:213), ne saurait être interprété comme permettant de dispenser l’État membre concerné d’établir une évaluation préalable appropriée de la rentabilité de son investissement, avant de procéder audit investissement. | 0 |
3,419 | 125
In any event, it must be stated that the Republic of Poland participated, in accordance with the arrangements laid down in the FEU Treaty, in the legislative procedure which led to the adoption of Directive 2014/40, which is addressed to it in the same way as to the other Member States represented in the Council. Therefore, the Republic of Poland cannot validly complain that the Parliament and the Council, the authors of that directive, did not place it in a position to know the grounds for the choice of measures which they intended to implement (see, to that effect, Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 62). | 38. In consequence, it is necessary to examine whether the principles of effectiveness and equivalence preclude a national rule such as that set out in paragraph 36 of the present judgment. | 0 |
3,420 | 52. It must be observed that it is settled case-law of the Court that the Community institutions have been given a wide discretion in the application of Article 109 of the OCT Decision (see, to that effect, Case C-390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I‑769, paragraph 48; Case C-110/97 Netherlands v Council , paragraph 61, and Case C-301/97 Netherlands v Council [2001] ECR I‑8853, paragraph 73). | 30 It does not follow from the wording of that provision that the Member States are required to determine precisely what proportion of the pollution in the waters is attributable to nitrates of agricultural origin or that the cause of such pollution must be exclusively agricultural. | 0 |
3,421 | 48. In this respect, it must be recalled that, where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred (see, to that effect, Aalborg Portland and Others v Commission , paragraphs 355 to 358). | 31. However, the discretion enjoyed by the Member States in this respect is not unlimited. | 0 |
3,422 | 51
According to the case-law of the Court of Justice, both the principle of mutual trust between the Member States and the principle of mutual recognition are, in EU law, of fundamental importance given that they allow an area without internal borders to be created and maintained (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 78 and the case-law cited). | 39. Accordingly, a contracting authority may request the correction or amplification of details of such an application, on a limited and specific basis, so long as that request relates to particulars or information, such as a published balance sheet, which can be objectively shown to pre-date the deadline for applying to take part in the tendering procedure concerned. | 0 |
3,423 | 41
In that connection, account must be taken of the fact that a distribution agreement is based, as a general rule, on a selection of the distributors by the supplier. That selection may confer a competitive advantage on the distributors in that they will have the sole right to sell the supplier’s products in a particular territory or, at the very least, a limited number of distributors will enjoy that right. Moreover, a distribution agreement often provides assistance to the distributors regarding access to forms of advertising, communication of know-how by means of training, or payment facilities. All those advantages, whose existence it is for the court adjudicating on the substance to ascertain, represent an economic value for the distributors that may be regarded as constituting remuneration (see, to this effect, judgment of 19 December 2013 in Corman-Collins, C‑9/12, EU:C:2013:860, paragraph 40). | 76. Next, as regards the criticism of the Court of First Instance for not wishing to hear the author of the expert’s report produced by the appellant, as the latter proposed, it must be pointed out that the Court of First Instance is the sole judge of any need for the information available to it concerning the cases before it to be supplemented. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and, as already noted at paragraph 39 of this judgment, is not subject to review by the Court of Justice on appeal, except where the clear sense of that evidence has been distorted or the substantive inaccuracy of the Court of First Instance’s findings is apparent from the documents in the case-file (Case C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 19, and Joined Cases C-24/01 P and C-25/01 P Glencore and Compagnie Continentale v Commission [2002] ECR I-10119, paragraphs 77 and 78). | 0 |
3,424 | 20 The Court has also consistently held (see, inter alia, Haahr Petroleum, paragraph 20) that any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 9, 12, 13 and 16 of the EC Treaty. However, such a charge may not be so characterised if it forms part of a general system of internal dues applying systematically to categories of products according to objective criteria applied without regard to the origin of the products, in which case it falls within the scope of Article 95 of the Treaty. | 65. C’est à la juridiction nationale qu’il incombe d’établir l’existence de ces deux éléments, dont la preuve doit être rapportée conformément aux règles du droit national, pour autant qu’il n’est pas porté atteinte à l’efficacité du droit de l’Union (arrêt Emsland-Stärke, précité, point 54). | 0 |
3,425 | 28. Indeed, according to the case-law of the Court, the public service owes a general obligation of diligence when verifying the legality of payments made by it that are borne by the European Union budget (judgment in Ze Fu Fleischhandel GmbH and Vion Trading , C‑201/10 and C‑202/10, EU:C:2011:282, paragraph 44). To admit that the dies a quo is the day of the relevant irregularity’s discovery would run contrary to that obligation of diligence. | 38. Since the difference between those regimes is fundamental to the assessment of an immunity, it is essential to ascertain under which of those two regimes a dispute concerning a claim to a tax exemption falls. | 0 |
3,426 | 43. In that regard, it is sufficient to bear in mind – as can be seen, essentially, from paragraph 63 of the order under appeal – that individuals are entitled to effective judicial protection of the rights they derive from the Community legal order. The judicial protection of natural or legal persons who are unable, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 230 EC, to challenge directly Community measures of the same kind as the contested decision must be guaranteed effectively by a right of action before the national courts. Those courts are under a duty, in accordance with the principle of cooperation in good faith laid down by Article 10 EC, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables those persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act such as that at issue, by pleading the illegality of such an act and by asking those courts to make a reference to the Court of Justice for a preliminary ruling on legality (Case C‑15/06 P Regione Siciliana v Commission [2007] ECR I‑2591, paragraph 39). | 34. Cette interprétation est corroborée par la structure et l’économie des règles de compétence spéciales en matière de contrats conclus par les consommateurs prévues à l’article 16, paragraphes 1 et 2, du règlement nº 44/2001, lequel prévoit la compétence de la juridiction du domicile du consommateur pour les actions intentées par ce dernier et contre celui-ci. Il en découle que cette disposition trouve à s’appliquer uniquement aux contrats dans lesquels un déséquilibre existe entre les parties contractantes. | 0 |
3,427 | 20 The Court has thus recognised that it is compatible with Community law to lay down reasonable limitation periods for bringing proceedings in the interests of legal certainty which protects both the taxpayer and the administration concerned (see Rewe, paragraph 5, Comet, paragraphs 17 and 18, and Denkavit Italiana, paragraph 23, all cited above; see also Case C-261/95 Palmisani v INPS [1997] ECR I-4025, paragraph 28, and Case C-90/94 Haahr Petroleum v benrå Havn and Others [1997] ECR I-4085, paragraph 48). The fact that the Court has given a preliminary ruling on the interpretation of the provision of Community law in question is immaterial in that respect (see, to that effect, Rewe, cited above, paragraph 7). | 21 L' accord a, en effet, pour objectif, comme cela a déjà été exposé, de promouvoir une coopération globale entre les parties contractantes, notamment dans le domaine de la main-d' oeuvre . La circonstance que l' accord vise essentiellement à favoriser le développement économique du Maroc et qu' il se borne à établir une coopération entre les parties sans viser à une association ou à une future adhésion du Maroc aux Communautés n' est pas de nature à empêcher l' applicabilité directe de certaines de ses dispositions . | 0 |
3,428 | 118. Referring in particular to the memorandum of understanding concluded with the United States of America on 11 April 2001, the Court observed more specifically that such an outcome, by which the Community sought to reconcile its obligations under the WTO agreements with those in respect of the ACP States, and with the requirements inherent in the implementation of the common agricultural policy, could have been compromised if the Community courts had been entitled to review the legality of the Community measures in question in the light of the WTO rules upon the expiry of the reasonable period of time granted by the DSB (see, to this effect, Van Parys , paragraphs 49 and 50). | 50. Such an outcome, by which the Community sought to reconcile its obligations under the WTO agreements with those in respect of the ACP States, and with the requirements inherent in the implementation of the common agricultural policy, could be compromised if the Community Courts were entitled to judicially review the lawfulness of the Community measures in question in light of the WTO rules upon the expiry of the time-limit, in January 1999, granted by the DSB within which to implement its decision of 25 September 1997. | 1 |
3,429 | 30. The system of remedies set up by the EC Treaty distinguishes between the remedies provided for in Articles 226 EC and 227 EC, which permit a declaration that a Member State has failed to fulfil its obligations, and those contained in Articles 230 EC and 232 EC, which permit judicial review of the lawfulness of measures adopted by the Community institutions, or the failure to adopt such measures. Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of a decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision (see, inter alia, Case C-261/99 Commission v France [2001] ECR I-2537, paragraph 18, and Case C-404/00 Commission v Spain [2003] ECR I-6695, paragraph 40). | 92. It is true that the provisions of national law applicable at the material time to bodies like BIAO-Afribank did not reproduce the provisions of the Fourth Directive verbatim . On the other hand, according to the German Government, nothing in German legislation prevented the aim, the principles and the provisions of that directive from being fully complied with as regards drawing up the annual accounts of such bodies. In that respect, the German Government argues, and the order for reference moreover acknowledges, that any interpretation given by the Court of the provisions of the Fourth Directive would be binding for the resolution of the dispute in the main proceedings by the referring court. | 0 |
3,430 | 13 In that respect it should be observed that the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, cited above, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty (see, in particular, the judgments in Keck and Mithouard, cited above, paragraphs 16 and 17, in Case C-292/92 Huenermund and Others [1993] ECR I-6787, paragraph 21, and in Case C-412/93 Société d' Importation Édouard Leclerc-Siplec [1995] ECR I-0000, paragraph 21). | 34 If these claims were allowed the applicant would obtain exactly the same result as he would have obtained from promotion to Grade B 1 in the 1987 financial year . However, the applicant did not challenge in due time the 1987 promotion decisions in order to show that he was unlawfully passed over . | 0 |
3,431 | 60. First, the French Republic stated at the hearing – and the point was not disputed by the Commission – that, like biomedical analyses, a significant majority of medicinal products are sold in pharmacies on medical prescription. Second, in Case C‑531/06 Commission v Italy (paragraph 90) and Apothekerkammer des Saarlandes and Others (paragraph 60), the Court held that medicinal products prescribed or used for therapeutic reasons may none the less prove seriously harmful to health if they are consumed unnecessarily or incorrectly. Thus, the existence of a prescription does not appear to prevent the risk for public health stemming from the incorrect or inappropriate dispensing of medicinal products. | 60. Given the particular nature of medicinal products and of the medicinal-product market, and as Community law currently stands, the Court’s findings in Commission v Greece cannot be transposed to the field of the retail supply of medicinal products. Unlike optical products, medicinal products prescribed or used for therapeutic reasons may none the less prove seriously harmful to health if they are consumed unnecessarily or incorrectly, without the consumer being in a position to realise that when they are administered. Furthermore, a medically unjustified sale of medicinal products leads to a waste of public financial resources which is not comparable to that resulting from unjustified sales of optical products. | 1 |
3,432 | 32 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 [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, and Gloszczuk, paragraph 48). | 19 IN ORDER TO FULFIL THEIR FUNCTION OF ENSURING LEGAL CERTAINTY LIMITATION PERIODS MUST BE FIXED IN ADVANCE . | 0 |
3,433 | 49
With particular regard to Article 4(1) of Directive 90/435, that provision provides that, where a parent company, by virtue of its association with its subsidiary, receives distributed profits, the Member State of the parent company is required either to refrain from taxing such profits or to authorise the parent company to deduct from the amount of tax payable that fraction of the corporation tax paid by the subsidiary which relates to those profits and, if appropriate, the amount of the withholding tax levied by the Member State in which the subsidiary is resident, up to the limit of the amount of the corresponding domestic tax (judgments of 12 December 2006, Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 102; of 3 April 2008, Banque Fédérative du Crédit Mutuel, C‑27/07, EU:C:2008:195, paragraph 25, and of 8 March 2017, Wereldhave Belgium and Others, C‑448/15, EU:C:2017:180, paragraph 37). | 4 THAT OBJECTION MUST BE DISMISSED . IN STAFF CASES WHERE IT IS A RULE THAT A COMPLAINT MUST NECESSARILY BE MADE BEFORE AN ACTION IS BROUGHT THE APPLICANTS ' INTEREST IN SEEKING ANNULMENT OF THE DECISION REJECTING THEIR COMPLAINT AT THE SAME TIME AS THE MEASURE ADVERSELY AFFECTING THEM CANNOT BE DENIED WHATEVER THE SPECIFIC EFFECT OF THE ANNULMENT OF SUCH A DECISION IN A GIVEN CASE .
| 0 |
3,434 | 39. It should be borne in mind, as a preliminary point, that the Court has held that the pensions provided under a scheme having features such as those of the French pension scheme for civil servants at issue in the main proceedings come within the concept of pay within the meaning of Article 141 EC (see to that effect, Griesmar , EU:C:2001:648, paragraphs 26 to 38, and Mouflin , C‑206/00, EU:C:2001:695, paragraphs 22 and 23). | 50
In that regard, it should be noted that a distortion must be obvious from the documents in the Court’s file without any need for a new assessment of the facts and the evidence (see judgments of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 80, and of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 45). | 0 |
3,435 | 44. As regards, specifically, the factor relating to organisation, although the Court has previously held that that factor contributes to defining an economic entity (see, to that effect, Case C‑13/95 Süzen [1997] ECR I‑1259, paragraph 15; Case C‑234/98 Allen and Others [1999] ECR I‑8643, paragraph 27; Case C‑175/99 Mayeur [2000] ECR I-7755, paragraph 53; and Case C-172/99 Liikenne [2001] ECR I‑745, paragraph 34), it has also held that an alteration in the organisational structure of the entity transferred is not such as to prevent the application of Directive 2001/23 (see, to that effect, Joined Cases C‑171/94 and C‑172/94 Merckx and Neuhuys [1996] ECR I‑1253, paragraphs 20 and 21; Mayeur , paragraph 54; and Case C‑458/05 Jouini and Others [2007] ECR I‑7301, paragraph 36). | 26. Même si, selon leur libellé, les dispositions du traité FUE relatives à la liberté d’établissement visent à assurer le bénéfice du traitement national dans l’État membre d’accueil, elles s’opposent également à ce que l’État membre d’origine entrave l’établissement dans un autre État membre de l’un de ses ressortissants ou d’une société constituée en conformité avec sa législation (arrêts National Grid Indus, précité, point 35, et du 25 avril 2013, Commission/Espagne, C‑64/11, point 25). | 0 |
3,436 | 43. As the Court has consistently held, that right to deduct is an integral part of the VAT scheme and as a general rule may not be limited. In particular, that right is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, inter alia, Case C‑62/93 BP Supergas [1995] ECR I‑1883, paragraph 18; Case C‑392/09 Uszodaépítő [2010] ECR I‑0000, paragraph 34, and Enel Maritsa Iztok 3 , paragraph 32). | 47. It would therefore be contrary to the objective of road safety mentioned in the first and fourth recitals in the preamble to Directive 91/439 not to allow a host Member State to refuse to recognise a driving licence for vehicles in category D issued on the basis of a driving licence for vehicles in category B which is vitiated by a defect justifying the non-recognition of that latter licence. | 0 |
3,437 | 6 That 60% rule, too, was declared invalid by the Court for being in breach of the principle of the protection of legitimate expectations on the ground that the application to the producers covered by Article 3a of Regulation No 857/84, as amended, of a reduction of 40% which, far from being representative of the rates applicable to the producers covered by Article 2, was more than double the highest total of such rates, must be regarded as a restriction which specifically affected the first-mentioned category of producers by very reason of their undertaking as to non-marketing or conversion (judgments of 11 December 1990 in Case C-189/89 Spagl v Hauptzollamt Rosenheim [1990] ECR I-4539, paragraphs 24 and 29, and in Case C-217/89 Pastaetter v Hauptzollamt Bad Reichenhall [1990] ECR I-4585, paragraphs 15 and 20). | 25. The Court has held that the decisive criterion for determining whether a measure falls within the scope of ‘employment conditions’ within the meaning of that clause is, precisely, the criterion of employment, that is to say the employment relationship between a worker and his employer (see, to that effect, Case C‑361/12 Carratù [2013] ECR, paragraph 35). | 0 |
3,438 | 54. À cet égard, il résulte d’une jurisprudence constante que la Commission peut, dans l’exercice des compétences dont elle dispose en vertu des articles 107 TFUE et 108 TFUE, arrêter des lignes directrices qui ont pour objet d’indiquer la manière dont elle entend exercer, au titre des mêmes articles, son pouvoir d’appréciation à l’égard d’aides nouvelles ou à l’égard de régimes d’aides existants (arrêt du 18 juin 2002, Allemagne/Commission, C‑242/00, Rec. p. I‑5603, point 27). | 65. En vertu de l’article 4, paragraphe 2, de la directive «concurrence», de l’article 7, paragraphe 3, de la directive «autorisation» et de l’article 8, paragraphe 1, de la directive-cadre, les droits d’utilisation des radiofréquences doivent être attribués sur la base de critères objectifs, transparents, non discriminatoires et proportionnés. Cette dernière condition implique que ces critères soient propres à garantir la réalisation de l’objectif qu’ils poursuivent et n’aillent pas au-delà de ce qui est nécessaire pour qu’il soit atteint. | 0 |
3,439 | 100. It should be noted that, according to settled case-law, it is not necessary to establish in every case that there has been a transfer of State resources for the advantage granted to one or more undertakings to be capable of being regarded as a State aid within the meaning of Article 107(1) TFEU (see, to that effect, Case C‑387/92 Banco Exterior de España [1994] ECR I-877, paragraph 14; Case C‑6/97 Italy v Commission [1999] ECR I-2981, paragraph 16; and Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 36). | 36 In that respect, it should first be noted that, according to settled case-law, it is not necessary to establish in every case that there has been a transfer of State resources for the advantage granted to one or more undertakings to be capable of being regarded as a State aid within the meaning of Article 87(1) EC (see, in particular, Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, paragraph 14; Case C-6/97 Italy v Commission [1999] ECR I-2981, paragraph 16). | 1 |
3,440 | 73. Similarly, if a prudent and alert economic operator can foresee the adoption of a Community measure likely to affect his interests, he cannot plead that principle if the measure is adopted (see Van den Bergh en Jurgens and Van Dijk Food Products (Lopik) v EEC , paragraph 44, and Belgium and Forum 187 v Commission , paragraph 147). | 33. Quand bien même cette appréciation de la Cour a été limitée à l’article 2, paragraphe 6, de la directive 89/665, ainsi que l’a relevé à juste titre la République fédérale d’Allemagne, il n’en demeure pas moins qu’une telle conclusion vaut également pour la directive 89/665 envisagée dans son ensemble. | 0 |
3,441 | 34 In that regard, it should be pointed out that, according to the principle that the rights of the defence must be observed, an official must have the opportunity to comment on every document which the institution intends to use against him (see, in particular, Vidrányi, paragraph 20). Where an official is not given such an opportunity the undisclosed documents must not be taken into consideration as evidence. However, the exclusion of certain documents used by the Commission is of no significance except to the extent to which the Commission's objection can be proved only by reference to those documents (Case 107/82 AEG v Commission [1983] ECR 3151, paragraphs 24 to 30). | 33. However, Article 14 of Directive 1999/31 makes ‘landfills which have been granted a permit, or which are already in operation at the time of [its] transposition …’, which must be effected by 16 July 2001 at the latest, subject to a transitional derogating system. | 0 |
3,442 | 30. As is clear from its very wording, the third subparagraph of Article 88(2) EC covers an exceptional case (Case 156/77 Commission v Belgium [1978] ECR 1881, paragraph 16). According to that provision, the Council acting unanimously, ‘on application by a Member State’, may decide that aid which that State is granting or intends to grant must be regarded as compatible with the common market ‘in derogation from the provisions of Article 87 or from the regulations provided for in Article 89’, if such a decision is justified by ‘exceptional circumstances’. | 16ATTENDU QUE L ' ARTICLE 93 DU TRAITE , CONFERANT A LA COMMISSION LE POUVOIR NECESSAIRE POUR VEILLER A L ' APPLICATION ET AU RESPECT DES PRINCIPES DE L ' ARTICLE 92 , ETABLIT , AU PARAGRAPHE 2 , UNE PROCEDURE PARTICULIERE PERMETTANT A CETTE INSTITUTION DE SE PRONONCER , EN DEHORS DU CAS EXCEPTIONNEL ET PARTICULIER VISE A L ' ALINEA 3 DE CETTE DISPOSITION , SUR LA COMPATIBILITE AVEC LE TRAITE TANT DES AIDES ACCORDEES PAR LES ETATS OU AU MOYEN DE RESSOURCES D ' ETAT QUE , EN VERTU DU PARAGRAPHE 3 , DES PROJETS TENDANT A INSTITUER OU A MODIFIER DES AIDES , ET D ' EN DECIDER EVENTUELLEMENT LA SUPPRESSION OU LA MODIFICATION ; | 1 |
3,443 | 62 As the German Government has emphasised the difficulty in distinguishing between supplies of goods and supplies of services, particularly where work is carried out on a motor vehicle, it should be observed that there is a consistent body of case-law to the effect that in order to determine whether a given transaction is a supply of goods or a supply of services, it is necessary to identify its characteristic features (Case C-231/94 Faaborg-Gelting Linien [1996] ECR I-2395, paragraph 12). Where a supply of goods is only one component of a transaction in which supplies of services predominate, the transaction must be regarded as a supply of services (Faaborg-Gelting Linien, paragraph 14). | 62. However, when such an agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to European Union law, the Member State must refrain from adopting such a measure (see, to this effect, Evans Medical and Macfarlan Smith , paragraph 32, and Centro-Com , paragraph 60). | 0 |
3,444 | 67. Fourth, it should be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the means required so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 93). | 93. Fourth, where the undertaking which is to discharge public service obligations, in a specific case, is not chosen pursuant to a public procurement procedure which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with means of transport so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations. | 1 |
3,445 | 41. Finally, so far as concerns the third argument, it is apparent from Joined Cases C‑403/08 and C-429/08 Football Association Premier League and Others [2011] ECR I-0000, paragraphs 76 to 145, that communications to the public by satellite must be capable of being received in all the Member States and that they therefore by definition have a cross-border nature. Furthermore, the communications at issue in the main proceedings display such a nature since they involve Belgian and Netherlands companies, Airfield and Canal Digitaal, and the programme-carrying signals are intended in particular for television viewers residing in Belgium and Luxembourg. | 26 It is the criteria laid down in paragraphs (1) and (2) of Article 4 which are to guide the Member States in designating and defining the boundaries of SPAs. It is clear from paragraphs 26 and 27 of Santoña Marshes that, notwithstanding the divergences between the various language versions of the last subparagraph of Article 4(1), the criteria in question are ornithological criteria. | 0 |
3,446 | 27. It is also settled case-law that, in contrast to a quantity discount linked solely to the volume of purchases from the manufacturer concerned, which is not, in principle, liable to infringe Article 82 EC, a loyalty rebate, which by offering customers financial advantages tends to prevent them from obtaining all or most of their requirements from competing manufacturers, amounts to an abuse within the meaning of that provision (see judgments in Nederlandsche Banden-Industrie-Michelin v Commission , 322/81, EU:C:1983:313, paragraph 71, and Tomra Systems and Others v Commission , C‑549/10 P, EU:C:2012:221, paragraph 70). | 70. In the event that an undertaking in a dominant position makes use of a system of rebates, the Court has ruled that that undertaking abuses that position where, without tying the purchasers by a formal obligation, it applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of loyalty rebates, that is to say, discounts conditional on the customer’s obtaining — whether the quantity of its purchases is large or small — all or most of its requirements from the undertaking in a dominant position (see Case 85/76 Hoffman‑La Roche [1979] ECR 461, paragraph 89, and Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission [1983] ECR 3461, paragraph 71). | 1 |
3,447 | 52. In order to reply to the question raised, it should be noted that, according to the general principles on which the Community is based and which govern the relations between it and the Member States, it is for the Member States, under Article 10 EC, to ensure that Community rules are implemented within their territories. In so far as Community law, including its general principles, does not include common rules to that effect then, when the national authorities implement Community rules, they are to act in accordance with the procedural and substantive rules of their own national law (see, in particular, Case C‑285/93 Dominikanerinnen-Kloster Altenhohenau [1995] ECR I-4069, paragraph 26, and Case C‑495/00 Azienda Agricola Giorgio, Giovanni e Luciano Visentin and Others [2004] ECR I-2993, paragraph 39). | 39. According to the general principles on which the Community is based and which govern relations between it and the Member States, it is for the latter, under Article 5 of the EC Treaty (now Article 10 EC), to ensure that Community rules are implemented within their territories. In so far as Community law, including its general principles, does not include common rules to that effect then, when the national authorities implement Community rules, they are to act in accordance with the procedural and substantive rules of their own national law (see, in particular, Case C-285/93 Dominikanerinnen-Kloster Altenhohenau [1995] ECR I-4069, paragraph 26, and Case C-292/97 Karlsson and Others [2000] ECR I-2737, paragraph 27). | 1 |
3,448 | 70
In that respect, the Member States enjoy a wide discretion (see, to that effect, judgment of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 88), which may be called into question by the Commission only in the event of a manifest error (see, to that effect, judgment of 18 February 2016, Germany v Commission, C‑446/14 P, not published, EU:C:2016:97, paragraph 44). | 23 In so doing, it is important to bear in mind that Articles 47 and 209 of the Act of Accession introduced a derogation from the principle of free movement of goods and that it is settled case-law that such derogations are to be interpreted strictly (see, to this effect, Case C-191/90 Generics and Harris Pharmaceuticals [1992] ECR I-5335, paragraph 41). | 0 |
3,449 | 64 Such conduct is incompatible with the obligation imposed upon all persons subject to Community law to acknowledge that measures adopted by the institutions are fully effective so long as they have not been declared invalid by the Court and to recognize their enforceability unless the Court has decided to suspend the operation of the said measures ( see, in particular, the judgment of 13 February 1979 in Case 101/78 Granaria v Hoofdproduktschap voor Akkerbouwprodukten (( 1979 )) ECR 623, paragraph 5 ) and cannot be justified on the basis of superior legal interests . | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
3,450 | 30 Secondly, as is clear from the nomenclature of capital movements set out in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (repealed by the Treaty of Amsterdam) (OJ 1988 L 178, p. 5), capital movements include investments in real estate on the territory of a Member State by non-residents. That nomenclature still has the same indicative value for the purposes of defining the notion of capital movements (see Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraph 21, and Case C-464/98 Stefan [2001] ECR I-173, paragraph 5). | 44 The Fund does not accept that Mr Pavlov and the other applicants practise their profession under a contract of employment and has issued enforcement orders against them for the recovery of arrears of premiums. | 0 |
3,451 | 19. The Court added, in paragraph 57 of Commission v Germany , that assessment of reduction coupons for the purpose of calculating VAT is determined by their legal and financial characteristics, and that the taxable amount in the hands of the trader who accepts them may not be less than the sum of money which he actually receives for the supply by him. | 30. It should be recalled as a preliminary point that, by becoming a party to the Aarhus Convention, the European Union undertook to ensure, within the scope of European Union law, a general principle of access to environmental information held by the public authorities (see, to that effect, Case C‑524/09 Ville de Lyon [2010] ECR I‑14115, paragraph 35). | 0 |
3,452 | 31. ‘Establishment’ is defined in Article 2(h) of Regulation No 1346/2000 as ‘any place of operations where the debtor carries out a non-transitory economic activity with human means and goods’. As the Court has already held, the fact that that definition links the pursuit of an economic activity to the presence of human resources shows that a minimum level of organisation and a degree of stability are required. It follows that, conversely, the presence alone of goods in isolation or bank accounts does not, in principle, satisfy the requirements for classification as an ‘establishment’ (judgment in Interedil , C‑396/09, EU:C:2011:671, paragraph 62). | 18 THOSE PROVISIONS SERVE THE SAME PURPOSE , NAMELY THE PREVENTION IN THE MARKETING OF WINE OF ALL PRACTICES WHICH ARE OF SUCH A NATURE AS TO CREATE FALSE APPEARANCES , IRRESPECTIVE OF WHETHER SUCH PRACTICES GIVE RISE IN THE MINDS OF THOSE ENGAGED IN THE TRADE OR OF CONSUMERS TO CONFUSION WITH EXISTING PRODUCTS OR THE ERRONEOUS IMPRESSION OF AN ORIGIN OR OF CHARACTERISTICS WHICH IN REALITY DO NOT EXIST .
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3,453 | 19 As the Court has repeatedly held, the requirement of a permanent establishment is the very negation of the fundamental freedom to provide services in that it results in depriving Article 59 of the Treaty of all effectiveness, a provision whose very purpose is to abolish restrictions on the freedom to provide services of persons who are not established in the State in which their services are to be provided. If such a requirement is to be accepted, it must therefore be shown that it constitutes a condition indispensable for attaining the objective pursued (see, in particular, Case C-222/95 Parodi [1997] ECR I-3899, paragraph 31). | 21 AS REGARDS THE DISTANCES COVERED , THE POWER OF THE VEHICLES USED AND THE INTENSITY OF THEIR USE , THE TRANSPORT OPERATIONS REQUIRED BY OPERATIONS OF THAT SCALE HAVE PRECISELY THOSE CHARACTERISTICS WHICH JUSTIFIED THE GENERALIZATION OF THE USE OF THE TACHOGRAPH , NAMELY THE RISK THAT VEHICLES MIGHT BE OVERUSED AND DRIVERS OVERWORKED , WITH ALL THE UNDESIRABLE CONSEQUENCES FOR THE SOCIAL PROTECTION OF TRANSPORT WORKERS , ROAD SAFETY AND THE MAINTENANCE OF PROPER CONDITIONS OF COMPETITION IN THE SECTOR IN QUESTION .
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3,454 | 25. Article 1 of Directive 95/46 requires Member States to ensure the protection of the fundamental rights and freedoms of natural persons, and in particular their privacy, in relation to the handling of personal data (see, to that effect, Case C‑524/06 Huber [2008] ECR I‑9705, paragraph 47). | 37. À cet égard, il résulte de la jurisprudence qu’est recevable le pourvoi formé contre un arrêt du Tribunal en ce que celui-ci a rejeté une exception d’irrecevabilité soulevée par une partie à l’encontre d’un recours, alors que le Tribunal a, dans la suite du même arrêt, rejeté ce recours comme non fondé (arrêts du 26 février 2002, Conseil/Boehringer, C‑23/00 P, Rec. p. I‑1873, point 50, ainsi que du 22 février 2005, Commission/max.mobil, C‑141/02 P, Rec. p. I‑1283, points 50 et 51). | 0 |
3,455 | 63. Concerning the expression ‘as a result of a legal transfer or merger’ , which also appears in Article 1(1) of Directive 77/187, it should be noted that the Court of Justice has, on account of the differences between the language versions of that directive and the divergences between the laws of the Member States with regard to the concepts to which the latter refer, given that expression a sufficiently flexible interpretation in keeping with the objective of the directive, which is to safeguard employees in the event of a transfer of their undertaking (Case C‑29/91 Redmond Stichting [1992] ECR I‑3189, paragraphs 10 and 11; Joined Cases C‑171/94 and C‑172/94 Merckx and Neuhuys [1996] ECR I‑1253, paragraph 28; Jouini and Others , paragraph 24). It has thus ruled that the fact that the transfer results from unilateral decisions of public authorities rather than from an agreement does not render the directive inapplicable (see, in particular Redmond Stichting , paragraphs 15 to 17; Collino and Chiappero , paragraph 34; UGT-FSP , paragraph 25). | 27 When a taxable person thus decides to retain a capital item entirely within his private assets, whether or not he uses it for both business and private purposes, no portion of the input VAT due or paid on the acquisition of the item is therefore deductible. | 0 |
3,456 | 26. The principle of equivalence requires that the national rule in question be applied without distinction, whether the infringement alleged is of European Union law or national law, where the purpose and cause of action a re similar (Case C-326/96 Levez [1998] ECR I-7835, paragraph 41; Case C‑78/98 Preston and Others [2000] ECR I‑3201, paragraph 55; and Case C‑63/08 Pontin [2009] ECR I‑0000, paragraph 45). | 30 As the Commission has rightly pointed out, the Tribunale Amministrativo Regionale del Lazio has not asked the Court for a preliminary ruling on the validity of Regulation No 1550/95. | 0 |
3,457 | 41. As regards the cases in the main proceedings, the fact, underlined by the referring court, that the assistance at issue is governed by legislation and that it does not supplement a social benefit due under a regulation of general application is not of such a nature to call into question the classification as pay which attaches to a benefit granted by the State acting as an employer under an employment relationship (see, to that effect, Case C-7/93 Beune [1994] ECR I-4471, paragraphs 26 to 29 and 37; Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 37; and Case C-351/00 Niemi [2002] ECR I-7007, paragraphs 41 and 42). | 72. S’agissant du montant et de la forme de cette astreinte, il appartient à la Cour, dans l’exercice de son pouvoir d’appréciation, conformément à une jurisprudence constante, de fixer l’astreinte de telle sorte que celle‑ci soit, d’une part, adaptée aux circonstances et, d’autre part, proportionnée à l’infraction constatée ainsi qu’à la capacité de paiement de l’État membre concerné. Les propositions de la Commission concernant l’astreinte ne sauraient lier la Cour et ne constituent qu’une base de référence utile. De même, des lignes directrices telles que celles contenues dans les communications de la Commission ne lient pas la Cour, mais contribuent à garantir la transparence, la prévisibilité et la sécurité juridique de l’action menée par la Commission elle-même lorsque cette institution fait des propositions à la Cour. En effet, dans le cadre d’une procédure fondée sur l’article 260, paragraphe 2, TFUE, relative à un manquement qui persiste dans le chef d’un État membre nonobstant le fait que ce même manquement a déjà été constaté à l’occasion d’un premier arrêt rendu au titre de l’article 226 CE ou de l’article 258 TFUE, la Cour doit demeurer libre de fixer l’astreinte infligée au montant et sous la forme qu’elle considère adéquats pour inciter cet État membre à mettre fin à l’inexécution des obligations découlant de ce premier arrêt de la Cour (arrêts Commission/Grèce, C‑378/13, EU:C:2014:2405, point 52, ainsi que Commission/Italie, C‑196/13, EU:C:2014:2407, point 95 et jurisprudence citée). | 0 |
3,458 | 35
In order to answer that question, it should be noted that the Court has consistently held that, 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 objectives pursued by the rules of which it is part (see, inter alia, judgment of 21 May 2015 in Rosselle, C‑65/14, EU:C:2015:339, paragraph 43 and the case-law cited). | 9. In January 1996, Scott’s shares were purchased by Kimberly-Clark Corp, which announced the closure of the manufacturing plant in January 1998. The plant’s assets – namely, the site and its improvements – were purchased by Procter & Gamble in June 1998. | 0 |
3,459 | 44 In that connection, it must be recalled that a breach of Community law will be sufficiently serious if it has persisted despite a preliminary ruling from the Court from which it is clear that the conduct in question constituted an infringement (Brasserie du Pêcheur and Factortame, cited above, paragraph 57). | 18 The services supplied in the leasing of vehicles, it must be noted, consist principally in negotiating, drawing up, signing and administering the relevant agreements and in making the vehicles concerned, which remain the property of the leasing company, physically available to customers. | 0 |
3,460 | 31
As a preliminary point, it must be recalled that Article 6 of the Habitats Directive imposes upon the Member States a series of specific obligations and procedures designed, as is clear from Article 2(2) of that directive, to maintain, or as the case may be restore, at a favourable conservation status natural habitats and, in particular, special areas of conservation (see, to that effect, judgment of 11 April 2013 in Sweetman and Others, C‑258/11, EU:C:2013:220, paragraph 36 and the case-law cited). | 98. The patients of a dentist visit a dental practice with the sole objective of receiving treatment, as the broadcasting of phonograms is in no way a part of dental treatment. They have access to certain phonograms by chance and without any active choice on their part, according to the time of their arrival at the practice and the length of time they wait and the nature of the treatment they undergo. Accordingly, it cannot be presumed that the usual customers of a dentist are receptive as regards the broadcast in question. | 0 |
3,461 | 26. However, it is apparent from settled case-law that the measures which the Member States may adopt under Article 2 2(8) of the Sixth Directive in order to ensure the correct levying and collection of the tax and for the prevention of fraud must not go further than is necessary to attain such objectives (see Joined Cases C‑110/98 to C‑147/98 Gabalfrisa and Others [2000] ECR I‑1577, paragraph 52, and the order of 3 March 2004 in Case C‑395/02 Transport Service [2004] ECR I‑1991, paragraph 29). Those measures may not therefore be used in such a way as to have the effect of undermining the neutrality of VAT, which is a fundamental principle of the common system of VAT established by the relevant Community legislation (see Case C‑454/98 Schmeink & Cofreth and Strobel [2000] ECR I‑6973, paragraph 59, and Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 92). | 30. La Cour a également jugé que le principe de protection de la confiance légitime ne saurait être étendu au point d’empêcher, de façon générale, une règle nouvelle de s’appliquer aux effets futurs de situations nées sous l’empire de la règle ancienne (voir, notamment, arrêts du 14 janvier 1987, Allemagne/Commission, 278/84, Rec. p. 1, point 36; du 20 septembre 1988, Espagne/Conseil, 203/86, Rec. p. 4563, point 19, et du 11 décembre 2008, Commission/Freistaat Sachsen, C‑334/07 P, Rec. p. I‑9465, point 43). | 0 |
3,462 | 38. In that regard, it should be recalled that the Court has already ruled that it is apparent from the wording of Directive 1999/70 and of the framework agreement, as well as from their background and purpose, that the provisions laid down apply to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies (Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraphs 54 to 57; Case C-53/04 Marrosu and Sardino [2006] ECR I-7213, paragraphs 40 to 43; Case C-180/04 Vassallo [2006] ECR I‑7251, paragraphs 32 to 35; and Del Cerro Alonso , paragraph 25). | 19 Those provisions seek to ensure that driving times and rest periods alternate, so that drivers do not remain at the wheel of their vehicles for periods of such length as to cause tiredness and jeopardise road safety (Van Swieten, cited above, paragraph 23). | 0 |
3,463 | 136. Consequently, had the General Court taken account of the actual impact of the infringement at issue on the market, assuming that that impact could in fact be measured, it would have done so for the sake of completeness (see, to this effect, the order of 13 December 2012 in Case C‑654/11 P Transcatab v Commission , paragraph 43, and Case C‑511/11 P Versalis v Commission [2013] ECR I‑0000, paragraphs 83 and 84). | 40. That stated, Article 73d(1)(a) of the Treaty, in so far as it is a derogation from the fundamental principle of the free movement of capital, must be interpreted strictly. That provision cannot therefore be interpreted as meaning that all tax legislation which draws a distinction between taxpayers based on their place of residence or the Member State in which they invest their capital is automatically compatible with the Treaty. | 0 |
3,464 | 39. Just like other expressions which define taxable transactions for the purposes of the Sixth Directive (see, in particular, Joined Cases C‑354/03, C‑355/03 and C‑484/03 Optigen and Others [2006] ECR I‑483, paragraph 44, and Joined Cases C‑439/04 and C‑440/04 Kittel and Recolta Recycling [2006] ECR I‑6161, paragraph 41), the meanings of ‘intra-Community supply’ and ‘intra-Community acquisition’ are objective in nature and apply without regard to the purpose or results of the transactions concerned ( Teleos and Others , paragraph 38). | 32. À cet égard, il importe de rappeler que, selon une jurisprudence constante, il incombe à la Commission d’établir l’existence du manquement allégué. C’est en effet cette dernière qui doit apporter à la Cour tous les éléments nécessaires à la vérification, par celle-ci, de l’existence du manquement sans pouvoir se fonder sur une présomption quelconque (voir, notamment, arrêt du 20 septembre 2007, Commission/Italie, C‑304/05, Rec. p. I‑7495, point 105). | 0 |
3,465 | 53
The Member States are thus bound to ensure, within the limit of a ceiling they are entitled to set to guarantee outstanding claims, that all those claims are paid (see, to that effect, judgment of 4 March 2004, Barsotti and Others, C‑19/01, C‑50/01 and C‑84/01, EU:C:2004:119, paragraph 36). | 35. In any event, the Court has already noted that, in the light of its wording, Article 5(3) of the Regulation does not require the current existence of damage (see, to that effect, Case C‑167/00 Henkel [2002] ECR I‑8111, paragraphs 48 and 49). It follows that an action seeking to prevent a repetition of behaviour regarded as wrongful comes within the scope of that provision. | 0 |
3,466 | 67
However, it is only in circumstances where the action for annulment would unquestionably have been admissible that the Court has held that a person may not plead the invalidity of an act of the European Union before a national court (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 17 to 25; of 30 January 1997, Wiljo, C‑178/95, EU:C:1997:46, paragraphs 15 to 25; of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 29 to 40; and of 22 October 2002, National Farmers’ Union, C‑241/01, EU:C:2002:604, paragraphs 34 to 39). In numerous other cases, the Court has held that it was not established that the action would unquestionably have been admissible (see, inter alia, to that effect, judgments of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraphs 30 to 34; of 8 March 2007, Roquette Frères, C‑441/05, EU:C:2007:150, paragraphs 35 to 48; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 37 to 52; of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 24 to 38; and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraphs 27 to 32). | 70. It is appropriate therefore to examine whether the difference in treatment between those two categories of taxpayer may be justified by an overriding reason in the public interest, in particular the need to preserve the coherence of the tax system. | 0 |
3,467 | 33. It must be observed, as a preliminary point, that the question of shipments of waste is regulated by harmonisation at Community level by the Regulation, in order to ensure the protection of the environment (Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 42). | 92. However, the Court has held that such a restriction can be justified in the light of EU law if it is based on objective public interest considerations independent of the nationality of the persons concerned and if it is proportionate to the legitimate objective pursued by the provisions of national law (see Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161, paragraph 33, and Commission v Hungary , paragraph 88). | 0 |
3,468 | 102. According to the case-law, in proceedings for failure to fulfil obligations under Article 226 EC it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled and in so doing it may not rely on any presumption (see, inter alia, Case 96/81 Commission v Netherlands , cited above, paragraph 6, Case C-408/97 Commission v Netherlands , cited above, paragraph 15, and Commission v Portugal , cited above, paragraph 80). | 37
However, as the Advocate General stated in essence in points 44 and 45 of his Opinion in the present case, that finding is made within the specific context of the case which gave rise to that judgment, a distinctive feature of which was the existence of circumstances contributing to attributing jurisdiction to those courts. | 0 |
3,469 | 99 The answer to the second part of the fifth question must therefore be that in the event of the transfer of pension rights from one occupational scheme to another owing to a worker' s change of job, the second scheme is obliged, on the worker reaching retirement age, to increase the benefits it undertook to pay him when accepting the transfer so as to eliminate the effects, contrary to Article 119, suffered by the worker in consequence of the inadequacy of the capital transferred, this being due in turn to the discriminatory treatment suffered under the first scheme, and it must do so in relation to benefits payable in respect of periods of service subsequent to 17 May 1990.
Question 6 | 45 Therefore, as the Court has already held in Case C-345/99 Commission v France, paragraph 22, 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). | 0 |
3,470 | 46 By contrast, the Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in appeal proceedings (see, in particular, Case C-390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I-769, paragraph 29, and Joined Cases C-486/01 P-R and C-488/01 P-R Front national and Martinez v Parliament [2002] ECR I-0000, paragraphs 83 to 85). | 39. Therefore, in order for Article 8 of Directive 2008/94 to apply, it is not necessary to identify the causes of the employer’s insolvency or of the underfunding of the supplementary occupational pension scheme. | 0 |
3,471 | 88. Second, the objective of Directive 2001/29 is to harmonise only certain aspects of the law on copyright (judgment in Padawan , EU:C:2010:620, paragraph 35). As it did not mention in that directive the characteristics or specific features referred to at paragraph 86 above, the EU legislature did not consider these to be relevant, in the light of the objective which it pursued by its measure of partial harmonisation. | 55. It follows from the foregoing that the decisive test for determining whether there has been such an infringement is not the individual nature of the act in question, but the discretion available to the institution when it was adopted. | 0 |
3,472 | 17 That examination procedure must enable the authorities of the host Member State to assure themselves, on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those certified by the national diploma. That assessment of the equivalence of the foreign diploma must be carried out exclusively in the light of the level of knowledge and qualifications which its holder can be assumed to possess in the light of that diploma, having regard to the nature and duration of the studies and practical training to which the diploma relates (see the judgment in Case 222/86 UNECTEF v Heylens, cited above, paragraph 13). | 13 SINCE IT HAS TO RECONCILE THE REQUIREMENT AS TO THE QUALIFICATIONS NECESSARY IN ORDER TO PURSUE A PARTICULAR OCCUPATION WITH THE REQUIREMENTS OF THE FREE MOVEMENT OF WORKERS, THE PROCEDURE FOR THE RECOGNITION OF EQUIVALENCE MUST ENABLE THE NATIONAL AUTHORITIES TO ASSURE THEMSELVES, ON AN OBJECTIVE BASIS, THAT THE FOREIGN DIPLOMA CERTIFIES THAT ITS HOLDER HAS KNOWLEDGE AND QUALIFICATIONS WHICH ARE, IF NOT IDENTICAL, AT LEAST EQUIVALENT TO THOSE CERTIFIED BY THE NATIONAL DIPLOMA . THAT ASSESSMENT OF THE EQUIVALENCE OF THE FOREIGN DIPLOMA MUST BE EFFECTED EXCLUSIVELY IN THE LIGHT OF THE LEVEL OF KNOWLEDGE AND QUALIFICATIONS WHICH ITS HOLDER CAN BE ASSUMED TO POSSESS IN THE LIGHT OF THAT DIPLOMA, HAVING REGARD TO THE NATURE AND DURATION OF THE STUDIES AND PRACTICAL TRAINING WHICH THE DIPLOMA CERTIFIES THAT HE HAS CARRIED OUT . | 1 |
3,473 | 14 As the Court has held, most recently in its judgment of 27 June 1989 in Case 113/88 Leukhardt v Hauptzollamt Reutlingen (( 1989 )) ECR 1991, paragraph 13 ), the structure and purpose of the regulations on the additional levy indicate that they contain an exhaustive list of the situations in which reference quantities or individual quantities may be granted and set out precise rules concerning the determination of those quantities . | 13 As the Court held in its judgment of 17 May 1988 in Case 84/87 Erpelding (( 1988 )) ECR 2647, the structure and purpose of the regulations concerned indicate that they contain an exhaustive list of the situations in which reference quantities or individual quantities may be granted and set out precise rules concerning the determination of those quantities . Since none of those provisions makes it possible for producers to obtain reference to milk deliveries made by them outside the 1981 to 1983 period it must be held that such an option is excluded, even in cases where the persons concerned had no representative production throughout that period . | 1 |
3,474 | 75. As regards, in that respect, InnoLux’s argument that taking those sales into account in order to calculate the fine imposed for breach of Article 101 TFEU is likely to result in the same anti-competitive conduct giving rise to concurrent penalties imposed by the competition authorities of a non-member State, it must be pointed out that, contrary to the Commission’s contentions, that claim is admissible at the appeal stage in the light of Article 170(1) of the Rules of Procedure of the Court, since it does not change the subject-matter of the proceedings. However, it must be borne in mind that, as the Court has held, neither the principle non bis in idem nor any other principle of law obliges the Commission to take account of proceedings and penalties to which the undertaking has been subject in non-member States (see judgments in Showa Denko v Commission , C‑289/04 P, EU:C:2006:431, paragraphs 52 to 58; SGL Carbon v Commission , C‑308/04 P, EU:C:2006:433, paragraphs 28 to 34; and SGL Carbon v Commission , C‑328/05 P, EU:C:2007:277, paragraphs 24 to 35). | 84. Having regard to the context and objectives of Directive 2004/38, the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness (see, to that effect, Eind , paragraph 43). | 0 |
3,475 | 45. It also follows from the case-law deriving from Case C-160/96 Molenaar [1998] ECR I-843 that, in the absence of provisions in Regulation No 1408/71 referring specifically to the risk of reliance on care, the Court has treated benefits relating to that risk as ‘sickness benefits’ within the meaning of that regulation (see, to that effect, da Silva Martins , paragraphs 39 to 48). | 45 There are, admittedly, limits to that right of residence, which is the corollary of the right to have access to the employment market and take up employment. | 0 |
3,476 | 63 Finally, such criteria must comply with all the fundamental principles of Community law, in particular the principle of non-discrimination as it follows from the provisions of the Treaty on the right of establishment and the freedom to provide services (see, to that effect, Beentjes, paragraph 29, and Commission v France, paragraph 50). | 26 Regulation No 1663/95, which is the implementing regulation for Regulation No 729/70, provides, in the first subparagraph of Article 8(1), what that written communication must contain. According to that article, that communication must indicate the corrective measures to be taken to ensure future compliance with the rules concerned, must give an evaluation of any expenditure which it may propose to exclude and must make reference to Regulation No 1663/95. | 0 |
3,477 | 26. In particular, the fact that Article 34(2)(c) EU constituted the only possible legal basis for the adoption of a measure such as the contested decision, even if it were established, is irrelevant in that regard, in so far as the Council’s explicit choice to refer in the contested decision not to that provision but to Article 26(1)(a) of the Europol Decision and Articles 5 and 6 of Decision 2009/934 indicates clearly that the contested decision is based on the latter provisions as such (see, by analogy, judgment in Parliament v Council , C‑540/13, EU:C:2015:224, paragraph 21). | 41. Moreover, it is settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effects of the ruling (Case C‑184/99 Grzelczyk [2001] ECR I-6193, paragraph 52, and Case C‑209/03 Bidar [2005] ECR I-2119, paragraph 68). | 0 |
3,478 | 55. In the context of the cooperation established by Article 267 TFEU, it is for the national courts to determine whether that is the situation in a particular case and to make all definitive findings of fact in that regard (see, to that effect, CPP , paragraph 32, and Levob Verzekeringen and OV Bank , paragraph 23). | 23. In the context of the cooperation required by Article 234 EC, it is indeed for the national courts to determine whether such is the situation in a particular case and to make all definitive findings of fact in that regard. Nevertheless, it is for the Court to provide the national courts with all the guidance as to the interpretation of Community law which may be of assistance in adjudicating on the case pending before them. | 1 |
3,479 | 59. Whilst, for the Federal Republic of Germany, recognition of the right to exemption from corporation tax for non-resident charitable foundations would entail a reduction in its corporation tax receipts, it has been consistently held in the case-law that reduction in tax revenue cannot be regarded as an overriding reason in the public interest which may be relied on to justify a measure which is, in principle, contrary to a fundamental freedom (see, to that effect, Verkooijen , paragraph 59; Case C-136/00 Danner [2002] ECR I-8147, paragraph 56; X and Y , paragraph 50; and Manninen , paragraph 49). | 58. Moreover, specific individual circumstances, such as the age, illiteracy, level of education, economic situation or health of a sponsor’s relevant family members must be taken into consideration in order to dispense those family members from the requirement to pass an examination such as the one at issue in the main proceedings when, due to those circumstances, they are unable to take or pass that examination. | 0 |
3,480 | 34. It is also apparent from settled case-law that Article 28 EC reflects the obligation to respect the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of Community products to national markets (see, to that effect, Case 174/82 Sandoz [1983] ECR 2445, paragraph 26; Case 120/78 Rewe‑Zentral (‘ Cassis de Dijon ’) [1979] ECR 649, paragraphs 6, 14 and 15; and Keck and Mithouard , paragraphs 16 and 17). | 17 As the Court has also consistently held (see, inter alia, the judgment in Monteil and Samanni, cited above, paragraph 23), a product is "presented for treating or preventing disease" within the meaning of Directive 65/65 in particular when it is expressly "indicated" or "recommended" as such, possibly by means of labels, leaflets or oral representation. | 0 |
3,481 | 18. As regards the third ground of inadmissibility, it is clear from settled case-law of the Court that the admissibility of actions for annulment brought by the Commission cannot be subject to the condition that an interest in its bringing proceedings must be demonstrated (see judgments in Commission v Council , 45/86, EU:C:1987:163, paragraph 3, and Commission v Council , C‑370/07, EU:C:2009:590, paragraph 16). | 28 In the latter case, comparing the circumstances in which the person concerned actually uses the property with the circumstances in which the corresponding economic activity is usually carried out may be one way of ascertaining whether the activity concerned is carried on for the purpose of obtaining income on a continuing basis. | 0 |
3,482 | 49. By contrast, where the material and formal conditions laid down by the Sixth Directive for the creation and exercise of that right are met, it is incompatible with the rules governing the right to deduct under that directive to impose a penalty, in the form of refusing that right to a taxable person who did not know, and could not have known, that the transaction concerned was connected with fraud committed by the supplier, or that another transaction forming part of the chain of supply prior or subsequent to that transaction carried out by the taxable person was vitiated by VAT fraud (see, to that effect, judgments in Optigen and Others , C‑354/03, C‑355/03 and C‑484/03, EU:C:2006:16; paragraphs 51, 52 and 55; Kittel and Recolta Recycling , C‑439/04 and C‑440/04, EU:C:2006:446, paragraphs 44 to 46 and 60; and in Mahagében and Dávid , C‑80/11 and C‑142/11, EU:C:2012:373, paragraphs 44, 45 and 47). | 24. Effectiveness of fiscal supervision constitutes an overriding requirement of general interest capable of justifying a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty (see, inter alia, Futura Participations and Singer , paragraph 31). A Member State may therefore apply measures which enable the amount of costs deductible in that State as research expenditure to be ascertained clearly and precisely (Case C-254/97 Baxter and Others [1999] ECR I-4809, paragraph 18). | 0 |
3,483 | 74. With regard, secondly, to the objectives pursued by that legislation, the Autonomous Government of Catalonia and the Spanish Government contend that that legislation, by allowing an appropriate territorial cover, by guaranteeing the quality of the service and by promoting competition, seeks, as is expressly clear from the preamble to Decree 45/2010, both to protect consumers and to ensure road safety. According to the Court’s settled case-law, both consumer protection (see, to that effect, judgments in Attanasio Group , C‑384/08, EU:C:2010:133, paragraph 50, and in Essent and Others , C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 58) and the need to ensure road safety (judgment in Commission v Portugal , C‑438/08, EU:C:2009:651, paragraph 48 and the case-law cited) constitute overriding reasons in the public interest which are capable of justifying restrictions on freedom of establishment. | 58. The objective of undistorted competition on those markets is also pursued by the FEU Treaty, the preamble to which underlines the need for concerted action in order to guarantee, inter alia, fair competition, the ultimate aim of that action being to protect consumers. According to the Court’s settled case‑law, consumer protection constitutes an overriding reason in the public interest (Case C‑260/04 Commission v Italy [2007] ECR I‑7083, paragraph 27; Case C‑393/05 Commission v Austria [2007] ECR I‑10195, paragraph 52; and Case C‑458/08 Commission v Portugal [2010] ECR I‑11599, paragraph 89). | 1 |
3,484 | 36
In the second place, it should be noted that the teleological interpretation of Article 1(2)(c) of Directive 1999/44, in the light of the purpose thereof to ensure a high level of consumer protection (judgment of 3 October 2013, Duarte Hueros, C‑32/12, EU:C:2013:637, paragraph 25), supports the interpretation of that provision referred to in paragraph 34. | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
3,485 | 10 In that regard, it must be pointed out that, according to settled case-law, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, in particular, Case C-479/98 Commission v Greece [2000] ECR I-4657, paragraph 11). | 37. However, where the same ground of refusal is given for a category or group of goods or services, the competent authority may use only general reasoning for all of the goods and services concerned. | 0 |
3,486 | 27. The rules in Article 17(5) of the Sixth Directive concern the input tax chargeable on expenses relating exclusively to economic transactions. The determination of the methods and criteria for apportioning input VAT between economic and non-economic activities within the meaning of the Sixth Directive is in the discretion of the Member States which, when exercising that discretion, must have regard to the aims and broad logic of the directive and, on that basis, provide for a method of calculation which objectively reflects the part of the input expenditure actually to be attributed, respectively, to those two types of activity (judgments in Securenta , C‑437/06, EU:C:2008:166, paragraphs 33 and 39, and Portugal Telecom , C‑496/11, EU:C:2012:557, paragraph 42). | 22 That possibility is justified for certain categories of workers who retain close ties, in particular of a personal and vocational nature, with the country where they have settled and habitually reside. It is reasonable that workers who have such links with the State in which they reside should be accorded the best conditions in that State for finding new employment (see, for example, the judgment in Bergemann, cited above, at paragraph 20). | 0 |
3,487 | 44. For disputes relating to employment contracts, Section 5 of Chapter II of Regulation No 44/2001 lays down a series of rules whose objective, as stated in recital 13 in the preamble to that regulation, is to protect the weaker party to the contract by means of rules of jurisdiction that are more favourable to his interests (see, to that effect, Case C-462/06 Glaxosmithkline and Laboratoires Glaxosmithkline [2008] ECR I-3965, paragraph 17). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
3,488 | 109. The Court has also held that Community legislation displays a general tendency to enhance the quality of products within the framework of the common agricultural policy, in order to promote the reputation of those products through inter alia the use of designations of origin which enjoy special protection. In respect of agricultural products, that tendency manifested itself, in particular, in the adoption of Regulation No 2081/92, which, according to its preamble, is intended, inter alia, to meet consumers’ expectations as regards products of quality and an identifiable geographical origin and to enable producers, in conditions of fair competition, to secure higher incomes in return for a genuine effort to improve quality (see, to that effect, Ravil , paragraph 48, and Case C‑108/01 Consorzio del Prosciutto di Parma and Salumficio S. Rita [2003] ECR I‑5121, paragraph 63). | 48. Selon une jurisprudence constante, l’interdiction des mesures d’effet équivalent à des restrictions quantitatives à l’importation édictée à l’article 28 CE vise toute mesure des États membres susceptible d’entraver, directement ou indirectement, actuellement ou potentiellement, le commerce intracommunautaire (voir, en ce sens, arrêts du 15 novembre 2005, Commission/Autriche, C‑320/03, Rec. p. I‑9871, point 67; du 26 octobre 2006, Commission/Grèce, C‑65/05, Rec. p. I‑10341, point 27, et du 5 juin 2008, Commission/Pologne, C‑170/07, point 43). | 0 |
3,489 | 70. In that regard, the Court has held that it is contrary to the first paragraph of Article 90 EC to charge tax on imported used motor vehicles based on a value which is higher than the real value of the vehicle with the result that they are taxed more heavily than similar used cars on the domestic market (see, to that effect, Commission v Denmark , cited above, paragraph 22). It is therefore necessary, in taxing imported used cars, to take account of their actual depreciation. | 33. However, according to settled case-law of the Court, where national legislation falling within an area which has not been harmonised at Community level is applicable without distinction to all persons and undertakings operating in the territory of the Member State concerned, it may, notwithstanding its restrictive effect on the freedom to provide services, be justified where it meets overriding requirements relating to the public interest in so far as that interest is not already safeguarded by the rules to which the service provider is subject in the Member State in which he is established and in so far as it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see Säger , paragraph 15; Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraphs 34 and 35; Case C‑164/99 Portugaia Construções [2002] ECR I‑787, paragraph 19; Case C‑279/00 Commission v Italy , paragraph 33; Case C‑445/03 Commission v Luxembourg [2004] ECR I‑10191, paragraph 21; and Commission v Germany , paragraph 31). | 0 |
3,490 | 11 In that regard, it should be pointed out, first, that the appeal seeks to challenge the classification by the Court of First Instance, in paragraphs 33 and 39 of the contested order, of the letters of 5 November and 31 December 1997 and the inferences which it drew from them as regards calculation of the periods prescribed for lodging a complaint and bringing an action. However, it is settled law that the classification of an act or a measure for legal purposes by the Court of First Instance, in this case the question whether a letter is to be regarded as a complaint within the meaning of Article 90(2) of the Staff Regulations, is a question of law which may be raised in an appeal (see, in that regard, Case C-19/93 P Rendo and Others v Commission [1995] ECR I-3319, paragraph 26). | 49. Therefore, as the Commission emphasises, the remote and uncertain nature of such subsequent taxation cannot justify the restriction on the freedom of establishment resulting from that paragraph of the LIF. | 0 |
3,491 | 37. The discretion conferred on the Member States under Clause 5(1) of the Framework Agreement must also be exercised in compliance with EU law and, in particular, its general principles as well as the other provisions of the Framework Agreement (see, to that effect, Mangold , paragraphs 50 to 54 and 63 to 65, and Angelidaki and Others , paragraph 85). | 51. The term ‘implementation’, used without any further precision in Clause 8(3) of the Framework Agreement, does not refer only to the original transposition of Directive 1999/70 and especially of the Annex thereto containing the Framework Agreement, but must also cover all domestic measures intended to ensure that the objective pursued by the directive may be attained, including those which, after transposition in the strict sense, add to or amend domestic rules previously adopted. | 1 |
3,492 | 37
It follows from the case-law of the Court that a refusal by the authorities of a Member State to recognise the name of a national of that State who exercised his right to move and reside freely in the territory of another Member State, as determined in that second Member State, is likely to hinder the exercise of the right, enshrined in Article 21 TFEU, to move and reside freely in the territories of the Member States. Confusion and inconvenience are liable to arise from the divergence between the two names used for the same person (see, to that effect, judgment of 22 December 2010 in Sayn-Wittgenstein, C‑208/09, EU:C:2010:806, paragraphs 39, 41, 42, 66 and 71). | 38. The provisions of the Directive must for that reason be interpreted in the light of its general scheme and purpose, while respecting the Geneva Convention and the other relevant treaties referred to in point (1) of the first subparagraph of Article 63 EC. Those provisions must also, as is apparent from recital 10 in the preamble to the Directive, be interpreted in a manner which respects the fundamental rights and the principles recognised in particular by the Charter of Fundamental Rights of the European Union ( Salahadin Abdulla and Others , paragraphs 53 and 54).
The first question | 0 |
3,493 | 66. As the Court has already held in those various respects, in Gambelli and Others , paragraphs 7, 8 and 69, in so far as the authorities of a Member State incite and encourage consumers to participate in lotteries, games of chance or betting to the financial benefit of the public purse, the authorities of that State cannot invoke public order concerns relating to the need to reduce opportunities for gambling in order to justify restrictive measures, even if, as in that case, the latter relate exclusively to betting activities. | 39. For the sake of completeness, it must be noted that, as recitals 3, 21 and 24 in the preamble to Regulation No 1782/2003 make clear, environmental protection forms part of the objectives of the single payment scheme. The Court has also held that environmental protection, one of the essential objectives of the European Union, must be regarded as forming part of the common agricultural policy (Case C-428/07 Horvath [2009] ECR I-6355, paragraph 29). Moreover, Article 2 point (1) of Regulation No 796/2004 expressly provides that arable land, and consequently agricultural areas pursuant to Article 2(a) of Regulation No 795/2004, is land maintained in good agricultural and environmental condition within the meaning of Article 5 of Regulation No 1782/2003. | 0 |
3,494 | 16 The Court has consistently held that, in interpreting a provision of Community law, it is necessary to consider not only its wording but also its context and the aims pursued by the legislation of which it forms part (see Case C-30/93 AC-ATEL Electronics Vertriebs v Hauptzollamt Muenchen-Mitte [1994] ECR I-2305, at paragraph 21). | 64
Moreover, that obligation respects the essential content of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter. That obligation does not call into question that right as such. An additional procedural step is merely imposed in order to exercise it. | 0 |
3,495 | 39. It should be recalled that, according to equally settled case-law, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues (see, in particular, Case C‑336/97 Commission v Italy [1999] ECR I-3771, paragraph 19; Case C‑97/00 Commission v France [2001] ECR I-2053, paragraph 9; and Case C‑478/99 Commission v Sweden [2002] ECR I-4147, paragraph 15). | 30 In such special circumstances, the transport is organized by the employer for purposes which are not other than those of the business. The personal benefit derived by employees from such transport appears to be of only secondary importance compared to the needs of the business. | 0 |
3,496 | 22 The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (see, in particular, the order in San Marco v Commission, cited above, paragraph 40). The appraisal by the Court of First Instance of the evidence put before it does not constitute, save where the evidence has been fundamentally misconstrued, a point of law which is subject, as such, to review by the Court of Justice (judgment in Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42).
The first ground of appeal | 42 It should be pointed out that the appraisal by the Court of First Instance of the evidence put before it does not constitute (save where the clear sense of that evidence has been distorted) a point of law which is subject, as such, to review by the Court of Justice. | 1 |
3,497 | 22. Moreover, the interpretation of the terms used in that provision must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT (Case C‑45/01 Dornier [2003] ECR I-12911, paragraph 42). | 59. In the interests of transparency the Commission adopted the Guidelines, in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine. | 0 |
3,498 | 21
In that regard, a preliminary point to note is that this question does not concern the rules relating to the assessment of evidence and the requisite standard of proof which, in the absence of EU rules on the matter, are covered, in principle, by the procedural autonomy of the Member States (see judgment of 21 January 2016 in Eturas and Others, C‑74/14, EU:C:2016:42, paragraphs 29 to 37). Rather, it concerns the constituent elements of the infringement that must be present if an undertaking is to be found liable for a concerted practice. | 43 One of the normal consequences of a divorce is that custody of children is granted to one of the parents, with whom those children will reside. It is possible, for a variety of reasons (in this case as the result of a divorce), that the parent with custody of a child will leave his or her Member State of origin and become established in another Member State in order to work there. In such a case, the residence of the minor child will also be transferred to that other Member State. | 0 |
3,499 | 31. According to settled case-law, in order for a system of taxation of imported second-hand cars which takes into account the actual depreciation of the vehicles on the basis of general criteria to be compatible with Article 90 EC, it must be structured in such a way, making allowance for the reasonable approximations inherent in any system of that type, as to exclude any discriminatory effect ( Gomes Valente , paragraph 26; see also, to that effect, Commission v Greece paragraph 29, and Brzeziński , paragraph 40). | 63. Il convient de rappeler que la Cour a jugé que la réglementation communautaire sur la limitation de l’utilisation des filets maillants dérivants fait partie intégrante de la politique agricole commune (voir arrêt du 24 novembre 1993, Mondiet, C‑405/92, Rec. p. I‑6133, point 24). Par ailleurs, la Cour a également jugé que, en cette matière, le Conseil dispose d’un pouvoir discrétionnaire et que le contrôle juridictionnel de ce pouvoir se limite à vérifier le caractère manifestement inapproprié d’une mesure arrêtée dans ce domaine par rapport à l’objectif que l’institution compétente entend poursuivre (voir arrêts du 16 mars 2006, Emsland-Stärke, C‑94/05, Rec. p. I‑2619, point 54, et du 24 mai 2007, Maatschap Schonewille-Prins, C‑45/05, Rec. p. I‑3997, point 46). | 0 |
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