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4,400 | 27
By contrast, the principle that abusive practices are prohibited, as applied in the sphere of VAT by the case-law stemming from the judgment in Halifax, is not a rule established by a directive, but is based on the settled case-law, cited in paragraphs 68 and 69 of that judgment, that, first, EU law cannot be relied on for abusive or fraudulent ends (see, inter alia, judgments of 12 May 1998, Kefalas and Others, C‑367/96, EU:C:1998:222, paragraph 20; of 23 March 2000, Diamantis, C‑373/97, EU:C:2000:150, paragraph 33; and of 3 March 2005, Fini H, C‑32/03, EU:C:2005:128, paragraph 32) and, secondly, the application of EU legislation cannot be extended to cover abusive practices by economic operators (see to that effect, inter alia, judgments of 11 October 1977, Cremer, 125/76, EU:C:1977:148, paragraph 21; of 3 March 1993, General Milk Products, C‑8/92, EU:C:1993:82, paragraph 21; and of 14 December 2000, Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 51). | 41 Moreover, the interpretation which is to be given to Article 17 of Regulation No 2081/92 certainly does not mean that interested third parties who consider their legitimate interests infringed by the registration cannot obtain a hearing in accordance with the principles relating to judicial protection, as results from the system of Regulation No 2081/92 and is described in paragraphs 57 and 58 below. | 0 |
4,401 | 55. That argument cannot be accepted. It is possible that, in the main proceedings, undertakings established in Member States other than the Italian Republic might have been interested in providing the services concerned (see, to that effect, Commission v Belgium , cited above, paragraph 33). In the absence of advertising and the opening to competition of the award of a public service concession such as that at issue in the main proceedings, there is discrimination, at least potentially, against undertakings of the other Member States which are prevented from making use of the freedom to provide services and of the freedom of establishment provided for by the Treaty (see, to that effect, Coname , cited above, paragraph 17). | 8 It has been consistently held that the appointing authority enjoys a wide discretion regarding promotions and that the review by the Court must therefore be restricted to the question whether the appointing authority exercised its power in a manifestly erroneous manner (see the judgment of the Court of Justice in Case 52/86 Banner v European Parliament [1987] ECR 979, paragraph 9). The approach taken by the Court of First Instance was therefore within the limits of the review required of it. | 0 |
4,402 | 123. Moreover, according to settled case-law, the Commission enjoys a wide discretion in setting the amount of fines and is not bound by assessments made by it in the past (see Dansk Rørindustri and Others v Commission , paragraphs 209 to 213, and Case C-510/06 P Archer Daniels Midland v Commission [2009] ECR I-0000, paragraph 82). It follows that the appellant cannot invoke the Commission’s decision-making policy before the Community judicature. | 47 If the competent authority of dispatch considers that the purpose of the shipment has been incorrectly classified in the notification, the ground for its objection to the shipment must be the classification error itself, without reference to one of the specific provisions of the Regulation setting out the objections which the Member States may raise against a shipment of waste. The effect of that objection is, as with the other objections provided for in the Regulation, to prevent the shipment. | 0 |
4,403 | 58. It covers posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities and thus presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality ( Commission v Belgium , paragraph 10, and Commission v Greece , cited above, paragraph 2). | 2 Article 48(1) to (3) of the EEC Treaty, which is now the EC Treaty, lays down the principle of the free movement of workers and the abolition of all discrimination based on nationality between workers of the Member States. Article 48(4) of the Treaty provides that the provisions of this article are not to apply to employment in the public service. According to the case-law of the Court, Article 48(4) covers posts which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities and thus presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality. On the other hand, the Article 48(4) exception does not cover posts which, whilst coming under the State or other organizations governed by public law, still do not involve any association with tasks belonging to the public service properly so called (judgment in Case 149/79 Commission v Belgium [1980] ECR 3881, paragraphs 10 and 11). | 1 |
4,404 | 62. It has also been held that the fundamental principle of VAT neutrality requires deduction of input tax to be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements. Where the tax authority has the information necessary to establish that the taxable person is, as the recipient of the supplies in question, liable to VAT, it cannot impose, in relation to the right of that taxable person to deduct that tax, additional conditions which may have the effect of rendering that right ineffective for practical purposes (see Ecotrade , paragraphs 63 and 64; Nidera Handelscompagnie , paragraph 42; and Case C-438/09 Dankowski [2010] ECR I-14009, paragraph 35). | 37. Both the decision making the reference and the majority of the observations submitted to the Court refer to the effect which such a system of equivalence may have not only on the working hours of the employees concerned but also on their level of pay. | 0 |
4,405 | 43. In the case in the main proceedings, the price surcharge is imposed on transmitted electricity. In that regard, it must be borne in mind that electricity constitutes a product for the purposes of the provisions of the Treaty (Case C-393/92 Almelo [1994] ECR I-1477, paragraph 28, and Case C-158/94 Commission v Italy [1997] ECR I-5789, paragraph 17). | 80. Consequently, the annulment of a transfer clause such as that laid down in Addendum No 83 could have the result of making it impossible for the body concerned to accomplish the tasks of general economic interest which have been assigned to it under economically acceptable conditions. | 0 |
4,406 | 33. According to the settled case-law of the Court, the principles of legal certainty and protection of legitimate expectations must be respected by the EU institutions, but also by Member States in the exercise of the powers conferred on them by EU directives (see, to that effect, judgments in Gemeente Leusden and Holin Groep , C‑487/01 and C‑7/02, EU:C:2004:263, paragraph 57; ‘Goed Wonen’ , C‑376/02, EU:C:2005:251, paragraph 32; and Elmeka NE , C‑181/04 to C‑183/04, EU:C:2006:563, paragraph 31). | 44. Toutefois, la jurisprudence de l’Union qui porte sur des restrictions à l’exercice des libertés de circulation au sein de l’Union ne saurait être intégralement transposée aux libertés garanties par l’accord EEE, dès lors que l’exercice de ces dernières s’inscrit dans un contexte juridique différent (voir, en ce sens, arrêt du 19 juillet 2012, A, C‑48/11, non encore publié au Recueil, point 34). | 0 |
4,407 | 27 However, in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, and Case C-128/93 Fisscher [1994] ECR I-4583, paragraphs 17 to 24, the Court took the view that the limitation of the effects in time of the Barber judgment concerned only those kinds of discrimination which, owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions, employers and pension schemes could reasonably have considered to be permissible (Case C-435/93 Dietz [1996] ECR I-5223, paragraph 19). | 25 THE ASSIMILATION TO PRODUCTS ORIGINATING WITHIN THE MEMBER STATES OF GOODS IN ' FREE CIRCULATION ' MAY ONLY TAKE FULL EFFECT IF THESE GOODS ARE SUBJECT TO THE SAME CONDITIONS OF IMPORTATION BOTH WITH REGARD TO CUSTOMS AND COMMERCIAL CONSIDERATIONS , IRRESPECTIVE OF THE STATE IN WHICH THEY WERE PUT IN FREE CIRCULATION .
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4,408 | 42. In fact, there are less restrictive measures for the prevention of such residual risks to health, such as, for example, an obligation on the manufacturer or distributor of the product in question, in the event of any uncertainty, to furnish evidence of the accuracy of the facts mentioned on the labelling (Case C-77/97 Unilever [1999] ECR I-431, paragraph 35, and Sterbenz and Haug , paragraph 38). | 65
It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave. | 0 |
4,409 | 37. Furthermore, funds which, without being collective investment undertakings within the meaning of the UCITS Directive, display characteristics identical to theirs and thus carry out the same transactions or, at least, display features that are sufficiently comparable for them to be in competition with such undertakings must also be regarded as special investment funds (see, to that effect, judgments in Abbey National , C‑169/04, EU:C:2006:289, paragraphs 53 to 56; JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies , C‑363/05, EU:C:2007:391, paragraphs 48 to 51; Wheels Common Investment Fund Trustees and Others , C‑424/11, EU:C:2013:144, paragraph 24; and ATP PensionService , C‑464/12, EU:C:2014:139, paragraph 47). | 27 IN THOSE CIRCUMSTANCES THE COMMISSION WAS ENTITLED TO TAKE THE VIEW THAT THERE WAS A REAL DANGER OF A RESUMPTION OF THAT PRACTICE IF GVL ' S OBLIGATION TO TERMINATE IT WERE NOT EXPRESSLY CONFIRMED AND THAT CONSEQUENTLY IT WAS NECESSARY TO CLARIFY THE LEGAL POSITION .
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4,410 | 37 That would be the case where the members of the professional organisation can be characterised as experts who are independent of the economic operators concerned and they are required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the public interest and the interests of undertakings in other sectors or users of the services in question (see, to that effect, Reiff, paragraphs 17 to 19 and 24; Delta Schiffahrts- und Speditionsgesellschaft, paragraphs 16 to 18 and 23; Joined Cases C-140/94 to C-142/94 DIP and Others [1995] ECR I-3257, paragraphs 18 and 19; and Commission v Italy, paragraph 44). | 71. Although tobacco products for oral use, as defined in Article 2 of Directive 2001/37, are not fundamentally different in their composition or indeed their intended use from tobacco products intended to be chewed, they were not in the same situation as those products. The tobacco products for oral use which are the subject of the prohibition laid down in Article 8a of Directive 89/622 and repeated in Article 8 of Directive 2001/37 were new to the markets of the Member States referred to in that measure. That particular situation thus authorised a difference in treatment, and it cannot validly be argued that there was a breach of the principle of non-discrimination.
The principle of freedom to pursue a trade or profession and the right to property | 0 |
4,411 | 30 Therefore, as the judgment in Bilka included no limitation of its effects in time, the direct effect of Article 119 may be relied on, as from 8 April 1976, the date of the judgment in Defrenne, in which that article was first held to have direct effect, in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme (Dietz, paragraph 21). | 35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71. | 0 |
4,412 | 39 The Court has had occasion to state in this respect that although the mere fact that a Member State has created a dominant position by the grant of exclusive rights is not as such incompatible with Article 86, the Treaty none the less requires the Member States not to adopt or maintain in force any measure which might deprive that provision of its effectiveness (see Case C-260/89 ERT [1991] ECR I-2925, paragraph 35, and Corbeau, cited above, paragraph 11). | 111. However, it is clear from the analysis of the first part of the third plea in law invoked before the General Court that that premiss is incorrect, since the Commission was fully entitled to classify the agreements on commissions and cover quotes as agreements on prices and customer‑sharing and such agreements, like agreements on prices, clearly form part of the category of the most serious restrictions of competition. Accordingly, that argument must be rejected as must, on the same ground, Portielje’s claim that the fine imposed on Gosselin should be reduced by the Court in the exercise of its unlimited jurisdiction. | 0 |
4,413 | 60
Last, the situation at issue in the present case is not comparable to the situation in the case that gave rise to the judgment of 13 March 2001, PreussenElektra (C‑379/98, EU:C:2001:160), in which the Court held that the obligation imposed on private electricity supply undertakings to purchase electricity produced from renewable energy sources at fixed minimum prices did not involve any direct or indirect transfer of State resources to undertakings which produced that type of electricity (see judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 59; of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 74; and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, 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 |
4,414 | 55
In the examination of terms in an individual action brought by a consumer, the law designated as applicable as the law of the contract may be different from the law designated as applicable to an action for an injunction as the law of the tort or delict. It must be observed in this respect that the level of protection of consumers still varies from one Member State to another, in accordance with Article 8 of Directive 93/13, so that the assessment of a term may vary, other things being equal, according to the applicable law. | 21. The referring court alone can determine the subject-matter of the questions it proposes to refer to the Court. It is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (see, to that effect, Case C-220/95 Van den Boogaard [1997] ECR I-1147, paragraph 16; Case C‑295/95 Farrell [1997] ECR I-1683, paragraph 11; Case C-159/97 Castelletti [1999] ECR I-1597, paragraph 14; and Case C-111/01 Gantner Electronic [2003] ECR I-4207, paragraph 34). | 0 |
4,415 | 52
It is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed: those concerned must have acted in good faith and there must be a risk of serious difficulties (judgments of 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 41, and of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraph 60). | 69. It follows that the Commission had competence to adopt the 1998 Guidelines, so that the fourth plea is unfounded.
The fifth plea: breach of the principles of non-retroactivity and of the protection of legitimate expectations
Arguments of the parties | 0 |
4,416 | 29. To give companies the option of having their losses taken into account in the Member State in which they are established or in another Member State would seriously undermine a balanced allocation of the power to impose taxes between the Member States, since the tax base would be increased in the first Member State, and reduced in the second, by the amount of the losses transferred (see Marks & Spencer , paragraph 46, Oy AA , paragraph 55, and Lidl Belgium , paragraph 32). | 113. Fifthly, the fact that authentic instruments transferring immovable property rights are registered in the registry of charges over land is not directly relevant to the outcome of the present dispute. That registration, which is moreover the responsibility of the registrar of charges, relates to measures for the publicity of those documents and does not therefore reflect the direct and specific exercise of official authority on the part of the notary. | 0 |
4,417 | 40. The prevention of tax evasion, avoidance and abuse is an objective recognised and encouraged by Directive 2006/112. In that connection, the Court has held that European Union law cannot be relied on by individuals for abusive or fraudulent ends. It is therefore for the national courts and judicial authorities to refuse the right of deduction if it is shown, in the light of objective factors, that that right is being relied on for fraudulent or abusive ends (to that effect, Case C‑285/11 Bonik [2012] ECR, paragraphs 35 to 37). | 39. It follows, moreover, from Case C-157/89 Commission v Italy [1991] ECR I-57, paragraphs 16 and 17, that a situation in which national provisions implementing the Directive do not ensure that the authorities within a State which are responsible for applying them are required to take account of those criteria would be contrary to the principle of legal certainty. | 0 |
4,418 | 36. In that regard, the referring court, citing the judgments of the Court in ERG and Others (C‑378/08, EU:C:2010:126) and ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127), bases its approach on a literal interpretation of the Environmental Code and on the principles of civil liability, which require a causal link between the act and the damage. The existence of such a link is necessary to establish either fault-based or strict liability in respect of the damage concerned. That link is missing if the owner is not the polluter. Consequently, the liability of an owner in those circumstances would be based solely on that person’s status as owner, given that the pollution cannot be attributed to that person either for reasons relating to the individual or on the basis of objective criteria. | 50. The private use by the taxable person of a dwelling in a building which he has treated as forming, in its entirety, part of the assets of his business does not satisfy those conditions. | 0 |
4,419 | 21 Consequently, where questions submitted by national courts concern the interpretation of a provision of Community law, the Court is, in principle, obliged to give a ruling (see Dzodzi and Gmurzynska-Bscher, cited above, paragraphs 35 and 20 respectively). Neither the wording of Article 177 nor the aim of the procedure established by that article indicates that the Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State (see Dzodzi and Gmurzynska-Bscher, cited above, paragraphs 36 and 25 respectively). | 36. As set out in Article 5(3) of Regulation No 1392/2001, the financial penalty for a failure to observe the deadline of 15 May such as that at issue in the main proceedings is, first, set at an amount equal to the levy due for a 0.01% overrun for each calendar day of delay of the reference quantity for direct sales which the purchaser has at his disposal and, second, may not be less than EUR 100 nor more than EUR 100 000. | 0 |
4,420 | 22. As the Court has held, it results from the wording of that provision that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time-limits to which such submission is subject under the provisions of Regulation No 40/94 and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced late ( OHIM v Kaul , paragraph 42, and Case C‑621/11 P New Yorker SHK Jeans v OHIM [2013] ECR I‑0000, paragraph 22). | 64. The legitimacy of such an aim of public interest cannot reasonably be called into question, since employment policy and labour market trends are among the objectives expressly laid down in the first subparagraph of Article 6(1) of Directive 2000/78 and, in accordance with the first indent of the first paragraph of Article 2 EU and Article 2 EC, the promotion of a high level of employment is one of the ends pursued both by the European Union and the European Community. | 0 |
4,421 | 41 In that respect, it is settled case-law that a Member State cannot unilaterally modify the scope of the system of gradually integrating Turkish workers into the host Member State's labour force, so that that State no longer has the power to adopt measures such as to impede the exercise of the rights expressly granted by Decision No 1/80 (see, most recently, Case C-340/97 Nazli v Stadt Nürnberg [2000] ECR I-957, paragraph 30). | Cela vaut également pour les mesures destinées à compenser d’éventuels désavantages auxquels les entreprises installées dans une certaine région d’un État membre sont exposées. En effet, il résulte du texte même de l’article 107, paragraphe 3, sous a) et c), TFUE que des avantages dont la portée est limitée à une partie du territoire de l’État membre soumis à la discipline des aides sont susceptibles de constituer des avantages sélectifs (voir, en ce sens, arrêt du 9 juin 2011, Comitato « Venezia vuole vivere » e.a./Commission, C‑71/09 P, C‑73/09 P et C‑76/09 P, EU:C:2011:368, point 96). | 0 |
4,422 | 38 Also, it is settled case-law that an undertaking having a statutory monopoly over a substantial part of the common market may be regarded as holding a dominant position within the meaning of Article 86 of the Treaty (see Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889, paragraph 14, Case C-18/88 RTT v GB-Inno-BM [1991] ECR I-5941, paragraph 17, and Corbeau, cited above, paragraph 9). | 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 |
4,423 | 44. It is thus clear from the case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the public interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49; Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55; and Test Claimants in the FII Group Litigation , paragraph 46). | 66. Regarding the appellant ' s assertion that the barrier to the re-exportation of vehicles delivered to Italian dealers was not desired by the latter, it is necessary to take account of paragraphs 90 and 91 of the judgment under appeal, to which paragraph 236 thereof refers. In those paragraphs, the Court of First Instance, after rejecting the appellant ' s arguments that the Italian dealers had of their own accord formed the view that it was of no interest to them to sell vehicles outside their contract territory, found that those dealers, faced simultaneously with both restricted supply and the 15% rule ─ which was also agreed within the framework of the dealership contract (see paragraphs 44, 48 and 342 of the judgment under appeal) ─ and being aware that re-exports were regarded with extreme disfavour by Autogerma and the manufacturers, clearly had every interest in selling the limited number of vehicles available entirely or almost entirely to purchasers residing in Italy and that their business conduct was therefore influenced by the manufacturers and Autogerma. | 0 |
4,424 | 25. As an initial point, it should be noted that the exemptions referred to in Article 13 of the Sixth Directive constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (see, inter alia, Case C‑349/96 CPP [1999] ECR I‑973, paragraph 15, and Case C‑269/00 Seeling [2003] ECR I‑4101, paragraph 46). | 25. Given that, according to that provision, rightholders have the exclusive right to authorise or prohibit any act of making available to the public, it must be stated that an act of making protected subject-matter available to the public on a website without the rightholders’ consent infringes copyright and related rights. | 0 |
4,425 | 27
In addition, it is clear from the development of the EU legislation concerning compulsory insurance that the objective of protecting the victims of accidents caused by those vehicles has continuously been pursued and reinforced by the EU legislature (see, to that effect, judgments of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraphs 52 to 55, and of 28 November 2017, Rodrigues de Andrade, C‑514/16, EU:C:2017:908, paragraph 33). | 42. In that regard, the national court drafted the present question with respect to the terms of Article 19 of Regulation No 1408/71. Read in the light of the case‑law of the Court of Justice, in particular the judgments in Case C‑215/90 Twomey [1992] ECR I‑1823, paragraph 18, and Case C‑413/99 Baumbast and R [2002] ECR I‑7091, paragraph 89, that provision guarantees, at the expense of the competent Member State, the right for an employed or self‑employed person as well as for members of that person’s family residing in the territory of another Member State whose condition requires treatment in the territory of the Member State of residence to receive sickness benefits in kind provided by the institution of the latter Member State. | 0 |
4,426 | 51 As regards the limitation of the period of validity of the residence permit held by the Turkish worker's family member in the host Member State, it must be observed that, whilst the Member States retain the power to lay down the conditions under which that family member may enter their territory and reside there until he or she becomes entitled to respond to any offer of employment (see paragraphs 32 and 33 of this judgment), the fact nevertheless remains that the rights conferred by the first paragraph of Article 7 on family members of a Turkish worker are granted by that provision to the persons concerned regardless of the issue by the authorities of the host Member State of a specific administrative document, such as a residence permit (see, by analogy with Article 6 of Decision No 1/80, Bozkurt, cited above, paragraphs 29 and 30). | 30 It follows that the rights conferred under Article 6(1) on Turkish nationals who are already duly integrated into the labour force of a Member State are accorded to such nationals irrespective of whether or not the competent authorities have issued administrative documents which, in this context, can only be declaratory of the existence of those rights and cannot constitute a condition for their existence. | 1 |
4,427 | 42 Under Article 1(u)(ii) of Regulation No 1408/71, family allowances means periodical cash benefits granted exclusively by reference to the number and, where appropriate, the age of members of the family. The Court has already held that the definition of family allowances in Article 1(u)(ii) of Regulation No 1408/71 is the definition to be used in interpreting Article 77 (see Lenoir, paragraph 10). | 23. That harmonisation makes it possible, in principle, to avoid double taxation in relations between Member States (see, to that effect, Case C‑392/05 Alevizos [2007] ECR I‑3505, paragraph 38). | 0 |
4,428 | 24. In those circumstances the Court of Appeal of England and Wales (Civil Division) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) In circumstances such as those that exist in the present case, where a largely exempt trader adopts an asset leasing structure involving an intermediate third party, instead of purchasing assets outright, does the asset leasing structure or any part of it give rise to a tax advantage which is contrary to the purpose of the Sixth Directive within the meaning of paragraph 74 of the [j]udgment in … Halifax [and Others] ?
(2) Having regard to the fact that the Sixth VAT Directive contemplates the leasing of assets by exempt or partly exempt traders, and having regard to the Court’s reference to “normal commercial operations” in paragraphs 69 and 80 of the [j]udgment in Halifax [and Others] and 27 of [the judgment in] Ampliscientifica [and Amplifin] and also to the absence of any such reference in the [j]udgment in … Part Service , is it an abusive practice for an exempt, or partly exempt, trader to do so even though in the context of its normal commercial operations it does not engage in leasing transactions?
(3) If the answer to question 2 is yes:
(a) what is the relevance of “normal commercial operations” in the context of paragraphs 74 and 75 of the [j]udgment in Halifax [and Others] : is it relevant to paragraph 74 or to paragraph 75 or to both;
(b) is the reference to “normal commercial operations” a reference to:
(1) operations in which the taxpayer in question typically engages;
(2) operations in which two or more parties engage at arm’s length;
(3) operations which are commercially viable;
(4) operations which create the commercial burdens and risks typically associated with related commercial benefits;
(5) operations that are not artificial in that they have commercial substance;
(6) any other type or category of operations?
(4) If the asset leasing structure or any part of it is found to constitute an abusive practice, what is the appropriate redefinition? In particular, should the national court or the tax collecting authority:
(a) ignore the existence of the intermediate third party and direct that VAT be paid on an open market value of the rentals;
(b) redefine the leasing structure as an outright purchase; or
(c) redefine the transactions in any other way which either the [national] court or the tax collecting authority considers to be an appropriate means by which to re-establish the situation that would have prevailed in the absence of the transactions constituting the abusive practice?’
The questions referred
The first and second questions | 27. In that regard, consumer protection may constitute a justification for the prohibition at issue in the main proceedings, on the twofold condition that the prohibition is appropriate to ensure the attainment of the objective pursued and does not go beyond what is necessary to attain that objective. | 0 |
4,429 | 44 Where the Member State or the institution in question has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (see, to that effect, Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 28). | 54. Il convient de rappeler que, selon une jurisprudence constante, un pourvoi qui, sans même comporter une argumentation visant spécifiquement à identifier l’erreur de droit dont serait entaché l’arrêt attaqué, se limite à répéter ou à reproduire les moyens et les arguments qui ont déjà été présentés devant le Tribunal, constitue en réalité une demande visant à obtenir un simple réexamen de la requête présentée devant le Tribunal, ce qui échappe à la compétence de la Cour (voir, en ce sens, arrêt Bergaderm et Goupil/Commission, 352/98 P, EU:C:2000:361, points 34 et 35, ainsi que ordonnance I Marchi Italiani/OHMI, C‑381/12 P, EU:C:2013:371, point 46). | 0 |
4,430 | 16 Lastly, it does not matter, for the purposes of the Treaty, whether a charge is treated as a general charge or two distinct charges, one on exports and the other on imports. As it is imposed on all goods crossing the frontier, the charge in question hampers the interpenetration sought by the Treaty and thus has an effect on the free circulation of goods equivalent to that of a customs duty (Commission v Italy, paragraph 14). | 15 Consequently, in the present case it is necessary to analyse the effects of a beer supply agreement, taken together with other contracts of the same type, on the opportunities of national competitors or those from other Member States, to gain access to the market for beer consumption or to increase their market share and, accordingly, the effects on the range of products offered to consumers. | 0 |
4,431 | 32. In that regard, it should be noted, as the European Commission has correctly pointed out, that that criterion must be interpreted autonomously, in the sense that the meaning and scope of that referential rule cannot be established on the basis of the law of the court seised, but must be established according to consistent and independent criteria in order to guarantee the full effectiveness of the Rome Convention in view of the objectives which it pursues (see, by way of analogy, Case C‑125/92 Mulox IBC [1993] ECR I‑4075, paragraphs 10 and 16). | 4. Selon l’article 3, paragraphe 1, dudit règlement, les aides individuelles, accordées en dehors de tout régime, qui remplissent toutes les conditions de ce même règlement sont compatibles avec le marché commun au sens de l’article 107, paragraphe 3, TFUE et sont exemptées de l’obligation de notification prévue à l’article 108, paragraphe 3, TFUE. | 0 |
4,432 | 51. Furthermore, although the first indent of the first paragraph of Article 7 of Decision No 1/80 requires, as a rule, that the member of the family of a Turkish worker must actually reside with that worker for the three years during which he fails himself to satisfy the conditions for access to the labour market in the host Member State (see Case C-351/95 Kadiman [1997] ECR I-2133, paragraph 33, 37, 40, 41 and 44; Case C-329/97 Ergat [2000] ECR I-1487, paragraphs 36 and 37; Case C-65/98 Eyüp [2000] ECR I-4747, paragraphs 28 and 29; and Cetinkaya , paragraph 30), the fact remains that Member States are no longer entitled to attach conditions to the residence of a member of a Turkish worker’s family after that three-year period; this must a fortiori be the case for a Turkish migrant who fulfils the conditions laid down in the second indent of the first paragraph of Article 7 (see Ergat , paragraphs 37 to 39; Cetinkaya , paragraph 30; and Aydinli , paragraph 24). | 17. Il résulte d’une jurisprudence constante que, aux termes de l’article 288, troisième alinéa, TFUE, les directives lient tout État membre destinataire quant au résultat à atteindre et que cette obligation implique le respect des délais fixés par les directives (voir, notamment, arrêt Commission/Belgique, C‑230/00, EU:C:2001:341, point 17 et jurisprudence citée). | 0 |
4,433 | 68. With regard, first, to the applicability of the rules set out in Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94, it is settled case-law that, even though those provisions make express reference only to the situation in which use is made of a sign which is identical with, or similar to, a trade mark with a reputation in relation to goods or services which are not similar to those for which the trade mark is registered, the protection provided for there applies, a fortiori , also in relation to use of a sign which is identical with, or similar to, a trade mark with a reputation in relation to goods or services which are identical with or similar to those for which the mark is registered (see, inter alia, Case C‑292/00 Davidoff [2003] ECR I-389, paragraph 30; Case C‑408/01 Adidas-Salomon and Adidas Benelux [2003] ECR I-12537, paragraphs 18 to 22, and Google France and Google , paragraph 48). | 73. It follows that fixing an appreciability ( de minimis ) threshold for the purposes of determining whether there is an abuse of a dominant position is not justified. That anti-competitive practice is, by its very nature, liable to give rise to not insignificant restrictions of competition, or even of eliminating competition on the market on which the undertaking concerned operates. | 0 |
4,434 | 14. Nevertheless, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia , Bosman , paragraph 61; and TNT Traco , paragraph 31). | 44. D’autre part, l’article 4 du règlement n o 1049/2001, en introduisant un régime d’exceptions au droit d’accès aux documents des institutions conféré au public par l’article 1 er de ce règlement, autorise les institutions à refuser l’accès à un document afin d’éviter que la divulgation de ce dernier ne porte atteinte à l’un des intérêts protégés par cet article 4 (voir, en ce sens, arrêts du 1 er février 2007, Sison/Conseil, C‑266/05 P, Rec. p. I‑1233, point 62, ainsi que du 17 octobre 2013, Conseil/Access Info Europe, C‑280/11 P, point 29 et jurisprudence citée). | 0 |
4,435 | 54 Such would be the case if a Member State were to require or favour the adoption of agreements, decisions or concerted practices contrary to Article 85 or to reinforce their effects, or to deprive its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (see Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16; Reiff, paragraph 14; and Delta Schiffahrts- und Speditionsgesellschaft, paragraph 14). | 45. Lastly, it must be stated that that conclusion is not called into question by the principle of fiscal neutrality. As the Advocate General stated at point 60 of her Opinion, that principle cannot extend the scope of an exemption in the absence of clear wording to that effect. That principle is not a rule of primary law which can condition the validity of an exemption, but a principle of interpretation, to be applied concurrently with the principle of strict interpretation of exemptions. | 0 |
4,436 | 22. In answer to the objection raised by the Commission, it must be recalled that the interest in bringing proceedings is a condition of admissibility which must continue up to the Court’s decision in the case (see, Joined Cases C-373/06 P, C‑379/06 P and C-382/06 P Flaherty and Others v Commission [2008] ECR I‑2649, paragraph 25 and the case-law cited). | 45. Similarly, recital 34 in the preamble to Directive 2001/14 states that investment in railway infrastructure is desirable and infrastructure charging schemes should provide incentives for infrastructure managers to make appropriate investments where they are economically attractive. There can be no incentive for managers to invest in infrastructure unless the charging scheme affords them a certain degree of flexibility. | 0 |
4,437 | 21 In that connection, it should be pointed out that, according to settled case-law, in the specific context of the preparation of decisions on the clearance of accounts, the reasons for a decision must be considered to be adequate if the Member State to which the decision is addressed was closely involved in the process by which the decision came about and is therefore aware of the reasons for which the Commission considered that it was not required to charge the sum in dispute to the EAGGF (see Case C-22/89 Netherlands v Commission [1990] ECR I-4799, paragraph 18 and Case C-27/94 Netherlands v Commission [1998] ECR I-5581, paragraph 36). | 39. Preventive monitoring of this kind would thus require active observation of all electronic communications conducted on the network of the ISP concerned and, consequently, would encompass all information to be transmitted and all customers using that network. | 0 |
4,438 | 65. Thus, a measure which constitutes an exception to the application of the general tax system may be justified if the Member State concerned can show that that measure results directly from the basic or guiding principles of its tax system (see Portugal v Commission , paragraph 81). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
4,439 | 38
It is true that the increase in the use of renewable energy sources for the production of electricity constitutes one of the important components of the package of measures needed in order to reduce greenhouse gas emissions, which are amongst the main causes of climate change that the European Union and its Member States have pledged to combat, and to comply, in particular, with the Kyoto Protocol to the United Nations Framework Convention on Climate Change. Such an increase is also designed to protect the health and life of humans, animals and plants, which are among the public interest grounds listed in Article 36 TFEU. Moreover, it is also clear from Article 194(1)(c) TFEU that the development of renewable energy is one of the objectives that must guide EU energy policy (judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraphs 78 to 81). | 62. Accordingly, since it classifies machines capable of performing printing, electronic scanning and reproduction operations under subheading 9009 12 00 by application of General Rules 1, 3(c) and 6, of Note 5(E) to Chapter 84 of the CN and of the wording of heading and subheading 9009 and 9009 12 00, on the ground that none of the functions corresponding to those operations can be regarded as a giving those machines their essential character, without, in principle, requiring all machines having those three functions to be classified as photocopiers, Regulation No 400/2006 is valid. | 0 |
4,440 | 60. In accordance with the Court’s case‑law, a Member State infringes the prohibitions laid down by those two provisions where the undertaking in question, merely by exercising the special or exclusive rights conferred on it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses (Joined Cases C‑180/98 to C‑184/98 Pavlov and Others [2000] ECR I‑6451, paragraph 127; Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 39; and Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 23). | 54 However, if the obligation to pay the customs debt rests on the importer, a third party cannot be enriched solely because the importer has paid that debt. Nevertheless, that payment may give rise to an obligation on the part of the exporter or another person towards the importer, legally distinct from the importer's customs obligation, under which the latter may recover the amount which he has paid to the customs authorities. | 0 |
4,441 | 35. Thus, it is for the referring court to ascertain, on that basis, whether it can find such an interpretation, taking into consideration, in particular, firstly, the elements referred to in paragraphs 28 and 29 of the present judgment (see, by analogy, judgment in Dominguez , C‑282/10, EU:C:2012:33, paragraph 31) and, secondly, the case-law of the Court referred to in paragraph 26 of the present judgment, from which it is apparent that, in order to draw all the consequences of a breach of the third sentence of Article 108(3) TFEU, the national courts may, as necessary, order provisional measures. In the present case, accordingly, it is for the referring court to examine the possibility of ordering a measure such as the temporary suspension of the contracts at issue until the adoption of the Commission decision closing the procedure, which would enable that court to satisfy its obligations under the third sentence of Article 108(3) TFEU without actually ruling on the validity of the contracts at issue. | 59 In the present case it is sufficient to note that, notwithstanding the information provided by the United Kingdom in the annex to its rejoinder, that Member State instituted proceedings against the persons responsible for infringements of Community legislation in only a few cases, although a significant number of cases of overfishing were recorded for the years in question. In those circumstances, the argument put forward by the United Kingdom concerning the need for the Commission to provide specific evidence cannot, therefore, be upheld (see, to that effect, Case C-52/95 Commission v France, cited above, paragraph 36). | 0 |
4,442 | 16 Parker and its subsidiaries thus form a single economic unit within which the subsidiaries do not enjoy real autonomy in determining their course of action in the market, but carry out the instructions issued to them by the parent company controlling them (Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 133 and 134; Case 15/74 Centrafarm v Sterling Drug [1974] ECR 1147, paragraph 41; Case 16/74 Centrafarm v Winthrop [1974] ECR 1183, paragraph 32; Case 30/87 Bodson v Pompes Funèbres [1988] ECR 2479, paragraph 19; and Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekaempfung Unlauteren Wettbewerbs [1989] ECR 803, paragraph 35). | 29. Such a prohibition can only be justified if it is necessary on one of the grounds of public interest set out in Article 30 EC, such as the protection of health and life of humans, or in order to meet imperative requirements relating, inter alia , to consumer protection. | 0 |
4,443 | 66
That said, where it is clear, without any need for the parties to adduce additional evidence in that regard, that the General Court infringed, in a sufficiently serious manner, its obligation to adjudicate on the case within a reasonable time, the Court of Justice may note that fact (see, inter alia, judgments of 9 October 2014 in ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 59, and of 12 November 2014 in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 20). | 13 THE METHOD PROVIDES FOR THE ANNUAL ADJUSTMENT OF REMUNERATION TO BE MADE A POSTERIORI AND TO TAKE EFFECT RETROACTIVELY ON 1 JULY OF THE YEAR IN WHICH THE END OF THE REFERENCE PERIOD USED FOR THE REVIEW OF THE LEVEL OF REMUNERATION FALLS , THAT PERIOD CORRESPONDING TO THE 12 MONTHS PRECEDING 1 JULY OF THE YEAR IN WHICH THE REVIEW IS CARRIED OUT .
| 0 |
4,444 | 48. According to settled case-law, the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the Court to carry out its review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (Case C‑88/03 Portugal v Commission [2006] ECR I‑7115, paragraph 88 and the case-law cited). | 37. As a branch, FCE IT does not have any endowment capital. Consequently, the risk associated with the economic activity lies wholly with the FCE Bank. Consequently, FCE IT is dependent upon that company and, with it, constitutes a single taxable person. | 0 |
4,445 | 38
That assessment cannot be called in question by the fact that the legislation, pursuant to Article 10(2) of the Mergers Directive, gives relief for the tax that, but for the provisions of that directive, would have been charged on such capital gains in the Member State in which the non-resident permanent establishment is situated, given that the disproportionality of that legislation does not derive from the amount of tax due but from the fact that it makes no provision for the taxpayer to defer the time at which it is collected (see, to that effect, judgment of 14 September 2017, Trustees of the P Panayi Accumulation & Maintenance Settlements, C‑646/15, EU:C:2017:682, paragraph 60). | 37. The expression ‘investment in … the … verification … of the contents’ of a database must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. The expression ‘investment in … the … presentation of the contents’ of the database concerns, for its part, the resources used for the purpose of giving the database its function of processing information, that is to say those used for the systematic or methodical arrangement of the materials contained in that database and the organisation of their individual accessibility. | 0 |
4,446 | 39. In that regard, it must be recalled that the Court has already held that standardised and immediate measures taken pursuant to Regulation No 261/2004 do not themselves prevent the passengers concerned, should the same failure of the air carrier to fulfil its contractual obligations also cause them damage conferring entitlement to compensation, from being able to bring, in addition, actions to redress that damage under the conditions laid down by the Montreal Convention (see, to that effect, Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 47). | 26. It is important to emphasise in that regard that, as a general rule and in accordance with Article 2(1) of the Sixth Directive, the supply of services effected for consideration is to be subject to VAT. | 0 |
4,447 | 34. Quant au risque de troubles graves, il y a lieu de rappeler que l’existence de conséquences financières découlant pour un État membre d’un arrêt rendu à titre préjudiciel ne justifie pas, par elle-même, la limitation des effets de cet arrêt dans le temps (arrêts du 20 septembre 2001, Grzelczyk, C-184/99, Rec. p. I-6193, point 52; du 15 mars 2005, Bidar, C-209/03, Rec. p. I-2119, point 68, et Brzeziński, précité, point 58). Il incombe à l’État membre sollicitant une telle limitation de produire, devant la Cour, des données chiffrées établissant le risque de répercussions économiques graves (arrêts précités Brzeziński, points 59 et 60, ainsi que Kalinchev, points 54 et 55). | 29. It follows from the foregoing considerations that the pleas of inadmissibility must be rejected.
Substance | 0 |
4,448 | 84. The Court has thus repeatedly held that national legislation which makes the provision of certain services on national territory, by an undertaking established in another Member State, subject to the issue of an administrative authorisation constitutes a restriction of the freedom to provide services (see, in particular, Säger , paragraph 14; Case C‑43/93 Vander Elst [1994] ECR I‑3803, paragraph 15; Case C‑355/98 Commission v Belgium [2000] ECR I‑1221, paragraph 35; and Case C‑171/02 Commission v Portugal [2004] ECR I‑5645, paragraph 60). | 56. Ainsi qu’il résulte du point 41 du présent arrêt, il découle des directives 89/665 et 92/13 qu’un délai raisonnable doit s’écouler entre le moment où la décision d’attribution du marché est notifiée aux candidats et soumissionnaires évincés et la conclusion du contrat, afin de permettre à ces derniers d’introduire une demande de mesures provisoires avant la conclusion du contrat. | 0 |
4,449 | 36
In that connection, it is also clear from settled case-law that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment (see, in particular, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 29; of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51; and of 9 December 2014, Schönberger v Parliament, C‑261/13 P, EU:C:2014:2423, paragraph 13). | 32. Recital 4 in the preamble to the Directive states that a fully open market must enable consumers freely to choose their suppliers and suppliers freely to deliver to their customers. | 0 |
4,450 | 42. The scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it covers and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. Such persons can therefore be expected to take special care in evaluating the risk that such an activity entails (judgment in Dansk Rørindustri and Othe rs v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 219 and the case-law cited). | 65. As regards the application of procedures intended to prevent or mitigate the imposition of a series of charges to tax or economic double taxation, the position of a Member State in which both the companies making the distribution and the ultimate shareholders are resident is thus not comparable to that of a Member State in which a company is resident which pays dividends to a non-resident company, which pays them, in turn, to its ultimate shareholders, in that the second State acts, in principle, only as the State in which the distributed profits are derived. | 0 |
4,451 | 46. As regards the relevant assessment criteria, the Court has held that, where European Union law lacks precision, it is for the Member States, when they transpose a directive, to ensure that it is fully effective and they retain a broad discretion as to the choice of methods (see, to this effect, inter alia, Edwards and Pallikaropoulos , paragraph 37 and the case-law cited). It follows that, as regards the methods likely to achieve the objective of ensuring effective judicial protection without excessive cost in the field of environmental law, account must be taken of all the relevant provisions of national law and, in particular, of a national legal aid scheme as well as of a costs protection regime such as that applied in the United Kingdom (see, to this effect, Edwards and Pallikaropoulos , paragraph 38). | 41. It is clear from paragraphs 75 to 78 of Commission v Denmark that a Member State may levy a registration tax on a company vehicle made available to a worker residing in that State by a company established in another Member State when it is intended that that vehicle should be used essentially in the first Member State on a permanent basis or where it is in fact used in that manner. | 0 |
4,452 | 13 As regards Neotype' s interest in contesting the provisional regulation, it should be stated that, as the amounts secured as provisional anti-dumping duties were collected, in accordance with Article 2(1 ) of the definitive regulation, at the rate of duty definitively imposed, Neotype may place no reliance on any legal effect arising out of the provisional regulation ( see the judgments in Case 56/85 Brother v Commission [1988] ECR 5655, paragraph 6, and in Joined Cases 294/86 and 77/87 Technointorg v Commission and Council [1988] ECR 6077, paragraph 12 ). | 66IT WAS THEREFORE WITH GOOD REASON THAT , IN ANNEX VI TO THE HAGUE RESOLUTION , AFTER STATING THAT IN PRINCIPLE THE MEMBER STATES WOULD NOT TAKE ANY UNILATERAL MEASURES PENDING THE IMPLEMENTATION OF THE COMMUNITY MEASURES , THE COUNCIL RECOGNIZED THAT SUCH MEASURES COULD BE ADOPTED , ON AN INTERIM BASIS , IF NO COMMUNITY MEASURES HAD BEEN ADOPTED IN TIME .
| 0 |
4,453 | 12 All three point out that the function which the Bezirksgericht performs, when acting as the tribunal responsible for keeping the land register, is of a similar nature to that which the Italian courts perform when they determine, in the course of a process of giurisdizione volontaria, an application for approval of a company's statutes for the purposes of its registration on the register, a function which the Court held lacked judicial character in Case C-111/94 Job Centre [1995] ECR I-3361, paragraphs 9 to 11. | 43. Ce n’est que si tous les autres composants de la marque sont négligeables que l’appréciation de la similitude pourra se faire sur la seule base de l’élément dominant (arrêts OHMI/Shaker, EU:C:2007:333, point 42, et Nestlé/OHMI, C‑193/06 P, EU:C:2007:539, point 42). | 0 |
4,454 | 48. The Court has held that, if a field is not governed by a directive by reason of the incomplete harmonisation for which it provides, Member States remain, in principle, responsible for the provision of rules in that regard, provided, however, that those rules are not liable seriously to compromise achievement of the result prescribed by the directive in question ( Granarolo , paragraph 45). | 45. Although the Member States are generally responsible for fixing the use-by date of products covered by Directive 92/46, they must refrain from taking any measures liable seriously to compromise achievement of the result prescribed by the directive. | 1 |
4,455 | 69. To that end, Regulation No 1049/2001 is intended, as is apparent from recital 4 in its preamble and from Article 1, to give the fullest possible effect to the right of public access to documents of the institutions (see Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 61; Case C‑64/05 P Sweden v Commission [2007] ECR I‑11389, paragraph 53; Sweden and Turco v Council , paragraph 33; and Case C‑139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I‑0000, paragraph 51). | 31. As the Court has held on numerous occasions, it follows, inter alia, that EU legislation must be certain and its application foreseeable by those who are subject to it. That requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which those rules impose on them (judgment in Ireland v Commission , 325/85, EU:C:1987:546, paragraph 18). | 0 |
4,456 | 19. It follows from the case-law of the Court that a reply in favour of the first approach outlined in the question referred for a preliminary ruling may be given only if there is a direct link between the service rendered and the consideration received, the sums paid constituting genuine consideration for an identifiable service supplied in the context of a legal relationship in which performance is reciprocal (see, to that effect, Case 102/86 Apple and Pear Development Council [1988] ECR 1443, paragraphs 11, 12 and 16; Case C‑16/93 Tolsma [1994] ECR I‑743, paragraph 14; Case C‑174/00 Kennemer Golf [2002] ECR I‑3293, paragraph 39; and Case C‑210/04 FCE Bank [2006] ECR I‑2803, paragraph 34). | 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). | 0 |
4,457 | 123. It is also apparent from the case-law that the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation where the Community authority has, by giving him precise assurances, caused him to entertain expectations which are justified (Case 111/86 Delauche v Commission [1987] ECR 5345, paragraph 24; Case C‑82/98 P Kögler v Court of Justice [2000] ECR I‑3855, paragraph 33; Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 147). The assurances given must, in addition, be in accordance with the applicable rules (see, to that effect, Case 228/84 Pauvert v Court of Auditors [1985] ECR 1969, paragraphs 14 and 15; Case 162/84 Vlachou v Court of Auditors [1986] ECR 481, paragraph 6). | 23. In that regard, the Court has consistently held that Directive 85/374 seeks to achieve, in the matters regulated by it, complete harmonisation of the laws, regulations and administrative provisions of the Member States (judgment in Dutrueux and caisse primaire d’assurance maladie du Jura , C‑495/10, EU:C:2011:869, paragraph 20 and the case-law cited). | 0 |
4,458 | 53. As the Court has also held, since the aim of the Directive is to promote the balanced participation of employers and workers in activities related to protection against and prevention of occupational risks, it is therefore by giving precedence to the organisation of such activities within the undertaking that the effectiveness of the Directive can be ensured to the greatest possible extent. Allowing employers to choose between the organisation of such activities within the undertaking or the enlistment of competent external services does not contribute to ensuring the effectiveness of the Directive but constitutes a failure to fulfil the obligation to ensure its full applicability (see Commission v Netherlands , cited above, paragraphs 54 and 55). | 40. In such circumstances, the questions referred must be declared inadmissible to the extent that they seek an interpretation of those provisions (see, by analogy, inter alia, Duomo Gpa and Others , paragraph 24). | 0 |
4,459 | 66. La Commission propose l’imposition tant d’une astreinte que d’une somme forfaitaire pour les mêmes raisons que celles exposées dans l’arrêt Commission/Italie (C‑496/09, EU:C:2011:740, points 42 à 45 et 82 à 92). | 29 Under that provision, freedom of movement for workers within the Community entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. | 0 |
4,460 | 16 As for the argument relied on by the Staff Committee, suffice it to note that in Enderby the Court did not rule on whether the functions performed by members of the different professions in question were of equal value. It merely answered the questions referred to it on the basis of the assumption that those functions were of equal value, without concerning itself with the validity of that assumption (Enderby, paragraphs 11 and 12). | 29. The period of limitation for an action for liability of the Community cannot begin until all the requirements governing an obligation to provide compensation for damage are satisfied and, in particular, until the damage to be made good has materialised. Therefore, where the liability of the Community has its origin in a legislative measure, that period of limitation does not begin until the damaging effects of that measure have arisen. | 0 |
4,461 | 36. In addition to the existence of a risk of serious economic repercussions due in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force, an additional factor to take into account to justify the limitation of the temporal effects of the judgment is the existence of significant objective uncertainty regarding the implications of Community provisions (see, to that effect, Bidar , paragraph 69, and Richards , paragraph 42). | 87
It follows, as the Advocate General observed in point 84 of his Opinion, that, under the system governing judicial review proceedings before the EU courts, it is the parties that take the initiative in pursuing the case and delimiting its subject matter, inter alia by identifying in the form of order sought the act, or part of the act, which they intend to submit to judicial review. | 0 |
4,462 | 69. In those circumstances, on the same grounds as those given in paragraphs 88 to 107 of the judgment in Specht and Others (C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005), the answer to Question 4 is as follows:
– in circumstances such as those of the case before the referring court, EU law does not require judges who have been discriminated against to be retrospectively granted an amount equal to the difference between the pay actually received and that corresponding to the highest step in their grade;
– it is for the referring court to ascertain whether all the conditions laid down by the case-law of the Court are met for the Federal Republic of Germany to have incurred liability under EU law.
Question 5 | 46. Although the Directive allows the Member States a certain latitude as regards the precise method of implementing that provision, the fact remains that the Directive's objectives, in particular that of ensuring that for each farm or livestock unit the amount of livestock manure applied to the land each year, including by the animals themselves, does not exceed a specified amount per hectare, must be complied with by the Member States. | 0 |
4,463 | 20 It is indeed correct that, in accordance with settled case-law, a directive may not of itself impose obligations on a private individual and may not therefore be relied on as such against such a person (see, inter alia, Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 20, and Case C-192/94 El Corte Inglés v Blázquez Rivero [1996] ECR I-1281, paragraph 15). | 90
In those circumstances, by that requirement to comply with as short as possible an exceedance period, that provision lays down an obligation which does not correspond to one arising under the earlier EU legislation, as the Commission states itself in its application. | 0 |
4,464 | 51. Il ressort de la jurisprudence qu’une prestation peut être considérée comme accessoire à une prestation principale lorsqu’elle constitue non une fin en soi, mais le moyen de bénéficier dans les meilleures conditions du service principal (voir, en ce sens, arrêts Madgett et Baldwin, précité, point 24; du 25 février 1999, CPP, C‑349/96, Rec. p. I‑973, point 30; du 6 novembre 2003, Dornier, C‑45/01, Rec. p. I‑12911, point 34, ainsi que Horizon College, précité, point 29). | 25 Furthermore, it is apparent from Paragraphs 1(1) and 2(1) of the StDrG that the ÖS was established for the specific purpose of meeting those needs in the general interest. In that respect, it is immaterial that such an entity is free to carry out other activities in addition to that task, such as the production of other printed matter and the publication and distribution of books. The fact, raised by the Austrian Government in its written observations, that meeting needs in the general interest constitutes only a relatively small proportion of the activities actually pursued by the ÖS is also irrelevant, provided that it continues to attend to the needs which it is specifically required to meet. | 0 |
4,465 | 82
The Court has consistently held that, in order to assess whether a Member State has observed the principle of proportionality in the field of public health, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the FEU Treaty and that it is for the Member States to determine the degree of protection which they wish to afford to public health and the way in which that degree of protection is to be achieved. Since the degree of protection may vary from one Member State to another, Member States must be allowed a measure of discretion (see, inter alia, judgments of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 51; of 19 May 2009, Apothekerkammer des Saarlandes and Others,C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 19; of 21 June 2012, Susisalo and Others, C‑84/11, EU:C:2012:374, paragraph 28; of 5 December 2013, Venturini and Others, C‑159/12 to C‑161/12, EU:C:2013:791, paragraph 59; and of 19 October 2016, Deutsche Parkinson Vereinigung, C‑148/15, EU:C:2016:776, paragraph 30). | 41. Il ressort, en effet, d’une jurisprudence établie qu’un État membre ne saurait invoquer l’illégalité d’une décision comme moyen de défense à l’encontre d’un recours en manquement fondé sur l’inexécution de cette décision, exception faite de l’hypothèse où celle-ci doit être considérée comme inexistante (voir, en ce sens, arrêt du 1 er juin 2006, Commission/Italie, C‑207/05, points 40 à 43 et jurisprudence citée). | 0 |
4,466 | 60. According to the Court’s case-law, health care establishments and infrastructure, pharmacies and opticians’ shops may be subject to planning, so as to ensure the provision of public health care which is adapted to the needs of the population, covers the entire territory and takes account of geographically isolated or otherwise disadvantaged regions (see, to that effect, judgments in Hartlauer , C‑169/07, EU:C:2009:141, paragraphs 51 and 52; Blanco Pérez and Chao Gómez , C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 70, and Ottica New Line di Accardi Vincenzo , C‑539/11, EU:C:2013:591, paragraphs 36 and 37). | 22. In order to determine the existence of such dependence, the host Member State must assess whether, having regard to his financial and social conditions, the direct descendant, who is 21 years old or older, of a Union citizen, is not in a position to support himself. The need for material support must exist in the State of origin of that descendant or the State whence he came at the time when he applies to join that citizen (see, to that effect, Jia , paragraph 37). | 0 |
4,467 | 43
With regard, inter alia, to the ground for legitimation provided for in Article 7(e) of Directive 95/46, it should be noted that the Court of Justice has already held that the activity of a public authority consisting in the storing, in a database, of data which undertakings are obliged to report on the basis of statutory obligations, permitting interested persons to search for that data and providing them with print-outs thereof, falls within the exercise of public powers (see judgment of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraphs 40 and 41). Moreover, such an activity also constitutes a task carried out in the public interest within the meaning of that provision. | 30. If the plant protection product concerned must be regarded as having already been authorised in the Member State of importation, the competent authorities of that State must allow the product concerned to have the benefit of the marketing authorisation issued to the plant protection product already on the market, unless that is precluded by considerations relating to the effective protection of human and animal health and of the environment (see, to that effect, Smith & Nephew and Primecrown , paragraphs 29 and 32, and British Agrochemicals Association , paragraph 36). Accordingly, a plant protection product introduced into the territory of a Member State as a parallel import cannot, automatically or absolutely and unconditionally, have the benefit of a marketing authorisation issued to a plant protection product already on the market of that State. | 0 |
4,468 | 50. None the less, it should also be recalled that, in accordance with settled case-law, the Court may refuse to rule on a question referred for a preliminary ruling by a national court where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgment in Érsekcsanádi Mezőgazdasági , C‑56/13, EU:C:2014:352, paragraph 36 and the case-law cited). | 34 Now, the Trust manages the assets it holds, consisting in part of its shareholding in the Foundation and of other financial instruments. Its investment activities, as described above, consist essentially in the acquisition and sale of shares and other securities with a view to maximizing the dividends and capital yields which are destined for the promotion of medical research. | 0 |
4,469 | 30
Further, in accordance with settled case-law, provisions of national law which merely lay down conditions governing the establishment or provision of services by undertakings, such as provisions making the exercise of a business activity subject to prior authorisation, do not constitute technical regulations within the meaning of Article 1(11) of Directive 98/34 (see, to that effect, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 76 and the case-law cited). | 42 Contrary to the Commission's submissions, it is the mere failure to authenticate an act which constitutes the infringement of an essential procedural requirement and it is not necessary also to establish that the act is vitiated by some other defect or that the lack of authentication resulted in harm to the person relying on it. | 0 |
4,470 | 41. In that regard, it is settled case‑law that discrimination can arise not only through the application of different rules to comparable situations, but also through the application of the same rule to different situations (see Schumacker , paragraph 30; Case C‑311/97 Royal Bank of Scotland [1999] ECR I‑2651, paragraph 26; and Kerckhaert and Morres , paragraph 19). | 41. In that regard, it must be held that the meaning of point 1 is not the same in the various official languages of the European Union. | 0 |
4,471 | 57. In accordance with settled case-law, in the context of consideration of the likelihood of confusion, assessment of the similarity between two marks means more than taking just one component of a composite mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite mark may not, in certain circumstances, be dominated by one or more of its components (see Medion , paragraph 29, and OHIM v Shaker , paragraph 41). Nevertheless, it is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (see OHIM v Shaker , paragraph 42). | 25. In the light of those considerations and the purpose of that directive which, as evidenced by the second recital in the preamble thereto, seeks inter alia to promote greater protection for workers in the event of collective redundancies, the Court has interpreted the concept of ‘establishment’ in Directive 98/59, in particular in Article 1(1)(a), as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties ( Rockfon , paragraphs 31 and 32, and case-law cited). | 0 |
4,472 | 30
According to the Portuguese Republic, a possible restriction on freedom of movement resulting from Article 10 of the CIRS is justified, first of all, by the aim of ensuring a balanced allocation of the power to impose taxes between the Member States, in accordance with the principle of fiscal territoriality, which was recognised by the Court in the case giving rise to the judgment of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraph 45). It points out that, applying national legislation in conjunction with the double taxation agreements concluded by it with all Member States, the power to tax capital gains resulting from an exchange of shares belongs, in principle, exclusively to the Member State of residence of the taxable person selling the shares, namely, in the present case, the Portuguese Republic. Consequently, the Portuguese Republic considers that an obligation not to impose such capital gains on the transfer of the residence of the taxable person to another State would result in it permanently losing its right to tax such capital gains, thus compromising its right to exercise its tax jurisdiction in relation to the activities carried out in its territory (see, to that effect, judgments of 29 March 2007, Rewe Zentralfinanz, C‑347/04, EU:C:2007:194, paragraph 42, and of 8 November 2007, Amurta, C‑379/05, EU:C:2007:655, paragraph 58). | 9 ACCORDINGLY THE ARGUMENT THAT AN APPLICATION AGAINST A PERIODIC REPORT IS IPSO FACTO INADMISSIBLE CANNOT BE ACCEPTED .
| 0 |
4,473 | 64. However, as the referring court itself pointed out, the application of that qualification is subject to judicial control (for an example of such control in relation to the concept of objective reasons in the context of Clause 5(1) of the framework agreement, see Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraphs 58 to 75), although the possibility of relying on it does not preclude the view that the provision at issue confers on individuals rights which they may enforce in the national courts and which the latter must protect (see, by analogy, van Duyn , paragraph 7; Case C‑156/91 Hansa Fleisch Ernst Mundt [1992] ECR I‑5567, paragraph 15; Case C‑374/97 Feyrer [1999] ECR I‑5153, paragraph 24; and also Case C‑413/99 Baumbast and R [2002] ECR I‑7091, paragraphs 85 and 86). | 24
That upper limit seeks to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will not be able to pay (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 280, and of 12 July 2012, Cetarsa v Commission, C‑181/11 P, not published, EU:C:2012:455, paragraph 82). | 0 |
4,474 | 23 It should be borne in mind that Directive 76/768 provided exhaustively for the harmonisation of national rules on the packaging and labelling of cosmetic products (Case C-150/88 Parfümerie-Fabrik 4711 v Provide [1989] ECR 3891, paragraph 28, and Case C-315/92 Verband Sozialer Wettbewerb v Clinique Laboratories and Estée Lauder [1994] ECR I-317, paragraph 11). | 39. In this connection, Regulation No 1610/96 seeks to limit the erosion of the effective protection accorded to patented inventions in the area of plant protection by reason, in particular, of the time required to obtain an MA. The supplementary protection certificate is designed to re-establish a sufficient period of effective protection of the patent by permitting the holder to enjoy an additional period of exclusivity on the expiry of the basic patent which is intended to compensate, at least in part, for the delay to the commercial exploitation of his invention by reason of the time which has elapsed between the date on which the application for the patent was filed and the date on which the first MA in the European Union was granted ( Hogan Lovells International , EU:C:2010:673, paragraphs 49 and 50). | 0 |
4,475 | 75. As regards, first, the alleged need to ensure a balanced allocation of the power to tax, it must be recalled that such a justification may be accepted, in particular, where the national tax system is designed to prevent conduct capable of jeopardising the right of a Member State to exercise its powers of taxation in relation to activities carried on in its territory (see Case C-347/04 Rewe Zentralfinanz [2007] ECR I-2647, paragraph 42; Case C-231/05 Oy AA [2007] ECR I-6373, paragraph 54; Amurta , paragraph 58; Case C-303/07 Aberdeen Property Fininvest Alpha [2009] ECR I-5145, paragraph 66, and Case C-284/09 Commission v Germany , paragraph 77). | 69. It also follows that that requirement as it appears in Article 4(2) of Directive 93/13 has the same scope as that referred to in Article 5 of that directive. | 0 |
4,476 | 115. As the United Kingdom Government has rightly observed, the mere fact that the operator of an online marketplace stores offers for sale on its server, sets the terms of its service, is remunerated for that service and provides general information to its customers cannot have the effect of denying it the exemptions from liability provided for by Directive 2000/31 (see, by analogy, Google France and Google , paragraph 116). | 37. It should be observed that reparation of loss or damage cannot be made conditional upon the requirement that there must have been a prior finding by the Court of an infringement of Community law attributable to the State (see Brasserie du pêcheur and Factortame , paragraphs 94 to 96, and Dillenkofer and Others , paragraph 28). | 0 |
4,477 | 19 It should be pointed out in this respect that the insurance cover against occupational disease and accident provided for in Article 73 of the Staff Regulations and in the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (`the Insurance Rules') allows an injured official to be paid lump-sum compensation by the institution by which he is employed. That compensation is calculated on the basis of the rate of invalidity and the basic salary of the official, without any regard to the liability of the person responsible for the accident or that of the institution which laid down the working conditions that may have contributed towards the onset of the occupational disease. | 95
Relevant considerations in this respect include factors such as the seriousness of the infringement and the length of time for which the infringement has persisted since the delivery of the judgment establishing it (judgment of 15 October 2015 in Commission v Greece, C‑167/14, EU:C:2015:684, paragraph 76). | 0 |
4,478 | 34. A tariff established by a professional organisation such as the Osservatorio may none the less have the character of legislation, inter alia, where the members of that organisation are experts who are independent of the economic operators concerned and they are required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the public interest and the interests of undertakings in other sectors or users of the services in question (see, to that effect, judgments in Reiff , EU:C:1993:886, paragraphs 17 to 19 and 24; Delta Schiffahrts- und Speditionsgesellschaft , EU:C:1994:240, paragraphs 16 to 18 and 23; DIP and Others , C‑140/94 to C‑142/94, EU:C:1995:330, paragraphs 18 and 19; Commission v Italy , C‑35/96, EU:C:1998:303, paragraph 44; and Arduino , EU:C:2002:97, paragraph 37). | 50 In view of the reply given to the first two questions, it must therefore be held that, in order to ensure full implementation of Article 7 of the Directive, the Member States should have adopted, within the prescribed period, all the measures necessary to provide purchasers of package travel with a guarantee that, as from 1 January 1993, they would be refunded money paid over and be repatriated in the event of the organizer' s insolvency. | 0 |
4,479 | 23 The fact that Mrs Desse received unemployment benefits in France and not in Belgium was a necessary consequence of the application of Community law. It follows from the actual terms of Article 19(1) of Regulation No 36/63 that a wholly unemployed frontier worker may claim unemployment benefits solely from the Member State in which he resides (see judgment in Case 1/85 Miethe v Bundesanstalt fuer Arbeit [1986] ECR 1837, paragraph 10, on the interpretation of Article 71(1)(a) of Regulation No 1408/71, which is worded in largely the same terms as Article 19(1) of Regulation No 36/63). | 28. Since the identification of one of the connecting factors recognised by the case‑law set out in paragraph 25 of this judgment thus enables the court objectively best placed to determine whether the elements establishing the liability of the person sued are present to take jurisdiction, the relevant connecting factor must be situated within the jurisdiction of the court seised (see, to that effect, Case C-133/11 Folien Fischer and Fofitec [2012] ECR I-0000, paragraph 52). | 0 |
4,480 | 40
It could be different only if the Commission withdrew a decision to take no further action on a complaint in order to remedy illegality affecting that decision, while stating the nature of the illegality vitiating that decision (see, to that effect, judgment of 16 December 2010, Athinaïki Techniki v Commission, C‑362/09 P, EU:C:2010:783, paragraph 70). | 49 A prohibition of the commercial use of specimens of species in Appendix II to CITES or Annex B to Regulation No 338/97 such as that laid down by the French legislation, in particular the Guyane decree, constitutes a stricter measure within the meaning of Article 15 of Regulation No 3626/82 or a more stringent measure within the meaning of Article 130t of the Treaty as the case may be. Moreover, where such a measure is applied to specimens from another Member State, it is liable to restrict intra-Community trade, contrary to Article 30 of the Treaty. | 0 |
4,481 | 26. However, the Court has already held that situations which fall within the scope ratione materiae of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the freedom, as conferred by Article 18 EC, to move and reside within the territory of the Member States (Case C-209/03 Bidar [2005] ECR I-2119, paragraph 33, and Case C‑403/03 Schempp [2005] ECR I-6421, paragraphs 17 and 18). | 47. It should be noted furthermore that, in Bachmann and Commission v Belgium , the purpose of the tax provisions in question was also to avoid double taxation. The possibility which Belgian legislation gave to physical persons to deduct payments made under life assurance contracts from their taxable income – with the end result of not taxing the income used to pay those contributions – was based on the justification that the capital constituted by means of those contributions would subsequently be taxed in the hands of its holders. In such a system, double taxation was avoided by postponing the sole taxation due until the time when the capital constituted by means of the exonerated contributions was paid. Coherence of the tax system necessarily required that, if the Belgian tax authorities were to allow the deductibility of life assurance contributions from taxable income, they had to be certain that the capital paid by the assurance company at the expiry of the contract would in fact subsequently be taxed. It is in that precise context that the Court of Justice then took the view that there were no less restrictive measures than those forming the subject-matter of Bachmann and Commission v Belgium , which were capable of safeguarding the coherence of the tax system in question. | 0 |
4,482 | 33
It is settled case-law that the standstill clauses set out in Article 13 of Decision No 1/80 and Article 41(1) of the Additional Protocol prohibit generally the introduction of new internal measures which are intended to or have the effect of making the exercise by a Turkish citizen of an economic freedom subject, on the territory of the Member State concerned, to conditions more stringent than those which were applicable at the date of entry into force of that decision or that protocol as regards that Member State (see, to that effect, judgments in Savas, C‑37/98, EU:C:2000:224, paragraph 69, and Sahin, C‑242/06, EU:C:2009:554, paragraph 63 and the case-law cited). | 59. In this connection, the French Government’s argument that the decrease in inspections is justified by the improved discipline of fishermen cannot be upheld either. | 0 |
4,483 | 39
Further, the wording of Article 135(1)(d) of the VAT Directive does not in principle preclude a transfer from being broken down into separate services which then constitute ‘transactions concerning’ transfers within the meaning of that provision (see, to that effect, judgment of 5 June 1997, SDC,C‑2/95, EU:C:1997:278, paragraph 64). While it is not inconceivable that the exemption at issue may extend to services which are not transfers per se, the fact remains that that exemption can relate only to transactions which form a distinct whole, fulfilling in effect the specific, essential functions of such transfers (see, to that effect, judgment of 5 June 1997, SDC, C‑2/95, EU:C:1997:278, paragraphs 66 to 68). | 175 THE COMMISSION' S POWER TO IMPOSE PENALTIES IS IN NO WAY AFFECTED BY THE FACT THAT THE CONDUCT CONSTITUTING THE INFRINGEMENT HAS CEASED AND THAT IT CAN NO LONGER HAVE DETRIMENTAL EFFECTS . | 0 |
4,484 | 27. However, in the context of a case such as that at issue in the main proceedings, in which a Union citizen was born in the host Member State and had not made use of the right to free movement, the Court has held that the expression ‘have’ sufficient resources in a provision similar to Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that it suffices that such resources are available to the Union citizens, and that that provision lays down no requirement whatsoever as to their origin, since they could be provided, inter alia, by a national of a non-Member State, the parent of the citizens who are minor children at issue (see, to that effect, concerning European Union law instruments pre-dating that directive, Case C‑200/02 Zhu and Chen [2004] ECR I‑9925, paragraphs 28 and 30). | 28. It is clear from the order for reference that Catherine has both sickness insurance and sufficient resources, provided by her mother, for her not to become a burden on the social assistance system of the host Member State. | 1 |
4,485 | 41. The Court has interpreted that provision as meaning that it is for the national court to establish all the consequences, arising under national law, of a finding that the term in question is unfair in order to ensure that the consumer is not bound by that term (see, inter alia, Banco Español de Crédito , paragraph 63, and Banif Plus Bank , paragraph 27). In this connection, the Court has stated that, where the national court considers a contractual term to be unfair, it must not apply it, except if the consumer opposes that non-application, after having been informed of it by that court (see, to that effect, Case C‑243/08 Pannon GSM [2009] ECR I‑4713, paragraph 35). | 69. Although tobacco products for oral use, as defined in Article 2 of Directive 2001/37, are not fundamentally different in their composition or indeed their intended use from tobacco products intended to be chewed, they were not in the same situation as those products. The tobacco products for oral use which are the subject of the prohibition laid down in Article 8a of Directive 89/622 and repeated in Article 8 of Directive 2001/37 were new to the markets of the Member States referred to in that measure. That particular situation thus authorised a difference in treatment, and it cannot validly be argued that there was a breach of the principle of non-discrimination. | 0 |
4,486 | 69. Situations falling within the scope of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC (see, in particular, Grzelczyk , paragraph 33, and Schwarz and Gootjes‑Schwarz , paragraph 87). | 46. Having regard to those points, it is therefore the task of the national court to verify whether the outline planning permission and decision approving reserved matters which are at issue in the main proceedings constitute, as a whole, a ‘development consent’ for the purposes of Directive 85/337 (see, in this connection, the judgment delivered today in Case C-508/03 Commission v United Kingdom [2006] ECR I-0000, paragraphs 101 and 102). | 0 |
4,487 | 39. The will of the parties may result from both the clauses of the dealership agreement in question and from the conduct of the parties, and in particular from the possibility of there being tacit acquiescence by the dealers in a call from the manufacturer (see, to that effect, Case C-338/00 P Volkswagen v Commission , paragraphs 61 to 68). | 12 IN THE CASE OF A PART OF A FUNCTIONAL UNIT COMPRISING TWO OR MORE MACHINES WHICH IS PRESENTED TO THE CUSTOMS AUTHORITIES SEPARATELY IT IS NECESSARY , IN ORDER TO DETERMINE THE TARIFF HEADING WITHIN WHICH IT FALLS , TO REFER TO NOTE 2 TO SECTION XVI OF THE COMMON CUSTOMS TARIFF , WHICH COVERS ' PARTS OF MACHINES ' . IN ORDER TO CLARIFY THE SCOPE OF THAT NOTE IT IS NECESSARY TO REFER , IN ADDITION , TO THE EXPLANATORY NOTES TO THE NOMENCLATURE OF THE CUSTOMS COOPERATION COUNCIL ( GENERAL NOTES TO SECTION XVI , NOTE II , HEADED ' PARTS ' , AT P . 1156 ).
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4,488 | 44. It is thus clear from the case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the public interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49; Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55; and Test Claimants in the FII Group Litigation , paragraph 46). | 40. Furthermore, both the Court of Justice and the EFTA Court have recognised the need to ensure that the rules of the EEA Agreement which are identical in substance to those of the Treaty are interpreted uniformly ( Keller Holding , paragraph 48 and the case-law cited). | 0 |
4,489 | 28. As regards Article 18 TFEU, which lays down a general prohibition of all discrimination on grounds of nationality, it should be noted that that provision applies independently only to situations governed by European Union law for which the Treaty does not lay down any specific rules of non-discrimination (see, inter alia, Case C‑443/06 Hollmann [2007] ECR I‑8491, paragraph 28 and the case-law cited; Case C‑311/08 SGI [2010] ECR I‑0000, paragraph 31; and Missionswerk Werner Heukelbach , paragraph 18). | 19. Il convient d’emblée de rappeler qu’il n’appartient pas à la Cour de qualifier concrètement les modifications en cause au principal. En effet, une telle appréciation relève de la seule compétence du juge national. Le rôle de la Cour se cantonne à fournir à ce dernier une interprétation du droit de l’Union utile pour la décision qu’il lui reviendra de prendre dans le litige dont il est saisi. Cela étant, la Cour peut déterminer les éléments pertinents, susceptibles de guider la juridiction de renvoi dans son appréciation (voir arrêt du 10 novembre 2011, Norma-A et Dekom, C‑348/10, Rec. p. I‑10983, points 57 et 58). | 0 |
4,490 | 29. It follows from that line of authority that there is ‘genuine use’ of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether there is real commercial exploitation of the mark in the course of trade, particularly the usages regarded as warranted in the economic sector concerned as a means of maintaining or creating market share for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (see Ansul , paragraph 43, Sunrider v OHIM , paragraph 70, and the order in La Mer Technology , paragraph 27). | 59. As the Court observed in paragraph 59 of the judgment in Case C‑392/02 Commission v Denmark [2005] ECR I-9811, it follows from Articles 217, 218 and 221 of the Customs Code that the abovementioned conditions are met when the customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount of duties and determine the debtor (see, to that effect, Commission v Netherlands , paragraph 71, and Case C‑104/02 Commission v Germany [2005] ECR I-2689, paragraph 80). The Member States may not dispense with determining claims, even where these are disputed; otherwise, it would have to be accepted that the financial equilibrium of the Communities may be disrupted by the conduct of a Member State ( Commission v Denmark , paragraph 60). | 0 |
4,491 | 49. It is clear that such an assessment of the risk could reveal that scientific uncertainty persists as regards the existence or extent of real risks to human health. In such circumstances, it must be accepted that a Member State may, in accordance with the precautionary principle, take protective measures without having to wait until the reality and seriousness of those risks are fully demonstrated (see, to that effect, Case C-157/96 National Farmers ' Union and Others [1998] ECR I-2211, paragraph 63). However, the risk assessment cannot be based on purely hypothetical considerations (see, to that effect, EFTA Surveillance Authority v Norway , paragraph 29, and Case C-236/01 Monsanto Agricoltura Italia and Others [2003] ECR I-8105, paragraph 106). | 31. That criterion corresponds to the idea on which the system of protection implemented by the directive is based, namely that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (see, inter alia, Case C‑618/10 Banco Español de Crédito [2012] ECR I‑0000, paragraph 39, and Case C‑472/11 Banif Plus Bank [2013] ECR I‑0000, paragraph 19). | 0 |
4,492 | 84. However, the mere fact that a company transfers its place of management to another Member State cannot set up a general presumption of tax evasion and justify a measure which compromises the exercise of a fundamental freedom guaranteed by the Treaty (see, to that effect, ICI , paragraph 26; Case C‑478/98 Commission v Belgium [2000] ECR I-7587, paragraph 45; Case C‑436/00 X and Y [2002] ECR I‑10829, paragraph 62; Case C‑334/02 Commission v France [2004] ECR I‑2229, paragraph 27; and Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 50). | 70. Accordingly, a prohibition such as that laid down by the relevant provisions of the amended Law on Lotteries relates to the use of a product within the meaning of Article 1(9) of Directive 83/189. | 0 |
4,493 | 28 As the Court has consistently held (Case C-41/93 France v Commission [1994] ECR I-1829, paragraphs 29 and 30), measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which are such as to hinder intra-Community trade would be rendered ineffective if Member States retained the right unilaterally to apply national rules derogating from those measures and a Member State is not, therefore, authorised to apply the national provisions notified by it under Article 100a(4) until after it has obtained a decision from the Commission confirming them. | 33. It should be noted that the Finnish tax legislation is designed to prevent double taxation of company profits by granting to a shareholder who receives dividends a tax advantage linked to the taking into account of the corporation tax due from the company distributing the dividends. | 0 |
4,494 | 22. In the context of that cooperation, it is for the national court or tribunal seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Lourenço Dias , cited above, paragraph 15; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18; and Siemens and ARGE Telekom , cited above, paragraph 34). | 34 SFI also argues that the position of the Belgian authorities is a source of legal uncertainty. | 0 |
4,495 | 36. Finally, once again, based on the fact that Article 1(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2000 L 338, p. 1), as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004 (OJ 2004 L 367, p. 1), sets out the principle that the scope of that regulation is confined to ‘civil matters’ without, however, defining its content and scope, the Court held that it must be interpreted autonomously (see judgment in C , C‑435/06, EU:C:2007:714, paragraphs 38 and 46). | 38. Article 1(1) of Regulation No 2201/2003 sets out the principle that the scope of that regulation is confined to ‘civil matters’ without, however, defining the content and scope of that term. | 1 |
4,496 | 33
In accordance with the Court’s settled case-law, the exemptions laid down in Article 135(1) of the VAT Directive constitute autonomous concepts of EU law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (see, inter alia, judgments of 10 March 2011, Skandinaviska Enskilda Banken, C‑540/09, EU:C:2011:137, paragraph 19 and the case-law cited, and of 22 October 2015, Hedqvist, C‑264/14, EU:C:2015:718, paragraph 33 and the case-law cited). | 34. It is, in any event, a matter for the national court to refuse to allow the right to deduct where it is established, on the basis of objective evidence, that that right is being relied on for fraudulent or abusive ends. | 0 |
4,497 | 39
As regards ‘public security’, it is apparent from the Court’s case-law that this concept covers both the internal security of a Member State and its external security and that, consequently, a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security (see, to this effect, judgments of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraphs 43 and 44, and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraphs 65 and 66). The Court has also held that the fight against crime in connection with drug trafficking as part of an organised group (see, to this effect, judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraphs 45 and 46) or against terrorism (see, to this effect, judgment of 26 November 2002, Oteiza Olazabal, C‑100/01, EU:C:2002:712, paragraphs 12 and 35) is included within the concept of ‘public security’. | 44. Accordingly, the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside those conditions, which are expressly laid down in that Treaty (see, to that effect, Inuit Tapiriit Kanatami and Others v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 98 and the case-law cited). | 0 |
4,498 | 36 As a subsidiary argument, it has maintained that, by virtue of the case-law of the Court, in order to qualify for the derogation provided for in Article 90(2), it is not sufficient for a Member State to have entrusted to an undertaking the operation of a service of general economic interest but it is also necessary for the application of the rules of the Treaty to obstruct the performance of the particular tasks assigned to the undertaking and for the interests of the Community not to be affected (Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889, paragraph 26). The Commission adds that it is clear from the judgments in Case C-320/91 Corbeau [1993] ECR I-2533, paragraphs 14 and 16, and Case C-393/92 Almelo, cited above, paragraph 49, that, for restrictions on competition involving the granting of exclusive rights to undertakings entrusted with tasks of general economic interest to be justified under Article 90(2) of the Treaty, they must be necessary to ensure performance of the specific tasks assigned to those undertakings and in particular to enable them to operate under economically acceptable conditions. | 49 Restrictions on competition from other economic operators must be allowed in so far as they are necessary in order to enable the undertaking entrusted with such a task of general interest to perform it. In that regard, it is necessary to take into consideration the economic conditions in which the undertaking operates, in particular the costs which it has to bear and the legislation, particularly concerning the environment, to which it is subject. | 1 |
4,499 | 32. Since the concept of re-utilisation is referred to in paragraphs 1 and 5 of Article 7 of Directive 96/9, it must be interpreted in the general context of that provision (see, to that effect, as regards the concept of ‘extraction’, Case C‑304/07 Directmedia Publishing [2008] ECR I‑7565, paragraph 28). | Pour ce qui est, enfin, de l’allégation d’Odile Jacob selon laquelle le Tribunal, en indiquant, au point 160 de l’arrêt attaqué,
que le «processus de désinvestissement était sous étroite surveillance de la Commission», aurait dénaturé les faits, puisque
les missions de surveillance auraient été déléguées à un mandataire, conformément aux engagements de Lagardère, il convient
de rappeler qu’une telle dénaturation doit apparaître de façon manifeste des pièces du dossier, sans qu’il soit nécessaire
de procéder à une nouvelle appréciation des faits et des preuves (arrêt Commission/ANKO, C‑78/14 P, EU:C:2015:732, point 54
et jurisprudence citée). | 0 |
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