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5,700 | 45. As appears particularly from the third recital in its preamble, the Directive seeks, by the introduction of a common system of taxation, to eliminate any disadvantage to cooperation between companies of different Member States as compared with cooperation between companies of the same Member State and thereby to facilitate the grouping together of companies at Community level. Thus, with a view to avoiding double taxation, Article 5(1) of the Directive provides for exemption in the State of the subsidiary from withholding tax upon distribution of profits (Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit and Others [1996] ECR I-5063, paragraph 22; Epson Europe , cited above, paragraph 20; and Athinaiki Zithopiia , cited above, paragraph 25). | 18 In order to determine whether a body is a court or tribunal for the purposes of that provision, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether procedure before it is inter partes, whether it applies rules of law, and whether it is independent (Case 61/65 Vaassen (née Göbbels) [1966] ECR 261; Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, paragraph 23, and Joined Cases C-69/96 to C-79/96 Garofalo and Others v Ministero della Sanità [1997] ECR I-5603, paragraph 19). | 0 |
5,701 | 28. In that regard, it is important to note first that, according to settled case-law, the right of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) itself (see Case C‑173/99 BECTU [2001] ECR I‑4881, paragraph 43; Case C‑342/01 Merino Gómez [2004] ECR I‑2605, paragraph 29; and Joined Cases C‑131/04 and C‑257/04 Robinson-Steele and Others [2006] ECR I‑2531, paragraph 48; and regarding Directive 2003/88, see Joined Cases C‑350/06 and C-520/06 Schultz-Hoff and Others [2009] ECR I‑179, paragraph 22, and Case C‑277/08 Vicente Pereda [2009] ECR I‑0000, paragraph 18). | 10 Provisions implying that a bank must be established in a Member State in order for recipients of loans residing in its territory to obtain an interest rate subsidy from the State out of public funds are liable to dissuade those concerned from approaching banks established in another Member State and therefore constitute an obstacle to movements of capital such as bank loans. | 0 |
5,702 | 60 Although, as follows from paragraph 41 of SFEI and Others, cited above, the national courts and the Commission fulfil complementary and separate roles within the actual system of supervision of State aid established by the Treaty, the same applies, a fortiori, where what is in issue is the examination of a parafiscal charge, intended to finance an aid scheme, in the light of Treaty provisions other than those concerning State aid, with a view to remedying, if necessary, infringements of Community law which have not been confirmed in the procedure provided for under Article 93 of the Treaty. | 39
In that regard, it follows from the information before the Court that the intermediation service provided by Uber is based on the selection of non-professional drivers using their own vehicle, to whom the company provides an application without which (i) those drivers would not be led to provide transport services and (ii) persons who wish to make an urban journey would not use the services provided by those drivers. In addition, Uber exercises decisive influence over the conditions under which that service is provided by those drivers. On the latter point, it appears, inter alia, that Uber determines at least the maximum fare by means of the eponymous application, that the company receives that amount from the client before paying part of it to the non-professional driver of the vehicle, and that it exercises a certain control over the quality of the vehicles, the drivers and their conduct, which can, in some circumstances, result in their exclusion. | 0 |
5,703 | 19. The Court has also held that, taking into account the two facts that, firstly, it follows from Article 2 of the Sixth Directive that every transaction must normally be regarded as distinct and independent and, secondly, a transaction which comprises a single supply from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system, it is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (see Levob Verzekeringen and OV Bank , paragraphs 20 and 22, and Aktiebolaget NN , paragraphs 22 and 23). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
5,704 | 26
The Court has already held that that requirement is not fulfilled where a jurisdiction clause is included among the general conditions of sale of one of the parties, printed on the back of a contract, unless the contract contains an express reference to those general conditions (judgment of 14 December 1976 in Estasis Saloti di Colzani, 24/76, EU:C:1976:177, paragraph 10). | 26. In order to answer that question, it must be noted at the outset that Articles 184 to 186 of the Directive constitute the scheme applicable with regard to any entitlement of the tax authority to require adjustment to be made by a taxable person, including adjustment of deductions made in respect of capital goods. | 0 |
5,705 | 53. Indeed, as is apparent from the case-law of the Court, for it to be possible to regard family benefits as being due under the legislation of a Member State, the law of that State must recognise the right to the payment of benefits in favour of the member of the family who works in that State. It is thus necessary for the person concerned to fulfil all the conditions, as to both form and substance, imposed by the internal legislation of that State in order to be able to exercise that right, which may in some cases include the condition that a prior application must have been made for the payment of such benefits (see, by analogy with a previous version of Article 76 of Regulation No 1408/71, Case 134/77 Ragazzoni [1978] ECR 963, paragraphs 8 to 11; Case 191/83 Salzano [1984] ECR 3741, paragraphs 7 and 10; Case 153/84 Ferraioli [1986] ECR 1401, paragraph 14; and Kracht , paragraph 11). | 42. The Court has observed, in that context, that that interpretation makes it possible to avoid the taking of decisions the operative parts of which might prove contradictory and contributes accordingly to legal certainty by preserving the definitive nature of an administrative decision which is acquired on the expiry of reasonable time-limits for bringing an action or by the exhaustion of remedies (see, to that effect, Case C‑110/02 Commission v Council , paragraphs 32 and 35, and Case C‑399/03 Commission v Council , paragraph 25). | 0 |
5,706 | 51
It should be noted, as observed by the Advocate General in point 54 of his Opinion, that that provision encapsulates the basic principle applying to appeals, namely that an appeal must be directed against the operative part of the General Court’s decision and may not merely seek the amendment of some of the grounds of that decision (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 43 to 45). | 13 It is necessary however to stress that the certificates of authenticity required for the importation of beef of high quality are appreciably different from export licences for textiles . The latter are not connected with a specific contract of sale but with a specific class of goods and may be sold independently of the goods, in which case the price payable represents consideration for the right to export which is independent of the price payable for the goods . | 0 |
5,707 | 59
In the context of that cooperation, questions concerning EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only 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 (judgments of 13 March 2014 in FIRIN, C‑107/13, EU:C:2014:151, paragraph 30; and of 5 March 2015 in Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 36). | 30. In the context of that cooperation, questions concerning European Union law enjoy a presumption of relevance. The Court may refuse a request for a preliminary ruling made by a national court only where it is quite obvious that the interpretation of European Union 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, Fish Legal and Shirley , paragraph 30). | 1 |
5,708 | 44. According to settled case-law, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see, in particular, Case 8/81 Becker [1982] ECR 53, paragraph 25; Joined Cases C‑246/94 to C‑249/94 Cooperativa Agricola Zootecnica S. Antonio and Others [1996] ECR I‑4373, paragraph 17; and Case C‑226/07 Flughafen Köln/Bonn [2008] ECR I‑5999, paragraph 23 and the case-law cited). | 85. Conformément à l’article 169, paragraphe 2, du règlement de procédure de la Cour, les moyens et les arguments de droit invoqués dans le cadre d’un pourvoi doivent identifier avec précision les points de motifs de la décision du Tribunal qui sont contestés. | 0 |
5,709 | 24. It is settled case-law that the right to a refund of charges levied in a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court (see, inter alia, Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12, and Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 84). The Member State is therefore in principle required to repay charges levied in breach of Community law (Joined Cases C-192/95 to C-218/95 Comateb and Others [1997] ECR I-165, paragraph 20; Metallgesellschaft , paragraph 84; Case C-147/01 Weber’s Wine World and Others [2003] ECR I-11365, paragraph 93; Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 202). | 12 IN THAT CONNECTION IT MUST BE POINTED OUT IN THE FIRST PLACE THAT ENTITLEMENT TO THE REPAYMENT OF CHARGES LEVIED BY A MEMBER STATE CONTRARY TO THE RULES OF COMMUNITY LAW IS A CONSEQUENCE OF , AND AN ADJUNCT TO , THE RIGHTS CONFERRED ON INDIVIDUALS BY THE COMMUNITY PROVISIONS PROHIBITING CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES OR , AS THE CASE MAY BE , THE DISCRIMINATORY APPLICATION OF INTERNAL TAXES . WHILST IT IS TRUE THAT REPAYMENT MAY BE SOUGHT ONLY WITHIN THE FRAMEWORK OF THE CONDITIONS AS TO BOTH SUBSTANCE AND FORM , LAID DOWN BY THE VARIOUS NATIONAL LAWS APPLICABLE THERETO , THE FACT NEVERTHELESS REMAINS , AS THE COURT HAS CONSISTENTLY HELD , THAT THOSE CONDITIONS MAY NOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR CLAIMS REGARDING NATIONAL CHARGES AND THEY MAY NOT BE SO FRAMED AS TO RENDER VIRTUALLY IMPOSSIBLE THE EXERCISE OF RIGHTS CONFERRED BY COMMUNITY LAW . ( SEE THE FOLLOWING JUDGMENTS OF THE COURT : CASE 33/76 , REWE V LANDWIRTSCHAFTSKAMMER FUR DAS SAARLAND , ( 1976 ) ECR 1989 ; CASE 45/76 , COMET V PRODUKTSCHAP VOOR SIERGEWASSEN , ( 1976 ) ECR 2043 ; CASE 68/79 , JUST V MINISTRY FOR FISCAL AFFAIRS , ( 1980 ) ECR 501 ; CASE 61/79 , AMMINISTRAZIONE DELLE FINANZE DELLO STATO V DENKAVIT ITALIANA , ( 1980 ) ECR 1205 ; CASE 811/79 , AMMINISTRAZIONE DELLE FINANZE DELLO STATO V ARIETE , ( 1980 ) ECR 2545 , AND CASE 826/79 , AMMINISTRAZIONE DELLE FINANZE DELLO STATO V MIRECO , ( 1980 ) ECR 2559 , THE LAST THREE OF WHICH WERE CITED BY THE NATIONAL COURT ).
| 1 |
5,710 | 33
As regards the Explanatory Notes to the HS, it should be added that, although they do not have legally binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (see, to that effect, judgments in Kloosterboer Services, C‑173/08, EU:C:2009:382, paragraph 25, and Agroferm, C‑568/11,EU:C:2013:407, paragraph 28). The same is true of the Explanatory Notes of the CN (see, to that effect, judgments in Develop Dr. Eisbein, C‑35/93, EU:C:1994:252, paragraph 21, and British Sky Broadcasting Group and Pace, C‑288/09 and C‑289/09, EU:C:2011:248, paragraph 92). | 28. It should also be recalled that the HS Explanatory Notes are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (see, to that effect, Case C‑11/93 Siemens Nixdorf [1994] ECR I‑1945, paragraph 12; Case C‑15/05 Kawasaki Motors Europe [2006] ECR I‑3657, paragraph 36; and Pacific World and FDD International , paragraph 29). | 1 |
5,711 | 27. It must be observed that, although Articles 5 and 6 of Decision 2009/934 do not relate to amending the list referred to in Article 26(1)(a) of the Europol Decision (‘the list’) and could not therefore validly be used as legal basis for the contested decision, the reference to those articles in the citations of that decision is in any event a purely formal defect at the most, in so far as that reference had no effect on the content of the decision or the procedure for its adoption (see, to that effect, United Kingdom v Council , C‑81/13, EU:C:2014:2449, paragraphs 65 to 67). | 25
According to the Court’s settled case-law, the tax levied on inheritances, which consist of the transfer to one or more persons of assets left by a deceased person, comes within the scope of the FEU Treaty provisions on movements of capital, save where the constituent elements of inheritances are confined to a single Member State (judgments of 23 February 2006 in van Hilten-van der Heijden, C‑513/03, EU:C:2006:131, paragraph 42; of 17 January 2008 in Jäger, C‑256/06, EU:C:2008:20, paragraph 25; of 17 October 2013 in Welte, C‑181/12, EU:C:2013:662, paragraph 20; and of 3 September 2014 in Commission v Spain, C‑127/12, not published, EU:C:2014:2130, paragraph 53 and the case-law cited). | 0 |
5,712 | 36 Finally, the Commission refers to the judgment in Case C-24/95 Land Rheinland-Pfalz v Alcan Deutschland [1997] ECR I-1591, concerning unlawfully paid State aid, in which the Court held that resisting recovery on the ground that the gain has ceased to exist would render the recovery required by Community law practically impossible (paragraph 50). | 20 It should be added that, as the Advocate General has noted at paragraph 18 of his Opinion, the words `sectors with a similar function' should be given a broad construction since their purpose is to ensure that the provision of temporary accommodation similar to, and hence in potential competition with, that provided in the hotel sector is subject to tax. | 0 |
5,713 | 22
Next, it should be borne in mind that, under EU competition law, an undertaking must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (judgments of 12 July 1984 in Hydrotherm Gerätebau, 170/83, EU:C:1984:271, paragraph 11, and 10 September 2009 in Akzo Nobel and Others v Commission, C‑97/08 P, EU:C:2009:536, paragraph 55). | 34. La Commission soutient que Nature-Balance cherche à remettre en cause les appréciations factuelles effectuées par le Tribunal. À supposer même que l’argumentation de Nature-Balance soit recevable, elle ne serait pas fondée. La Commission fait valoir que, aux fins de l’article 116 de la directive 2001/83, doit être regardé comme «nouveau» tout élément considéré comme tel par la communauté médicale (voir, en ce sens, arrêt Artegodan/Commission, C‑221/10 P, EU:C:2012:216, points 103 et 104). En l’occurrence, avant la saisine du comité des médicaments à usage humain, le médicament en cause n’aurait pas été examiné au niveau de l’Union aux fins d’une recherche des risques que comportait pour la santé publique son utilisation dans le traitement des tensions musculaires douloureuses. Ce serait donc à juste titre que le Tribunal a pu considérer comme nouveaux les risques pris en compte par ce comité.
– Appréciation de la Cour | 0 |
5,714 | 28. In order to reply to the question asked, it must be emphasised that the system established by Article 267 TFEU with a view to ensuring that European Union law is interpreted uniformly throughout the Member States instituted direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties (Case C-261/95 Palmisani [1997] ECR I-4025, paragraph 31; Case C-2/06 Kempter [2008] ECR I‑411, paragraph 41; and Case C-210/06 Cartesio [2008] ECR I‑9641, paragraph 90). | 31 As the Advocate General stated in paragraph 30 of his Opinion, it follows from settled case-law that Article 177 of the Treaty instituted a system of direct cooperation between the Court of Justice and the national courts by way of a non-contentious procedure which is completely independent of any initiative by the parties, who are merely invited to state their case within the legal limits laid down by the national court (see, in particular, Case 62/72 Bollmann [1973] ECR 269, paragraph 4). In this case the national court, in the order for reference, expressly rejected the plaintiff's allegations; they cannot therefore be taken into account in the context of the reference for a preliminary ruling. | 1 |
5,715 | 47 Third, concerning misuse of powers, it should be borne in mind that the Court has consistently held (see, inter alia, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69, and Case C-48/96 P Windpark Groothusen v Commission [1998] ECR I-2873, paragraph 52) that there is a misuse of powers where a Community institution adopts a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. | 30. L’une des caractéristiques principales de l’article en cause est le filetage du tube en métal dont il est constitué. À cet égard, il y a lieu de relever que la position 7318 de la NC, contrairement à la position 8302 de cette nomenclature, comprend des articles en métal filetés, parmi lesquels figurent les vis et les boulons, avec ou sans tête, comportant éventuellement un écrou ou une rondelle. | 0 |
5,716 | 22. As far as concerns social security benefits the Court has, on several occasions, discussed the factors to be taken into consideration for the purposes of ascertaining the legal nature of such benefits. Thus, the Court has stated that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia , Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14, and Case C-78/91 Hughes [1992] ECR I-4839, paragraph 15). | 81. S’agissant de la violation des dispositions de la directive 1999/31, alléguée par la Commission à l’appui de son troisième grief, force est de constater que, conformément à l’article 2, sous g), de cette directive, les sites utilisés pour stocker temporairement des déchets dont la durée de stockage est supérieure à un an doivent être considérés comme des décharges au sens de cette même directive et sont, en conséquence, soumis aux dispositions de celle-ci. | 0 |
5,717 | 53
In the light of the foregoing, the Court has jurisdiction to interpret Articles 8 and 11 of the TIR Convention, provisions concerning customs on whose scope it has, moreover, previously given a preliminary ruling (see, inter alia, judgments of 23 September 2003, BGL, C‑78/01, EU:C:2003:490, paragraphs 47 and 70; of 5 October 2006, Commission v Germany, C‑105/02, EU:C:2006:637, paragraphs 80 and 82; of 5 October 2006, Commission v Belgium, C‑377/03, EU:C:2006:638, paragraphs 67 to 70, 86 and 88; and of 14 May 2009, Internationaal Verhuis- en Transportbedrijf Jan de Lely, C‑161/08, EU:C:2009:308, paragraphs 34 to 36). | 46. Secondly, when the substance or object in question is a production residue, that is to say, a product which is not itself wanted for subsequent use and which the holder cannot economically re-use without prior processing, it must be considered to be a burden which the holder seeks to ‘discard’ (see to that effect Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus , cited above, paragraphs 32 to 37). | 0 |
5,718 | 26. In that regard, first, it is immaterial whether that operator is itself a contracting authority (see, to that effect, Case C-107/98 Teckal [1999] ECR I-8121, paragraph 51). It is also immaterial whether the body concerned is primarily profit-making, whether it is structured as an undertaking or whether it has a continuous presence on the market (see, to that effect, CoNISMa , paragraphs 30 and 45). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
5,719 | 28 In the fourth case before the referring court the entitlement to an orphan's pension was therefore maintained in Germany under the principle laid down in paragraph 29 of the judgment in Case C-227/89 Rönfeldt [1991] ECR I-323 and paragraphs 38 to 45 of the judgment in Gómez Rodríguez, cited above, according to which entitlement to a more favourable benefit under a social-security convention cannot be lost owing to the entry into force of the Regulation. | 23. Ces dispositions s’opposent à ce que les dividendes versés par des sociétés établies dans un État ayant adhéré à l’accord EEE (ci-après un «État de l’EEE-AELE») ou dans un État membre autre que celui de la résidence d’un contribuable soient, sur le plan fiscal, traités de manière moins favorable que ceux versés par des sociétés établies dans ce dernier État (pour la libre circulation des capitaux, voir, en ce sens, arrêts du 6 juin 2000, Verkooijen, C‑35/98, Rec. p. I‑4071, points 34 à 36, et du 7 septembre 2004, Manninen, C‑319/02, Rec. p. I‑7477, points 22 à 24; pour la liberté d’établissement, voir, en ce sens, arrêt Test Claimants in the FII Group Litigation, précité, point 46). | 0 |
5,720 | 12 As regards vessels used for the pursuit of an economic activity, the Court noted that, in exercising its powers for the purpose of defining the conditions for the grant of its `nationality' to a vessel, each Member State must comply with the prohibition of discrimination against nationals of Member States on grounds of nationality, and that a condition which stipulates that where a vessel is owned or chartered by natural persons they must be of a particular nationality and, in the case of a company, the shareholders and directors must be of that nationality is contrary to Article 52 of the Treaty (Commission v France, paragraph 14, referring to Factortame and Others, paragraphs 29 and 30). Furthermore, Irish legislation is contrary to Articles 52 and 58 of the Treaty in so far as it requires legal persons owning vessels to be established under and subject to Irish law and to have their principal place of business in Ireland and, therefore, precludes registration or management of a vessel in the case of a secondary establishment such as an agency, branch or subsidiary (Commission v France, paragraph 19). | 47. For the purposes of application of that provision to a particular case, account must first of all be taken of the overall context in which a decision of the association of undertakings was taken or produces its effects and, more specifically, of its objectives. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives (see judgments in Wouters and Others , C‑309/99, EU:C:2002:98, paragraph 97, and Consiglio nazionale dei geologi and Autorità garante della concorrenza e del mercato , C‑136/12, EU:C:2013:489, paragraph 53). | 0 |
5,721 | 48. It should nevertheless be recalled that it is settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effects of the ruling (Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraph 52; Case C‑209/03 Bidar [2005] ECR I‑2119, paragraph 68; Kalinchev , paragraph 52; and Santander Asset Management SGIIC and Others , paragraph 62). | 52. It is also settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effects of the ruling (Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraph 52; Case C‑209/03 Bidar [2005] ECR I‑2119, paragraph 68; and Brzeziński , paragraph 58). | 1 |
5,722 | 59. It should be noted that, in the present case, the General Court’s reasoning derives from a misreading of the judgment in AJD Tuna (EU:C:2011:153). In particular, it is clear from paragraphs 105 to 108 of that judgment that, by postponing until 23 June 2008 the entry into force of the measures prohibiting fishing only for purse seiners flying the flag of Spain, without that extra period being objectively justified, the Commission infringed the principle of non-discrimination. Accordingly, it follows from that finding by the Court that, by rejecting all other grounds of appeal seeking to establish the invalidity of Regulation No 530/2008, the judgment in AJD Tuna (EU:C:2011:153) declared that regulation to be invalid only to the extent that the purse seiners flying the flag of Spain were given an extra week of fishing, but maintained the validity of the date of the prohibition set for the remaining fishing vessels, that is 16 June 2008. | 10 THE SUBMISSION MUST BE REJECTED . | 0 |
5,723 | 98
It follows that the undertaking concerned must establish, first, that it did not have access to certain exculpatory evidence and, secondly, that it could have used that evidence for its defence (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 24). | 24. It follows that it is for the appellant to establish not only that it did not have access to certain exculpatory evidence, but also that it could have used that evidence for its defence. | 1 |
5,724 | 51 Here, it must be noted that, as the Court has consistently held, Articles 2 and 3 of Regulation No 729/70 permit the Commission to charge to the EAGGF only sums paid in accordance with the rules laid down in the various sectors of agricultural production, leaving the Member States to bear the burden of any other sum paid, and in particular any amounts which the national authorities wrongly believed themselves authorised to pay in the context of the common organisation of the markets (Case 11/76 Netherlands v Commission [1979] ECR 245, paragraph 8; Case 18/76 Germany v Commission [1979] ECR 343, paragraph 7; and Case C-48/91 Netherlands v Commission, cited above, paragraph 14). | 41 Next, the principle of equal treatment implies an obligation of transparency in order to enable compliance with it to be verified (see, by analogy, Case C-275/98 Unitron Scandinavia and 3-S [1999] ECR I-8291, paragraph 31). | 0 |
5,725 | 19. It should be recalled that the right to deduct provided for in Articles 17 to 20 of the Sixth VAT Directive is an integral part of the VAT scheme and in principle may not be limited. The right to deduct is exercisable immediately in respect of all the taxes charged on input transactions (see, inter alia, Case C‑437/06 Securenta [2008] ECR I‑1597, paragraph 24; Case C‑102/08 SALIX Grundstücks-Vermietungsgesellschaft [2009] ECR I‑4629, paragraph 70; and Case C‑29/08 SKF [2009] ECR I-0000, paragraph 55). | 13 AS REGARDS THE NOTIFICATION OF 1 NOVEMBER 1980 , IT IS TO BE REGRETTED THAT THE COMMISSION DID NOT CONSIDER IT NECESSARY TO STATE THE PROVISIONS WHICH IT WAS APPLYING AND TO EXPLAIN THE INTERPRETATION WHICH IT WAS THUS GIVING TO DECISION 2794/80 . IT IS HOWEVER TRUE THAT IT WAS POSSIBLE FOR THE APPLICANT , BY EXAMINING THE FIGURES IN THE NOTIFICATION IN THE LIGHT OF THE METHODS OF CALCULATION DEFINED IN THE DECISION , TO DETERMINE WHICH PROVISIONS HAD BEEN APPLIED TO TAKE ACCOUNT OF ITS OWN ECONOMIC POSITION . THE COMMISSION ' S SUMMARY STATEMENT OF REASONS WAS THEREFORE NOT SUCH AS TO DEPRIVE THE APPLICANT OF THE OPPORTUNITY OF CHECKING THE CORRECT APPLICATION , IN REGARD TO ITSELF , OF THE RULES LAID DOWN BY DECISION 2794/80 OR TO PREVENT THE COURT FROM EXERCISING ITS TASK OF REVIEW AND THEREFORE CANNOT ADVERSELY AFFECT THE VALIDITY OF THE NOTIFICATION OF 1 NOVEMBER 1980 .
THE CONDITIONS FOR APPLYING ARTICLE 4 , POINT 4 , OF DECISION 2794/80 | 0 |
5,726 | 19. It must be noted, as a preliminary point, that Community law does not detract from the power of the Member States to organise their social security systems and to adopt, in particular, provisions intended to govern the consumption of pharmaceutical products in order to promote the financial stability of their health‑care insurance schemes (Case 238/82 Duphar and Others [1984] ECR 523, paragraph 16; Case C‑249/88 Commission v Belgium [1991] ECR I‑1275, paragraph 31; Joined Cases C‑159/91 and C‑160/91 Poucet and Pistre [1993] ECR I‑637, paragraph 6; Case C‑70/95 Sodemare and Others [1997] ECR I‑3395, paragraph 27; Case C‑158/96 Kohll [1998] ECR I‑1931, paragraph 17; Case C‑245/03 Merck, Sharp & Dohme [2005] ECR I‑637, paragraph 28; and Case C‑141/07 Commission v Germany [2008] ECR I‑0000, paragraph 22). | 72. It follows that, in the light of the specific features associated with the provision of games of chance via the internet, the restriction at issue in the main proceedings may be regarded as justified by the objective of combating fraud and crime. | 0 |
5,727 | 99. In any event, if the Kingdom of Belgium had had serious doubts in that regard it could, like any Member State which encounters unforeseen difficulties in implementing an order for recovery, have submitted those problems for consideration by the Commission. In such a case the Commission and the Member State concerned must, in accordance with the duty of genuine cooperation stated in particular in Article 10 EC, work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions, in particular the provisions on aid (Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 58). | 33. Moreover, such a contract does not appear to be one of the two types of contracts which, although entered into by public entities, do not come within the scope of European Union public procurement law. | 0 |
5,728 | 55. In that regard, it is apparent from Articles 2 and 10 of the 2003 Act of Accession that the Act is based on the principle that the provisions of European Union law apply ab initio and in toto to new Member States, derogations being allowed only in so far as they are expressly provided for by transitional provisions (see, by analogy, Case 258/81 Metallurgiki Halyps v Commission [1982] ECR 4261, paragraph 8; Case C‑233/97 KappAhl [1998] ECR I‑8069, paragraph 15; and Case C‑420/07 Apostolides [2009] ECR I‑3571, paragraph 33). | 39. À cet égard, il convient de rappeler que la nécessité de parvenir à une interprétation du droit de l’Union qui soit utile au juge national implique que celui-ci définisse le cadre factuel et réglementaire dans lequel s’insèrent les questions qu’il pose ou que, à tout le moins, il explique les hypothèses factuelles sur lesquelles ces questions sont fondées. Ces exigences valent tout particulièrement dans le domaine de la concurrence, qui est caractérisé par des situations de fait et de droit complexes (voir, notamment, arrêt du 11 mars 2010, Attanasio Group, C‑384/08, Rec. p. I‑2055, point 32 et jurisprudence citée). | 0 |
5,729 | 61. The VAT Directive, by virtue of Article 370 thereof, authorised the Member States to retain certain provisions of their national legislation predating that directive which would, without that authorisation, be incompatible with that directive (see, to that effect, judgments in Idéal tourisme , C‑36/99, EU:C:2000:405, paragraph 38, and in Eurodental , EU:C:2006:763, paragraph 51). | 37. À cet égard, la Cour a déjà précisé que, pour que des impôts, des droits, des prélèvements et des taxes puissent relever de la base d’imposition de la TVA alors même qu’ils ne représentent pas de valeur ajoutée et qu’ils ne constituent pas la contrepartie économique de prestations de services, ils doivent présenter un lien direct avec cette prestation (voir, en ce sens, arrêts du 20 mai 2010, Commission/Pologne, C‑228/09, point 30, ainsi que Lidl & Companhia, précité, point 33). | 0 |
5,730 | 13 Thus, the Court has held that a scheme of benefits cannot be excluded from the scope of the directive solely because, formally, it is part of a national social security system. Such a scheme may come within the scope of the directive if its subject-matter is access to employment, including vocational training and promotion, or working conditions. However, the directive is not rendered applicable simply because the conditions of entitlement for receipt of benefits may be such as to affect the ability of a single parent to take up employment (see the judgment in Joined Cases C-63/91 and C-64/91 Jackson and Cresswell v Chief Adjudication Officer [1992] ECR I-4737, paragraphs 27, 28 and 31). | 33 In the present case, the fact that the applicant's units of production of welded steel mesh are far away from the French market is not in itself of such a nature as to hinder its exports to that market. Moreover, the applicant's arguments themselves show that the agreements were, in so far as they tended to increase prices, likely to increase its exports to France and thereby to affect trade between Member States. | 0 |
5,731 | 31. In any event, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, in particular, Case C-147/00 Commission v France [2001] ECR I‑2387, paragraph 26; Case C-173/01 Commission v Greece [2002] ECR I-6129, paragraph 7; and Case C-114/02 Commission v France [2003] ECR I-3783, paragraph 9). | 84. In general, the consequence of an annulment is that the outstanding balance of the loan becomes due forthwith, which is likely to be in excess of the consumer’s financial capacities and, as a result, tends to penalise the consumer rather than the lender who, as a consequence, might not be dissuaded from inserting such terms in its contracts. | 0 |
5,732 | 72. In Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke (paragraphs 42 to 54) the Court held, following its case-law, that the condition of selectivity is not satisfied by a measure which, although conferring an advantage on its recipient, is justified by the nature or general scheme of the system of which it is part (see Case 173/73 Italy v Commission [1974] ECR 709, paragraph 33, and Case C-75/97 Belgium v Commission [1999] ECR I-3671, paragraph 33). It examined whether the distinguishing criterion used by the national legislation at issue in the main proceedings was justified by the nature and/or general scheme of the legislation, which would mean that the disputed measure was not in the nature of State aid. | 27. As is clear from established case‑law, the imposition of a penalty payment pursuant to Article 228 EC, the purpose of which, as reiterated by the Court on numerous occasions, is one of coercion with regard to the ongoing failure to comply (see, inter alia, Case C‑387/97 Commission v Greece [2000] ECR I‑5047, paragraphs 90 and 92), is, in principle, justified only in so far as the failure to comply with an earlier judgment of the Court persists (see, inter alia, to that effect, Case C‑119/04 Commission v Italy [2006] ECR I‑6885, paragraphs 45 and 46, and Commission v Germany , paragraph 40). | 0 |
5,733 | 44. Next, in relation to the part of the penalty consisting of an increase of the tax at a fixed percentage, it suffices to point out that the Court of Justice has already held that such a procedure for establishing the amount of the penalty — which does not include any possibility of gradation — may go further than is necessary to ensure the correct levying and collection of the VAT and the prevention of evasion (see, to that effect, judgment in Rēdlihs , EU:C:2012:497, paragraphs 45 and 50 to 52). | 44. The answer to the first and second additional questions referred is therefore that Article 267 TFEU must be interpreted as meaning that the jurisdiction of the Court of Justice extends to the interpretation of the concept of ‘unfair term’ used in Article 3(1) of the Directive and in the annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of the Directive, bearing in mind that it is for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case.
The third additional question referred | 0 |
5,734 | 39. To require those who, among the residents of a Member State, are insured under the social security scheme of another Member State to finance, in addition, even if only partially, the social security scheme of the Member State of residence would give rise to unequal treatment under Article 13 of Regulation No 1408/71, since all other residents of the latter Member State are required to contribute only to its social security scheme (see, to that effect, judgments in Commission v France , EU:C:2000:84, paragraphs 45 to 48, and Commission v France , EU:C:2000:85, paragraphs 42 to 45). | 14 ON THE OTHER HAND , ANY REQUIREMENT OF PROOF WHICH HAS THE EFFECT OF MAKING IT VIRTUALLY IMPOSSIBLE OR EXCESSIVELY DIFFICULT TO SECURE THE REPAYMENT OF CHARGES LEVIED CONTRARY TO COMMUNITY LAW WOULD BE INCOMPATIBLE WITH COMMUNITY LAW . THAT IS SO PARTICULARLY IN THE CASE OF PRESUMPTIONS OR RULES OF EVIDENCE INTENDED TO PLACE UPON THE TAXPAYER THE BURDEN OF ESTABLISHING THAT THE CHARGES UNDULY PAID HAVE NOT BEEN PASSED ON TO OTHER PERSONS OR OF SPECIAL LIMITATIONS CONCERNING THE FORM OF THE EVIDENCE TO BE ADDUCED , SUCH AS THE EXCLUSION OF ANY KIND OF EVIDENCE OTHER THAN DOCUMENTARY EVIDENCE . ONCE IT IS ESTABLISHED THAT THE LEVYING OF THE CHARGE IS INCOMPATIBLE WITH COMMUNITY LAW , THE COURT MUST BE FREE TO DECIDE WHETHER OR NOT THE BURDEN OF THE CHARGE HAS BEEN PASSED ON , WHOLLY OR IN PART , TO OTHER PERSONS .
| 0 |
5,735 | 21. In the latter case, comparing the circumstances in which the person concerned actually uses the property with the circumstances in which the corresponding economic activity is usually carried out may be one way of ascertaining whether the activity concerned is carried out for the purpose of obtaining income on a continuing basis (see Enkler , paragraph 28, and Rēdlihs , paragraph 35). | 14 QUESTION 1 ( A ) IS ESSENTIALLY INTENDED TO ESTABLISH WHETHER THE COURT HAS JURISDICTION TO GIVE A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY , AND UNDER ARTICLE 150 OF THE EAEC TREATY , ON THE INTERPRETATION OF ARTICLE 3 OF THE ACT OF ACCESSION WITH REGARD TO THE INSTRUMENTS CONCERNING THE EUROPEAN SCHOOLS AND THEIR TEACHING STAFF .
| 0 |
5,736 | 9 It should be recalled that Regulation No 4055/86, which was adopted on the basis of Article 84(2) EC Treaty (now, after amendment, Article 80(2) EC), lays down measures for the application in the maritime transport sector of the principle of freedom to provide services laid down in Article 59 of the EC Treaty (now, after amendment, Article 49 EC). Moreover, the Court has decided to that effect by ruling that Article 1(1) of the regulation defines the beneficiaries of the freedom to provide maritime transport services between Member States and between Member States and third countries in terms which are substantially the same as those in Article 59 of the Treaty (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 10). | 47 It is necessary, therefore, to determine whether the letter sent by the Commission to the VEB on 1 April 1993 is of direct and individual concern to the applicant. | 0 |
5,737 | 39. In any event, the decision to refer does not provide sufficient information regarding the main proceedings, in particular regarding the relevant facts, for the Court to determine the relevance of Article 6 of Regulation No 562/2006 for the purposes of examination of that action. Consequently, the Court is not in a position to determine whether the situation of the claimant in the main proceedings is governed by European Union law within the meaning of Article 51(1) of the Charter, whose provisions are addressed to the Member States only when they are implementing European Union law (see, to that effect, Case C-400/10 PPU McB. [2010] ECR I-8965, paragraph 51, and Case C-40/11 Iida [2012] ECR, paragraphs 79 to 81). | 42. That national provision is thus aimed at granting compensation for the future, protecting younger workers and facilitating their reintegration into employment, whilst taking account of the need to achieve a fair distribution of limited financial resources in a social plan. | 0 |
5,738 | 55 Although a rule such as that referred to in paragraph 5 above may apply irrespective of the nationality of the worker concerned, it operates, in practice, to the detriment of nationals of other Member States. As the Court noted at paragraph 12 of the judgment in Allué I, only 25% of foreign-language assistants are Italian nationals, according to the statistics provided by the Italian Government. | 53. As regards a term which is included, without being individually negotiated, in a contract between a consumer and a seller or supplier within the meaning of the Directive, where it confers exclusive jurisdiction on a court in the territorial jurisdiction of which the seller or supplier has his principal place of business, the Court has held, in paragraph 24 of Océano Grupo Editorial and Salvat Editores , that it follows that such a term must be regarded as unfair within the meaning of Article 3 of the Directive in so far as it causes, contrary to the requirement of good faith, a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. | 0 |
5,739 | 31. The Court has already held that that provision must be strictly interpreted, since it lays down an exception to the mechanism for reviewing the substance of unfair terms, such as that provided for by the system of consumer protection put in place by Directive 93/13 (judgments in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 42, and Matei , C‑143/13, EU:C:2015:127, paragraph 49). | 57. Il convient de rappeler que, à supposer même que les arrêts rendus au titre de l’article 226 CE aient les mêmes effets que ceux rendus au titre de l’article 234 CE, des considérations de sécurité juridique peuvent rendre nécessaire la limitation de leurs effets dans le temps dès lors que sont remplies les conditions établies par la jurisprudence de la Cour dans le cadre de l’article 234 CE (voir arrêt du 7 juin 2007, Commission/Grèce, C‑178/05, Rec. p. I‑4185, point 67 et jurisprudence citée). | 0 |
5,740 | 24
The Court concluded that Article 49 EC precludes national tax legislation which, as a general rule, takes into account gross income when taxing non-residents, without deducting business expenses, whereas residents are taxed on their net income, after deduction of those expenses (judgments of 12 June 2003 in Gerritse, C‑234/01, EU:C:2003:340, paragraphs 29 and 55; 3 October 2006 in FKP Scorpio Konzertproduktionen, C‑290/04, EU:C:2006:630, paragraph 42; and 15 February 2007 in Centro Equestre da Lezíria Grande, C‑345/04, EU:C:2007:96, paragraph 23). | 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 |
5,741 | 28. Although the main actions — since they seek to avoid the infringement of rights that are under threat — must necessarily be based on hypotheses which are by their nature uncertain, they are, according to the referring court, none the less permitted under German law. Since, in proceedings of the kind provided for in Article 267 TFEU, the interpretation of national law falls exclusively to the referring court (judgment in Križan and Others , C‑416/10, EU:C:2013:8, paragraph 58), the fact that the OMT decisions have not yet been implemented and that their implementation will be possible only after further legal acts have been adopted is not a ground for denying that the request for a preliminary ruling meets an objective need for resolving the cases brought before that court (see, by analogy, judgment in Bosman , C‑415/93, EU:C:1995:463, paragraph 65). | 51. In order to create the conditions and means necessary for the setting up of a European Works Council, the responsibility of either central management or the deemed central management includes an obligation to supply the employees ' representatives with the information essential to the opening of negotiations for establishing such a council. | 0 |
5,742 | 26. Third, as is clear from paragraphs 21 and 33 of Leur-Bloem , the mere fact that the interpretation to be given to Article 202(2) of the ITC 1992 does not derive exclusively from the judgment that the Court will be required to deliver does not preclude its jurisdiction to rule on the question referred. | 36 First, the extent to which those periods are to be taken into account when the taxable amount for VAT purposes is determined is limited by the requirement that only expenses which relate to the goods themselves, such as the writing-off of depreciation, or expenses incurred by the taxable person which entitle him to deduct VAT, may be taken into account. | 0 |
5,743 | 12 It must be remembered that in its judgments of 11 December 1990 in Case C-189/89 Spagl v Hauptzollamt Rosenheim [1990] ECR I-4539, paragraph 30, and Case C-217/89 Pastaetter v Hauptzollamt Bad Reichenhall [1990] ECR I-4585, paragraph 21, the Court held that "Article 3a(2) of Council Regulation (EEC) No 857/84 of 31 March 1984, as amended by Council Regulation (EEC) No 764/89 of 20 March 1989, is invalid in so far as it restricts the special reference quantity provided for in that provision to 60% of the quantity of milk delivered or the quantity of milk equivalent sold by the producer during the 12 calendar months preceding the month in which the application for the non-marketing or conversion premium was made". | 40. That concept can cover all objects and substances discarded by their owner, even if they have a commercial value and are collected on a commercial basis for recycling, reclamation or reuse (see, in particular, Case C‑9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I‑3533, paragraph 29 and the case-law cited). | 0 |
5,744 | 18 More specifically, the Court has accepted that the aim of Articles 48 to 51 of the Treaty would not be attained if, as a consequence of the exercise of their right to freedom of movement, migrant workers were to lose the advantages in the field of social security guaranteed to them by the laws of a single Member State (see, for example, Case 24/75 Petroni v ONPTS [1975] ECR 1149, paragraph 13; Case 807/79 Gravina v Landesversicherungsanstalt Schwaben [1980] ECR 2205, paragraph 6; Case 284/84 Spruyt, cited above, paragraph 19; and Case C-293/88 Winter-Lutzins, cited above, paragraph 14). Such a consequence could deter Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (see Case C-228/88 Bronzino v Kindergeldkassse [1990] ECR I-531, paragraph 12, and Case C-12/89 Gatto v Bundesanstalt fuer Arbeit [1990] ECR I-557). | 86 The Commission, which claims that this plea is inadmissible, rightly points out that the alleged absolute impossibility cannot invalidate the contested decision where it emerges only at the stage of implementation. According to the case-law of the Court, any procedural or other difficulties in regard to the implementation of the contested measure cannot have any influence on the lawfulness of the measure (Joined Cases C-278/92 to C-280/92 Spain v Commission, cited above, paragraph 80). However, the Commission may not impose, by a decision such as the contested decision, which would then be invalid, an obligation whose implementation would, from the beginning, be impossible in objective and absolute terms. Consequently, the Belgian Government's plea could be accepted only if recovery could never objectively have been carried out. | 0 |
5,745 | 28. As the Court held in Case 43/75 Defrenne [1976] ECR 455, paragraph 12, that principle, which is a particular expression of the general principle of equality which prohibits comparable situations from being treated differently unless the difference is objectively justified, forms part of the foundations of the Community (see also Case C‑381/99 Brunnhofer [2001] ECR I-4961, paragraph 28, and Lawrence and Others , paragraph 12). | En second lieu, et en toute occurrence, la restitution de cette somme ne serait pas inéluctable. En effet, la Cour a admis
dans sa jurisprudence que les juridictions nationales puissent ne pas ordonner la restitution d’une aide d’État illégalement
versée lorsque cette restitution serait inappropriée en raison de circonstances exceptionnelles (voir, en ce sens, arrêt SFEI
e.a., C‑39/94, EU:C:1996:285, points 70 et 71). | 0 |
5,746 | 49
It follows that a court of the host Member State is not entitled to scrutinise the validity of an E 101 certificate in the light of the background against which it was issued (see, to that effect, judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 32). | 74
It must therefore be held that the concept of ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, must be understood as referring to the proceeding that led to the judicial decision which finally sentenced the person whose surrender is sought in connection with the execution of a European Arrest Warrant. | 0 |
5,747 | 27. In that regard, it must be held that, indeed, a particular vigilance is required, as stated, moreover, in Article 52 TFEU, when examining national measures for the protection of public health. As the French Government points out, the mere fact that a Member State has chosen a system of protection different from that adopted by another Member State cannot affect the appraisal as to the need for and proportionality of the provisions adopted (see, inter alia, Mac Quen and Others , paragraphs 33 and 34; Case C‑294/00 Gräbner [2002] ECR I‑6515, paragraphs 46 and 47; and Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraph 51). | 41 The question accordingly arises whether two actions have the same object when the first seeks a declaration that the plaintiff is not liable for damage as claimed by the defendants, while the second, commenced subsequently by those defendants, seeks on the contrary to have the plaintiff in the first action held liable for causing loss and ordered to pay damages. | 0 |
5,748 | 82
It follows from this that Regulation No 1234/2007 constitutes an instrument of the common agricultural policy essentially intended to assure consumers that agricultural products bearing a geographical indication registered under that regulation have, because of their provenance from a particular geographical area, certain specific characteristics and, accordingly, offer a guarantee of quality due to their geographical provenance, with the aim of enabling agricultural operators to secure higher incomes in return for a genuine effort to improve quality and of preventing improper use of those designations by third parties seeking to profit from the reputation which those products have acquired by their quality (see, by analogy, judgment of 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraph 111). | 66. À cet effet, tout document officiel émis par les autorités de l’État membre concerné peut être considéré comme une source valable d’information aux fins de l’engagement par la Commission de la procédure visée à l’article 258 TFUE (voir, en ce sens, arrêt Commission/Italie, EU:C:2007:250, point 29). | 0 |
5,749 | À cet égard, il convient de rappeler que, selon une jurisprudence bien établie, la motivation exigée à l’article 253 CE doit être adaptée à la nature de l’acte en cause et doit faire apparaître de façon claire et non équivoque le raisonnement de l’institution, auteur de l’acte, de manière à permettre aux intéressés de connaître les justifications de la mesure prise et à la juridiction compétente d’exercer son contrôle. L’exigence de motivation doit être appréciée en fonction de toutes les circonstances de l’espèce, notamment du contenu de l’acte, de la nature des motifs invoqués et de l’intérêt que les destinataires de l’acte ou d’autres personnes concernées directement et individuellement par celui-ci peuvent avoir à recevoir des explications. Il n’est pas exigé que la motivation spécifie tous les éléments de fait et de droit pertinents, dans la mesure où la question de savoir si la motivation d’un acte satisfait aux exigences de l’article 253 CE doit être appréciée au regard non seulement de son libellé, mais aussi de son contexte ainsi que de l’ensemble des règles juridiques régissant la matière concernée (voir, en ce sens, arrêt du 29 septembre 2011, Elf Aquitaine/Commission, C‑521/09 P, EU:C:2011:620, points 147 et 150). | 30 IT SHOULD BE BORNE IN MIND THAT THE COMMUNITY CAN ONLY BE HELD LIABLE FOR DAMAGES IF A NUMBER OF CONDITIONS ARE SATISFIED AS REGARDS THE ILLEGALITY OF THE ALLEGEDLY WRONGFUL ACT COMMITTED BY THE INSTITUTIONS, THE ACTUAL HARM SUFFERED, AND THE EXISTENCE OF A CAUSAL LINK BETWEEN THE ACT AND THE DAMAGE ALLEGED TO HAVE BEEN SUFFERED . | 0 |
5,750 | 35. It follows from the foregoing that the measures which can be adopted on the basis of Article 57 of the 2003 Act of Accession are limited, in principle, to adaptations intended to render earlier Community measures applicable in the new Member States, to the exclusion of all other amendments (see, by way of analogy, in respect of the identical provision contained in the 1994 Act of Accession, Parliament v Council , cited above, paragraphs 14 and 19), and, particularly, to the exclusion of temporary derogations. | 50
The repeated reference to the sub-objective relating to the preservation of conditions of competition in the internal market, not only in recitals 5 and 7 of Directive 2003/87 but also in recitals 8 and 15 of Directive 2009/29, demonstrates the essential nature of that sub-objective in the scheme for greenhouse gas emission allowance trading. | 0 |
5,751 | 33. A different interpretation would be contrary to the objective of Article 6 of the Rome Convention, which is to guarantee adequate protection to the employee. As emerges from the Giuliano and Lagarde Report on the Convention on the law applicable to contractual obligations (OJ 1980 C 282, p. 1), Article 6 of the Rome Convention was intended to provide ‘a more appropriate arrangement for matters in which the interests of one of the contracting parties are not the same as those of the other, and … more adequate protection for the party who from the socio-economic point of view is regarded as the weaker in the contractual relationship’ (see Koelzsch , paragraphs 40 and 42, and Voogsgeerd , paragraph 35). | 18 Consequently, Note 5(B) to the Combined Nomenclature does not preclude network cards from being classified under heading No 8471. | 0 |
5,752 | 56. On the first point, the Court has already ruled that the disadvantages which could arise from the parallel exercise of powers of taxation by different Member States, to the extent that such an exercise is not discriminatory, do not constitute restrictions prohibited by the Treaty (see, to that effect, Kerckhaert and Morres , paragraphs 19, 20 and 24; Case C‑194/06 Orange European Smallcap Fund [2008] ECR I‑3747, paragraphs 41, 42 and 47; and Case C‑128/08 Damseaux [2009] ECR I‑0000, paragraph 27). | 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 |
5,753 | 147. A Member State which seeks to be allowed to grant aid by way of derogation from the Treaty rules has a duty to collaborate with the Commission. In pursuance of that duty, it must in particular provide all the information necessary to enable the Commission to verify that the conditions for the derogation sought are fulfilled (see Case C‑364/90 Italy v Commission [1993] ECR I‑2097, paragraph 20, and Case C‑372/97 Italy v Commission [2004] ECR I‑3679, paragraph 81). | 45. With regard to legislation such as that at issue in the main proceedings, although the national legislature is entitled to confine to individual public-law rights the rights whose infringement may be relied on by an individual in legal proceedings contesting one of the decisions, acts or omissions referred to in Article 10a of Directive 85/337, such a limitation cannot be applied as such to environmental protection organisations without disregarding the objectives of the last sentence of the third paragraph of Article 10a of Directive 85/337. | 0 |
5,754 | 39 In that connection it should be noted that Member States are required as a matter of principle to repay taxes collected in breach of Community law (Joined Cases C-192/95 to C-218/95 Comateb and Others [1997] ECR I-165, paragraph 20, and Dilexport, paragraph 23), and whilst the Court has acknowledged that, by way of exception to that principle, fixing a reasonable period for claiming repayment is compatible with Community law, that is in the interests of legal certainty, as was noted in paragraph 35 hereof. However, in order to serve their purpose of ensuring legal certainty limitation periods must be fixed in advance (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 19). | 37
In that regard, while it is clear from the judgment in Telefunken Fernseh und Rundfunk (163/84, EU:C:1985:396) that in order to be capable of being the object of a single classification as a ‘set’ of goods, those goods must be presented together for the purposes of customs clearance, it does not follow from that case, however, that in order to be classified as such, the goods must necessarily be in one and the same package at the time of that transaction. The term a ‘set’ of goods refers rather to a combination of articles that are normally offered, in particular in retail shops, as a unit and in a single package, in order to meet a particular need or in order for a specific activity to be performed. | 0 |
5,755 | 41. Finally, so far as concerns the third argument, it is apparent from Joined Cases C‑403/08 and C-429/08 Football Association Premier League and Others [2011] ECR I-0000, paragraphs 76 to 145, that communications to the public by satellite must be capable of being received in all the Member States and that they therefore by definition have a cross-border nature. Furthermore, the communications at issue in the main proceedings display such a nature since they involve Belgian and Netherlands companies, Airfield and Canal Digitaal, and the programme-carrying signals are intended in particular for television viewers residing in Belgium and Luxembourg. | 45 THE CLEAR OBJECTIVE OF THE INVITATIONS TO TENDER AND IMPORTS OUTSIDE THESE INVITATIONS TO TENDER WAS ONLY TO PERMIT THE QUANTITY OF SUGAR TO BE IMPORTED WHICH WAS ABSOLUTELY NECESSARY TO MAKE GOOD THE AMOUNT BY WHICH NATIONAL PRODUCTION FELL SHORT OF DEMAND . | 0 |
5,756 | 46. As to whether Decision 2011/346 contains a sufficient statement of reasons in relation to the condition that trade between Member States must be affected, referred to in Article 107(1) TFEU, it must be recalled that the Commission is not required to establish that a State measure has a real effect on trade between Member States and that competition is actually being distorted. The Commission is required only to establish that that measure is liable to have such effects (see, to that effect, judgments in Unicredito Italiano , C‑148/04, EU:C:2005:774, paragraph 54; Cassa di Risparmio di Firenze and Others , C‑222/04, EU:C:2006:8, paragraph 140; Libert and Others , C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 76; and Eventech , C‑518/13, EU:C:2015:9, paragraph 65). | 20 It is clear from paragraphs 19 to 22 of the judgment in Linthorst, Pouwels and Scheres that the expression `other similar services' does not refer to some common feature of the disparate activities mentioned in Article 9(2)(e), third indent, of the Directive but to services similar to those of each of those activities, viewed separately. | 0 |
5,757 | 101. First, such an interpretation is consistent with the Court’s case-law relating to the concept of indirect discrimination, according to which, in particular, such discrimination is liable to arise when a national measure, albeit formulated in neutral terms, works to the disadvantage of far more persons possessing the protected characteristic than persons not possessing it (see in particular, to this effect, judgments in Z. , C‑363/12, EU:C:2014:159, paragraph 53 and the case-law cited, and Cachaldora Fernández , C‑527/13, EU:C:2015:215, paragraph 28 and the case-law cited). | 45. The use in Article 14 of the Association Agreement of the verb ‘to be guided by’ indicates that the Contracting Parties are not obliged to apply the provisions of the Treaty on freedom to provide services or indeed those adopted for the implementation of those provisions but simply to consider them as a source of guidance for the measures to be adopted in order to implement the objectives laid down in that agreement. | 0 |
5,758 | 34. The Court has consistently held that, in interpreting a provision of Community law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it forms part (Case C-223/98 Adidas [1999] ECR I-7081, paragraph 23; Case C-301/98 KVS International [2000] ECR I-3583, paragraph 21; Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 50; Case C-191/99 Kvaerner [2001] ECR I-4447, paragraph 30, and Case C-491/01 British American Tobacco and Imperial Tobacco (Investments) [2002] ECR I-11453, paragraph 203). | 33. On the other hand, other goods exist which do not possess an intrinsic shape and must be packaged in order to be marketed. The packaging chosen imposes its shape on the goods. In such circumstances, that packaging, for the purposes of examining an application for registration as a mark, must be assimilated to the shape of the product. That applies, for example, to goods manufactured, in particular, in the form of granules, powder or liquid which, because of their very nature, lack a shape of their own. | 0 |
5,759 | 50. However, despite those characteristics, the possibility of bringing an action for unjust enrichment against the Community cannot be denied to a person solely on the ground that the EC Treaty does not make express provision for a means of pursuing that type of action. If Article 235 EC and the second paragraph of Article 288 EC were to be construed as excluding that possibility, the result would be contrary to the principle of effective judicial protection, laid down in the case‑law of the Court and confirmed in Article 47 of the Charter of fundamental rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1) (see Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 37, and Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑0000, paragraph 335). | 37. It is to be noted at the outset that, according to settled case-law, the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Case 222/84 Johnston [1986] ECR 1651, paragraphs 18 and 19; Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 14; Case C-424/99 Commission v Austria [2001] ECR I-9285, paragraph 45; Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 39; and Case C-467/01 Eribrand [2003] ECR I-6471, paragraph 61) and which has also been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1). | 1 |
5,760 | 30. It is important to recall that, under Article 83 of the Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular where it considers that it lacks sufficient information, where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the persons referred to in Article 23 of the Statute of the Court of Justice of the European Union (see judgment in Commission v Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 27 and the case-law cited therein). | 51 As regards the effectiveness of the supervision of the taxation of pensions paid to Finnish residents, it may be ensured by measures which restrict freedom to provide services to a lesser degree than a national measure such as that at issue in the main proceedings. | 0 |
5,761 | Toutefois, il ressort d’une jurisprudence constante de la Cour que la nécessité de prévenir la réduction de recettes fiscales ne figure ni parmi les objectifs énoncés à l’article 65 TFUE ni parmi les raisons impérieuses d’intérêt général susceptibles de justifier une restriction à une liberté instituée par le traité (arrêts du 7 septembre 2004, Manninen, C‑319/02, EU:C:2004:484, point 49 ; du 27 janvier 2009, Persche, C‑318/07, EU:C:2009:33, point 46, et du 10 février 2011 Missionswerk Werner Heukelbach, C‑25/10, EU:C:2011:65, point 31). Il en va d’ailleurs de même s’agissant de la sauvegarde de l’intérêt de l’économie nationale (voir, en ce sens, arrêt du 21 décembre 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, point 72 et jurisprudence citée). | 13 AS THE COURT HAS REPEATEDLY HELD , THE DECISIVE CRITERION FOR THE CUSTOMS CLASSIFICATION OF GOODS MUST BE SOUGHT GENERALLY IN THEIR OBJECTIVE CHARACTERISTICS AND QUALITIES , AS DEFINED IN THE RELEVANT HEADING OF THE COMMON CUSTOMS TARIFF AND IN THE NOTES TO THE SECTIONS OR CHAPTERS .
| 0 |
5,762 | 193. For the purposes of responding to the question referred, it should be borne in mind that the Court has consistently held that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon by individuals as against the State, particularly in its capacity as an employer (see, in particular, to that effect, Case 152/84 Marshall [1986] ECR 723, paragraphs 46 and 49, and Case C‑187/00 Kutz‑Bauer [2003] ECR I‑2741, paragraphs 69 and 71). | 41. Il y a lieu de rappeler, à titre liminaire, que, dans le cadre du règlement (CEE) n° 729/70 du Conseil, du 21 avril 1970, relatif au financement de la politique agricole commune (JO L 94, p. 13), remplacé par le règlement n° 1258/1999, la Cour a jugé que, en raison de la finalité de ce premier règlement, une interprétation stricte des conditions de prise en charge des dépenses s’imposait (voir, en ce sens, arrêts Pays-Bas/Commission, 11/76, EU:C:1979:28, point 9, et Italie/Commission, 55/83, EU:C:1985:84, point 31). | 0 |
5,763 | 10 As the Court has consistently held, in the field covered by the Directive, the Member States retain only the limited powers granted them by the actual provisions of the Directive and of those directives amending it (Case 158/80 REWE [1981] ECR 1805, at paragraph 36, Case 278/82 REWE [1984] ECR 721, at paragraph 31, Case C-158/88 Commission v Ireland [1990] ECR I-2367, at paragraph 7, and Case 208/88 Commission v Denmark [1990] ECR I-4445, at paragraph 7). | 34. Dans le cadre d’une telle procédure, il incombe à la Commission 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 de manière substantielle et détaillée les données présentées et leurs conséquences (voir arrêt Commission/Italie, C‑196/13, EU:C:2014:2407, point 48 et jurisprudence citée). | 0 |
5,764 | 29. The First Directive, as amplified and supplemented by the Second and Third Directives, thus requires the Member States to ensure that civil liability in respect of the use of vehicles normally based in their territory is covered by insurance, and specifies, inter alia, the types of damage and the third-party victims to be covered by that insurance ( Marques Almeida , paragraph 27 and the case‑law cited). | 27. The First Directive, as amplified and supplemented by the Second and Third Directives, thus requires the Member States to ensure that civil liability in respect of the use of vehicles normally based in their territory is covered by insurance, and specifies, inter alia, the types of damage and the third-party victims to be covered by that insurance ( Mendes Ferreira and Delgado Correia Ferreira , paragraph 27; Carvalho Ferreira Santos , paragraph 27; and Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 24). | 1 |
5,765 | 40. However, the Court has held, in relation to expenses, such as business expenses which are directly linked to an activity which has generated taxable income in a Member State, that residents and non-residents of that State are in a comparable situation, with the result that legislation of that State which denies non-residents, in matters of taxation, the right to deduct such expenses, while, on the other hand, allowing residents to do so, risks operating mainly to the detriment of nationals of other Member States and therefore constitutes indirect discrimination on grounds of nationality (see Gerritse , paragraphs 27 and 28; Case C‑346/04 Conijn [2006] ECR I‑6137, paragraph 20; Case C‑290/04 FKP Scorpio Konzertproduktionen [2006] ECR I‑9461, paragraph 49; Case C‑345/04 Centro Equestre da Lezíria Grande [2007] ECR I‑1425, paragraph 23; Case C‑11/07 Eckelkamp and Others [2008] ECR I‑6845, paragraph 50; and Case C‑43/07 Arens-Sikken [2008] ECR I‑6887, paragraph 44). | 71. As is clear from all the above considerations, the German Government has failed to take the measures necessary to recover from the beneficiary the aid which is the subject of Decision 2000/392. | 0 |
5,766 | 23. Such a provision also has a restrictive effect as regards companies established in other Member States, in that it constitutes an obstacle to their raising capital in Finland. Since revenue from capital of non-Finnish origin receives less favourable tax treatment than dividends distributed by companies established in Finland, the shares of companies established in other Member States are less attractive to investors residing in Finland than shares in companies which have their seat in that Member State (Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 35; Case C-334/02 Commission v France [2004] ECR I-0000, paragraph 24). | 61. It is true that those objectives — the reduction of betting and gaming opportunities, and the combating of criminality by making the operators active in the sector subject to control and channelling betting and gaming into the systems thus controlled — are among those recognised by case‑law as capable of justifying restrictions on fundamental freedoms in the betting and gaming sector ( Placanica and Others , paragraphs 46 and 52). | 0 |
5,767 | 46. As is clear from paragraph 33 of this judgment, the Court has already held that, under the principle of non-discrimination and, in particular, Articles 2(1) and 5(1) of Directive 76/207, protection against dismissal must be granted to women not only during maternity leave, but also throughout the period of the pregnancy. According to the Court, dismissal of a female worker on account of pregnancy, or for a reason essentially based on that state, affects only women and therefore constitutes direct discrimination on the grounds of sex (see, to that effect, Handels- og Kontorfunktionærernes Forbund , paragraph 13; Brown , paragraphs 16, 24 and 25; McKenna , paragraph 47; and Paquay , paragraph 29). | 15 ACCORDINGLY, THE REPLY TO THE FIRST QUESTION MUST BE THAT THE BENEFITS MENTIONED IN ARTICLE 4 ( 1 ) ( B ) OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 EMBRACE THOSE PROVIDED BY THE NATIONAL PROVISIONS GRANTING BENEFITS TO HANDICAPPED PERSONS, INSOFAR AS THESE PROVISIONS RELATE TO WORKERS WITHIN THE MEANING OF ARTICLE 1 ( A ) OF THIS REGULATION AND CONFER UPON THEM A LEGALLY PROTECTED ENTITLEMENT FOR THE GRANT OF THESE BENEFITS . | 0 |
5,768 | Dans ces conditions, et eu égard au fait, ainsi que l’a rappelé le Tribunal au point 100 de l’arrêt attaqué, que la Commission
peut, à tout moment, décider d’élever le niveau du montant de l’amende, y compris par l’application, à des cas d’espèce, de
règles de conduite de portée générale telles que les lignes directrices (voir, en ce sens, arrêt du 28 juin 2005, Dansk Rørindustri e.a./Commission,
C‑189/02 P, C‑202/02 P, C‑205/02 P à C‑208/02 P et C‑213/02 P, EU:C:2005:408, points 229 et 230), c’est à bon droit que le
Tribunal a conclu, au point 107 de l’arrêt attaqué, que les lignes directrices de 2006 et la nouvelle méthode de calcul qu’elles
comportent, à supposer que cette dernière ait eu un effet aggravant quant au niveau des amendes infligées, étaient raisonnablement
prévisibles pour des entreprises, telles que SLM, à l’époque où l’infraction concernée a été commise et que, partant, en appliquant,
dans la décision litigieuse, ces lignes directrices pour calculer le montant de l’amende à infliger pour une infraction commise
avant leur adoption, la Commission n’avait pas violé le principe de non‑rétroactivité (voir, par analogie, arrêt du 18 juillet
2013, Schindler Holding e.a./Commission, C‑501/11 P, EU:C:2013:522, point 75 ainsi que jurisprudence citée). | 11 The Court rejected those arguments and held that the only possible decisive criterion was whether the pension was paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment based on the wording of Article 119 of the Treaty itself (Evrenopoulos, paragraph 19). | 0 |
5,769 | 37
Moreover, according to settled case-law of the Court, EU law cannot be relied on for abusive or fraudulent ends (see judgment of 13 March 2014 in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 29 and the case-law cited). | 6 THE WAY IN WHICH THAT PROVISION IS TO BE APPLIED MUST BE INTERPRETED IN THE LIGHT OF THE EFFECT OF THE CONFERMENT OF JURISDICTION BY CONSENT , WHICH IS TO EXCLUDE BOTH THE JURISDICTION DETERMINED BY THE GENERAL PRINCIPLE LAID DOWN IN ARTICLE 2 AND THE SPECIAL JURISDICTIONS PROVIDED FOR IN ARTICLES 5 AND 6 OF THE CONVENTION .
IN VIEW OF THE CONSEQUENCES THAT SUCH AN OPTION MAY HAVE ON THE POSITION OF THE PARTIES TO THE ACTION , THE REQUIREMENTS SET OUT IN ARTICLE 17 GOVERNING THE VALIDITY OF CLAUSES CONFERRING JURISDICTION MUST BE STRICTLY CONSTRUED .
BY MAKING SUCH VALIDITY SUBJECT TO THE EXISTENCE OF AN ' AGREEMENT ' BETWEEN THE PARTIES , ARTICLE 17 IMPOSES UPON THE COURT BEFORE WHICH THE MATTER IS BROUGHT THE DUTY OF EXAMINING , FIRST , WHETHER THE CLAUSE CONFERRING JURISDICTION UPON IT WAS IN FACT THE SUBJECT OF A CONSENSUS BETWEEN THE PARTIES , WHICH MUST BE CLEARLY AND PRECISELY DEMONSTRATED .
THE PURPOSE OF THE FORMAL REQUIREMENTS IMPOSED BY ARTICLE 17 IS TO ENSURE THAT THE CONSENSUS BETWEEN THE PARTIES IS IN FACT ESTABLISHED .
THE QUESTIONS REFERRED TO THE COURT BY THE BUNDESGERICHTSHOF MUST BE EXAMINED IN THE LIGHT OF THESE CONSIDERATIONS .
THE QUESTIONS REFERRED BY THE BUNDESGERICHTSHOF | 0 |
5,770 | 73. Although regulations imposing anti-dumping duties are legislative in nature and scope, in that they apply to all economic operators, they may nevertheless be of individual concern not only to Community producers, as complainants ( Fediol v Commission , paragraphs 27 to 30), but also, in certain circumstances, to the producers and exporters of the product in question who are alleged to be dumping, and, in certain circumstances, to importers of that product (Joined Cases C-133/87 and C-150/87 Nashua Corporation and Others v Commission and Council [1990] ECR I-719, paragraphs 14 to 20). | 24 THE AGREEMENT DID, IN FACT, HAVE THE BENEFICIAL EFFECT OF CONCENTRATING THE SUPPLY OF AND DEMAND FOR FRUIT IMPORTED FROM THIRD COUNTRIES IN THE ROTTERDAM IMPORT AUCTIONS AND THUS OF ENSURING THE STABILITY OF THE MARKET, THE AVAILABILITY OF SUPPLIES AND THEIR REACHING CONSUMERS AT REASONABLE PRICES . | 0 |
5,771 | 29 It is true that, in ERT, cited above, the Court held that the articles of the Treaty relating to the free movement of goods do not preclude the granting to a single undertaking of exclusive rights relating to television broadcasting and the granting for that purpose of exclusive authority to import, hire or distribute material and products necessary for that broadcasting, provided that no discrimination is thereby created between domestic products and imported products to the detriment of the latter. | 58 As regards the question whether the inspections carried out by the Commission were sufficiently representative, it must be observed that, as the Commission has argued without being contradicted by the Greek Government, those inspections concerned, in relation to the peaches and nectarines sector in Greece, all the producers' organisations having their seat in the nomoi of Pella and Imathia, which account for 95% of production of peaches and nectarines on Greek territory and for 93.5% of the compensatory payments made in that respect. In the citrus fruits sector, the inspections concerned the nomoi of Argolida, Arta and Lefkada, the production of which gave rise to 74% of the compensatory payments. Having regard to those figures, the representative nature of the inspections made by the Commission and the extent of the irregularities cannot reasonably be cast in doubt (see Greece v Commission, cited above, paragraph 52). | 0 |
5,772 | 29. As regards, in the second place, the question of which regulation was applicable before the entry into force of Regulation No 794/2004 in order to determine whether the interest must be simple or compound, it should be noted that, in the judgment in Commission v Département du Loiret , C‑295/07 P, EU:C:2008:707, paragraph 46, the Court held that, at the time the decision at issue in the case giving rise to that judgment was adopted, namely on 12 July 2000, neither Community law nor the case-law of the Court or of the General Court specified whether the necessary interest on aid to be recovered was to be calculated on a simple or on a compound basis. In the absence of a provision under EU law on that subject, the Court held that the Commission’s practice, set out inter alia in its letter to the Member States SG (91) D/4577, of 4 March 1991, linked the question of charging interest to the procedural rules for recovery and referred, in that regard, to national law (judgment in Commission v Département du Loiret , C‑295/07, EU:C:2008:707, paragraphs 82 to 84). | 84. That letter thus linked the matter of charging interest to the procedural rules for recovery and referred in that regard to national law. It is only by the Commission communication concerning the obsolescence of certain State aid policy documents (OJ 2004 C 115, p. 1) that the Commission informed the Member States and interested third parties that it no longer intended to apply that letter, which, moreover, like the other documents covered by that communication, it referred to as ‘texts concerning procedural issues in the field of State aid’. | 1 |
5,773 | 55. Directive 89/48 seeks to remove obstacles to the pursuit of a profession in a Member State other than that which issued the diploma establishing the professional qualifications concerned. It is clear from the first, third and fifth recitals in the preamble to that directive that a certificate attesting professional qualifications cannot be treated in the same way as a ‘diploma’ for the purposes of that directive unless those qualifications were acquired, wholly or in part, under the education system of the Member State which issued the certificate in question. The Court has also stated that a diploma facilitates the taking-up or pursuit of a profession in so far as it proves the possession of an additional qualification (see, to that effect, Case C-19/92 Kraus [1993] ECR I-1663, paragraphs 18 to 23, and Case C-285/01 Burbaud [2003] ECR I-8219, paragraphs 47 to 53). | 48
Therefore, even if the letters by which the Commission simply claims from the addressees of a decision concerning the infringement of competition rules (such as the Methacrylates decision) the payment of the fine which is imposed by that decision, or default interest which may arise from it, those letters may, in principle, only constitute an enforcement notice of the decision concerned, and, therefore, are unable to produce binding legal effects of such a nature as to affect the interests of the undertakings concerned (see, to that effect, judgment of 6 December 2007, Commission v Ferriere Nord, C‑516/06 P, EU:C:2007:763, paragraph 29), that is not the case, having regard to their content, of the contested letters, in that they demand that the respondents pay default interest in spite of the payment in full of the original amount of the fine and, therefore, is, in fact, a modification of the pecuniary obligation for which they are liable. | 0 |
5,774 | 40. A taxable person acts as such where he acts for the purposes of his economic activity within the meaning of the second subparagraph of Article 9(1) of the VAT Directive (see, to that effect, Case C‑415/98 Bakcsi [2001] ECR I‑1831, paragraph 29). | 51. On the other hand, national courts do not have jurisdiction to give a decision on whether State aid is compatible with the common market. | 0 |
5,775 | 47. As regards, in particular, agreements of an anti-competitive nature reached, as in the present case, at meetings of competing undertakings, the Court has already held that an infringement of Article 81(1) EC is constituted when those meetings have as their object the restriction, prevention or distortion of competition and are thus intended to organise artificially the operation of the market ( Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 508 and 509). In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Case C-199/2 P Hüls v Commission [1999] ECR I‑4287, paragraph 155, and Aalborg Portland and Others v Commission , paragraph 81). | 56. Selon la jurisprudence de la Cour, cette compétence investit le juge communautaire de la mission de donner aux litiges dont il est saisi une solution complète (voir arrêt du 18 décembre 2007, Weißenfels/Parlement, C‑135/06 P, Rec. p. I‑12041, point 67). Elle lui permet, même en l’absence de conclusions régulières à cet effet, non seulement d’annuler, mais encore, s’il y a lieu, de condamner d’office la partie défenderesse au paiement d’une indemnité pour le dommage moral causé par sa faute de service (voir, en ce sens, arrêts du 16 décembre 1960, Fiddelaar/Commission, 44/59, Rec. p. 1077, 1093; du 9 juillet 1970, Fiehn/Commission, 23/69, Rec. p. 547, point 17, ainsi que du 27 octobre 1987, Houyoux et Guery/Commission, 176/86 et 177/86, Rec. p. 4333, point 16). | 0 |
5,776 | 53
However, the Court explained that Directive 2008/115 does not does not preclude a third-country national being placed in administrative detention with a view to determining whether or not his stay is legal. In that regard, the competent authorities are required to act with diligence and take a position without delay on the legality of the stay of the person concerned (see, to this effect, judgment of 6 December 2011 in Achughbabian, C‑329/11, EU:C:2011:807, paragraphs 29 to 31). | 54. The claimants in the main proceedings none the less point out that when, under the relevant United Kingdom legislation, a nationally‑sourced dividend is paid, it is exempt from corporation tax in the hands of the company receiving it, irrespective of the tax paid by the company making the distribution, that is to say, it is also exempt when, by reason of the reliefs available to it, the latter has no liability to tax or pays corporation tax at a rate lower than that which normally applies in the United Kingdom. | 0 |
5,777 | 42. Finally, the Court considered that to allow the transferor or transferee the possibility of choosing the date from which the contract of employment or employment relationship is transferred would amount to allowing employers to derogate, at least temporarily, from the provisions of Directive 77/187, whereas those provisions are mandatory, and it is thus not possible to derogate from them in a manner unfavourable to employees ( Rotsart de Hertaing , paragraphs 17 and 25). | 23. Tel est le cas dès lors que les dispositions du droit de l’Union en cause ont été rendues applicables de manière directe et inconditionnelle, par le droit national, à de telles situations (voir, en ce sens, arrêts précités Cicala, point 19, et Nolan, point 47). | 0 |
5,778 | 28. It is true that the transport services listed in Article 2(1)(a) to (c) of Regulation No 3577/92 are described as having different departure and arrival ports. However, that list, which is introduced by the term ‘in particular’, is not e xhaustive and cannot have the effect of excluding from the scope of that regulation transport services having all the essential characteristics of maritime cabotage contained in the above-mentioned phrase ‘maritime transport services within a Member State’ (see, to that effect, Case C‑251/04 Commission v Greece EU:C:2007:5, paragraphs 28 and 32). | 110. It follows that, in so far as the rejection by the General Court of the action for damages brought by Artegodan is based on other grounds, the errors of law referred to in paragraphs 82 and 93 of the present judgment are not such as to invalidate the contested judgment (see, to that effect, Case C‑412/05 P Alcon v OHIM [2007] ECR I‑3569, paragraph 41). | 0 |
5,779 | 21
Furthermore, according to settled case-law of the Court, since comparative advertising contributes to demonstrating, in an objective manner, the advantages of various comparable goods and thus to stimulating competition between suppliers of goods and services to the consumer’s advantage, the conditions to be met for such advertising must be interpreted in the sense most favourable to that advertising, while ensuring at the same time that comparative advertising is not used anticompetitively and unfairly or in a manner which affects adversely the interests of consumers (see, to that effect, judgments of 25 October 2001, Toshiba Europe, C‑112/99, EU:C:2001:566, paragraphs 36 and 37; of 19 September 2006, Lidl Belgium, C‑356/04, EU:C:2006:585, paragraph 22; and of 18 November 2010, Lidl, C‑159/09, EU:C:2010:696, paragraphs 20 and 21 and the case-law cited). | 31. The principle of equality of arms, which is a corollary of the very concept of a fair hearing and the aim of which is to ensure a balance between the parties to proceedings, guaranteeing that any document submitted to the court may be examined and challenged by any party to the proceedings, implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent ( Otis and Others , C‑199/11, EU:C:2012:684, paragraphs 71 and 72). | 0 |
5,780 | 62. En vertu de l’article 11 des règlements n os 1552/89 et 1150/2000, tout retard dans les inscriptions au compte visé à l’article 9, paragraphe 1, des mêmes règlements donne lieu au paiement par l’État membre concerné d’intérêts applicables à toute la période du retard (voir, notamment, arrêts du 14 avril 2005, Commission/Pays-Bas, C‑460/01, Rec. p. I‑2613, point 91, ainsi que Commission/Allemagne, précité, point 94 et jurisprudence citée), indépendamment de la raison du retard et d’un délai fixé par la Commission pour la mise à disposition des ressources propres (voir, notamment, arrêt Commission/Allemagne, précité, points 93 et 95). | 91. Under Article 11 of Regulation No 1552/89, any delay in making the entry in the account referred to in Article 9(1) of that regulation gives rise to the payment of default interest by the Member State concerned at the interest rate applicable to the entire period of delay. That interest is payable in respect of any delay, regardless of the reason for the delay in making the entry in the Commission’s account (see, inter alia, Case C-96/89 Commission v Netherlands [1991] ECR I‑2461, paragraph 38, and Case C-363/00 Commission v Italy [2003] ECR I-5767, paragraph 44). | 1 |
5,781 | 34
Moreover, it must be pointed out that it is not for the Court to rule on the interpretation of provisions of national law, that being exclusively for the referring court or, as the case may be, the national courts having jurisdiction, which must determine whether the requirements set out in clause 5 of the framework agreement are met by the provisions of the applicable national legislation (judgments of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 66 and the case-law cited, and of 26 November 2014, Mascolo and Others, C‑22/13, C‑61/13, C‑63/13 and C‑418/13, EU:C:2014:2401, paragraph 81). | 96. In accordance with Article 100(5) of Regulation No 1083/2006, the Commission is to take a decision on the financial correction within six months of the date of the hearing, and, if no hearing takes place, the six-month period is to begin to run two months after the date of the letter of invitation sent by the Commission. | 0 |
5,782 | 74. However, that right is none the less subject to certain limitations based on grounds of public or private interest. More specifically, and in reflection of recital 11 in the preamble thereto, Article 4 of Regulation No 1049/2001 provides that the institutions are to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision (see, to that effect, Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 62; Sweden and Others v API and Commission , paragraphs 70 and 71). | 68. According to settled case-law, the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it ( Arnold André , paragraph 45, and Swedish Match , paragraph 47). | 0 |
5,783 | 24. It should also be recalled that it is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, in particular, Case C‑396/02 DFDS [2004] ECR I‑8439, paragraph 27; Case C‑495/03 Intermodal Transports [2005] ECR I‑8151, paragraph 47; and Case C‑183/06 RUMA [2007] ECR I‑1559, paragraph 27). | 36. In that regard, the fact that the beneficiary of the agri-environmental aid continued to fulfil the other conditions for the grant of that aid, and in particular his obligations relating to the use of the areas concerned, cannot prevent the exclusion from the benefit of that aid to which failure to comply with one of those conditions gives rise. The grant of that aid is subject to compliance with all of the eligibility conditions throughout the duration of the agri-environmental project to which that beneficiary has committed, with the result that failure to comply with one of those conditions is sufficient, in itself, to give rise to that exclusion. | 0 |
5,784 | 28 In those circumstances, an institution empowered to find that there has been an infringement and to impose a sanction in respect of it and to which private persons may make complaint, as is the case with the Commission in the field of competition, necessarily adopts a measure producing legal effects when it terminates, wholly or in part, an investigation initiated upon a complaint by such a person (see the judgment in Case C-39/93 P SFEI and Others v Commission [1994] ECR I-2681, paragraph 27, and the case-law cited). | 50. That rule requires the applicant to provide OHIM not only with particulars showing that he satisfies the necessary conditions, in accordance with the national law of which he is seeking application, in order to be able to have the use of a Community trade mark prohibited by virtue of an earlier right, but also particulars establishing the content of that law. | 0 |
5,785 | 29. First, it should be recalled that it is clear, both from the case-law of the Court and from Article 152(5) EC, that Community law does not detract from the power of the Member States to organise their social security systems and to adopt, in particular, provisions intended to govern the organisation and delivery of health services and medical care. In exercising that power, however, the Member States must comply with Community law, in particular the provisions of the Treaty on the freedoms of movement, including freedom of establishment. Those provisions prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of those freedoms in the healthcare sector (see, to that effect, Case 238/82 Duphar and Others [1984] ECR 523, paragraph 16; Case C‑372/04 Watts [2006] ECR I‑4325, paragraphs 92 and 146; and Case C‑141/07 Commission v Germany [2008] ECR I‑0000, paragraphs 22 and 23). | 14 The first question which arises is whether the annulment or avoidance (Anfechtung) of an employment contract in a case such as this constitutes direct discrimination on grounds of sex for the purposes of the directive. To that end, it must be established whether the fundamental reason for the annulment or avoidance of the contract applies without distinction to workers of both sexes or, on the contrary, to one sex only. | 0 |
5,786 | 69. Furthermore, to assume that all the shareholders of a public limited company are engaged professionally in the sector within which the company objects fall is the very negation of the free movement of capital, which applies inter alia to portfolio investments, that is to say, the acquisition of securities on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking (Joined Cases C-282/04 and C-283/04 Commission v Netherlands [2006] ECR I‑9141, paragraph 19). It is precisely this type of investment that investors from other Member States who are seeking to diversify their investments would be liable to make. | 16 Regulation No 543/69 must therefore be regarded as not precluding the application of national provisions penalizing an employer whose drivers have infringed Articles 7(2 ) and 11 of the regulation, even though that infringement cannot be imputed to an intentional wrongful act or to negligence on the employer' s part . | 0 |
5,787 | 25. That principle requires, in particular, that the special rules on jurisdiction be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued (see GIE Groupe Concorde and Others , paragraph 24; Besix , paragraph 26; and Owusu , paragraph 40). | 16 Where a sub-buyer of goods purchased from an intermediate seller brings an action against the manufacturer for damages on the ground that the goods are not in conformity, it must be observed that there is no contractual relationship between the sub-buyer and the manufacturer because the latter has not undertaken any contractual obligation towards the former. | 0 |
5,788 | 54
Nevertheless, while guarantee institutions must thus take responsibility for outstanding pay, pursuant inter alia to Article 3 of Directive 2008/94, it is for national law to specify what is meant by the term ‘pay’ and to define what it includes (see judgment of 16 July 2009, Visciano, C‑69/08, EU:C:2009:468, paragraph 28 and the case-law cited). | 20 As regards the second condition, it is not disputed that Regulation No 2806/87 was adopted in view of the quantities of beef and veal in respect of which individual applications for import licences had been lodged in the first 10 days of the month of September 1987 . | 0 |
5,789 | 64. As regards the fourth part of the plea, the Court of First Instance correctly interpreted the judgment in Spain v Commission , paragraphs 12 to 20, when it stated that the effect of that judgment is that a decision to initiate the procedure for examining State aid produces legal effects as referred to in Article 230 EC. Specific legal consequences flow from the assessment and classification of the aid mentioned and from the choice of procedure which follows from that. By contrast, the mere fact that, by the contested decisions, the Commission made a choice as to the procedure to be undertaken against the appellants and thus excluded other procedures cannot, in itself, be a legal effect for the purposes of that article. | 19 It also appears from the order for reference that persons employed under the Social Employment Law are not selected on the basis of their capacity to perform a certain activity; on the contrary, it is the activities which are chosen in the light of the capabilities of the persons who are going to perform them in order to maintain, re-establish or develop their capacity for work . Finally, the activities involved are pursued in the framework of undertakings or work associations created solely for that purpose by local authorities . | 0 |
5,790 | 21. To determine whether that is so, in the absence of Community rules at the material time, it is for the national court to take into account national commercial practices and traditional cutting methods.
"
9. Following the judgment in Voogd Vleesimport en -export , cited above, Kühne & Heitz requested from the Productschap payment of the refunds which the latter had, in its view, wrongly required it to reimburse and sought payment of a sum equivalent to the greater amount which it would have received by way of refunds if the chicken legs exported after December 1987 had been classified in accordance with that judgment.
10. The Productschap rejected those requests and, ruling on the complaint submitted to it, upheld its earlier decision to reject, by decision of 21 July 1997. Kühne & Heitz then brought an action against that latter decision, which is the subject of the main proceedings.
The order for reference and the question referred for a preliminary ruling
11. In its order for reference, the College van Beroep voor het bedrijfsleven rejected the second head of claim submitted to it by Kühne & Heitz for payment of a sum equivalent to the greater amount to which, in its view, it is entitled in respect of its exports after December 1987.
12. With respect to the first head of claim submitted by Kühne & Heitz for payment of the refunds which, in its view, it had been wrongly required to reimburse, the College van Beroep voor het bedrijfsleven stated that under Netherlands law, administrative bodies, in principle, always have the power to reopen a final decision. The existence of such a power may, in certain circumstances, imply an obligation to withdraw such a decision.
13. The College van Beroep voor het bedrijfsleven takes the view that the Productschap failed to take account of those factors when it claimed that Kühne & Heitz could bring only one action for revision of the judgment of 22 November 1991 before that court. The Productschap therefore relied on a misinterpretation of the law.
14. However, the College van Beroep voor het bedrijfsleven considered that, although it was, in principle, possible to annul the decision of 21 July 1997 on that ground, such annulment would serve a purpose only if it were certain that the Productschap not only had the power to reopen its previous decision but also an obligation to review whether there is, in the case of each of the exported goods, a right to a refund and, if so, to determine the amount of that refund.
15. The College van Beroep voor het bedrijfsleven observes that the assessment of whether there is an obligation to review must be based on the principle that judicial decisions given subsequent to a final administrative decision cannot, in themselves, affect the finality of that decision. That applies equally in the case of preliminary rulings given by the Court of Justice to the effect that the law ought to have been applied in accordance with the interpretation given by the Court from the entry into force of the rule interpreted, unless the Court has expressly held otherwise. The national court states that the argument seeking to establish a rule that final decisions must be amended in order to make them consistent with subsequent case-law ─ in the present case, Community case-law ─ would give rise to administrative chaos, seriously impair legal certainty and therefore cannot be accepted.
16. However, the College van Beroep voor het bedrijfsleven points out that, under Netherlands law, subsequent case-law may, in certain circumstances, have an effect in cases in which the legal remedies have been exhausted. It refers to the case-law of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) on the effects in criminal-law cases of judgments given by the European Court of Human Rights. The Hoge Raad der Nederlanden thus held, in a judgment of 1 February 1991 (Nederlandse Jurisprudentie ─ NJ ─ 1991, p. 413), that the subsequent discovery of an infringement of a fundamental right laid down in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is one determining factor which may preclude enforcement of a decision given in a criminal law case which cannot be the subject of an appeal.
17. The College van Beroep voor het bedrijfsleven is uncertain whether the finality of an administrative decision must be disregarded in a case such as that which has been brought before it in which, first, Kühne & Heitz has exhausted the legal remedies available to it, second, its interpretation of Community law has proved to be contrary to a judgment given subsequently by the Court and, third, the person concerned complained to the administrative body immediately after becoming aware of that judgment of the Court.
18. That question is justified in the light of, in particular, Article 234 EC, according to which a national court against whose decision there is no judicial remedy is obliged to refer the question to the Court for a preliminary ruling. In 1991, the College van Beroep voor het bedrijfsleven mistakenly took the view that it was released from that obligation because, in accordance with the judgment in Case 283/81 CILFIT [1982] ECR 3415, it considered that the interpretation of the customs tariff subheadings concerned left no room for doubt. The national court is therefore uncertain whether effective and full implementation of Community law requires that, in a case such as that which has been brought before it, the rule on the finality of administrative decisions be relaxed.
19. In the light of those factors, the College van Beroep voor het bedrijfsleven decided to stay proceedings and refer the following question to the Court for a preliminary ruling:
" Under Community law, in particular under the principle of Community solidarity contained in Article 10 EC, and in the circumstances described in the grounds of this decision, is an administrative body required to reopen a decision which has become final in order to ensure the full operation of Community law, as it is to be interpreted in the light of a subsequent preliminary ruling?"
The question referred for a preliminary ruling
20. As the Court has already held, it is for all the authorities of the Member States to ensure observance of the rules of Community law within the sphere of their competence (see Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraph 13).
21. The interpretation which, in the exercise of the jurisdiction conferred on it by Article 234 EC, the Court gives to a rule of Community law clarifies and defines, where necessary, the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force (see, inter alia, Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 16, and Case C-50/96 Deutsche Telekom [2000] ECR I-743, paragraph 43). | 22. Any person is thus entitled to claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 101 TFEU ( Manfredi and Others EU:C:2006:461 paragraph 61, and Otis and Others EU:C:2012:684, paragraph 43). | 0 |
5,791 | 114 Accordingly, the plea must be rejected.
The fourth plea in law: infringement of Article 12 of the Staff Regulations
16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis.
17 So far as this plea in law is concerned, the Court of First Instance held as follows:
124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66).
125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position.
126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book.
127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations.
128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty.
129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41).
130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47).
131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials.
132 It follows that the plea must be rejected.
The fifth plea in law: infringement of Article 17 of the Staff Regulations
18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II.
19 The Court of First Instance rejected this plea for the following reasons:
147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression.
148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73).
149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials.
150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions.
151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect.
152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned.
153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties.
154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation.
155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression.
156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected.
157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication.
158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations.
...
160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations.
161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument.
162 Consequently, the plea must be rejected.
The sixth plea in law: manifest error of assessment and breach of the principle of proportionality
20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances.
21 The Court of First Instance held as follows:
165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34).
166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established.
167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed.
168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded.
169 Consequently, the plea must be rejected.
The seventh plea in law: misuse of powers
22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers.
23 In rejecting this plea, the Court of First Instance gave the following grounds:
171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88).
172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings.
173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas.
174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers.
175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected.
24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages.
25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs.
The appeal
26 Mr Connolly claims that the Court of Justice should:
set aside the contested judgment;
annul so far as necessary the opinion of the Disciplinary Board;
annul the contested decision;
annul the decision of 12 July 1996 rejecting his administrative complaint;
order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage;
order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings.
27 The Commission contends that the Court of Justice should:
dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded;
dismiss the claim for damages as inadmissible and unfounded;
order Mr Connolly to pay the costs in their entirety.
28 In his appeal the appellant puts forward 13 grounds of appeal.
The first ground of appeal
29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights).
30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review.
31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission.
32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC.
33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected.
The admissibility of the ground of appeal
34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression.
35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression.
36 The first ground of appeal must therefore be held to be admissible.
Substance
37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41).
38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52).
40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60).
42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49).
43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution.
44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees.
45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124).
46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively.
47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th | 45 THE FACTS ALLEGED AGAINST THE APPLICANT HAVING BEEN ESTABLISHED, THE CHOICE OF APPROPRIATE DISCIPLINARY MEASURE IS A MATTER FOR THE DISCIPLINARY AUTHORITY . | 1 |
5,792 | 108. The functions of notaries in connection with the attachment of immovable property can thus be seen to be exercised under the supervision of the court, to which the notary must refer any disputes, and which takes the final decision. Those functions cannot therefore be regarded as directly and specifically connected, as such, with the exercise of official authority (see, to that effect, Thijssen , paragraph 21; Case C‑393/05 Commission v Austria , paragraphs 41 and 42; Commission v Germany , paragraphs 43 and 44; and Commission v Portugal , paragraphs 37 and 41). | 45. That interpretation is confirmed by the objective pursued by the legislature of the European Union in adopting Regulation No 320/2006. As is apparent, in particular, from recitals 1 and 5 in the preamble to that regulation, that objective is to restructure the sugar sector in order to reduce unprofitable production capacity in the European Union by introducing an economic incentive, in the form of a restructuring aid, for undertakings with the lowest productivity, to give up their quota production and renounce the quotas concerned (see, to that effect, Case C‑33/08 Agrana Zucker [2009] ECR I‑5035, paragraph 22). | 0 |
5,793 | 70. As to the United Kingdom’s argument that the limiting of cross-undertakings could result in infringement of the right to property, the Court consistently acknowledges that the right to property is not an absolute right, but must be viewed in relation to its social function. Its exercise may therefore be restricted, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, disproportionate and intolerable interference, impairing the very substance of the right guaranteed (see, to this effect, Križan and Others , paragraph 113 and the case-law cited). Protection of the environment is one of those objectives and is therefore capable of justifying a restriction on the exercise of the right to property (see, also, to this effect, Križan and Others , paragraph 114 and the case-law cited). | 16 Such a requirement is not contrary to Article 106 ( 1 ) of the Treaty . Under that provision, the Member State in which the importer resides must authorize him to pay the exporter in the currency of the Member State in which the latter resides . Rules such as those at issue do not raise an impediment to the possibility either for the importer to make payment in the currency of the State in which the buyer resides or for the exporter to receive that payment . Such rules deal solely with the way in which the exporter must receive payment, regardless of whether that payment is expressed in foreign or national currency . | 0 |
5,794 | 53. When assessing the generic character of a name, the Court has held that it is necessary, under Article 3(1) of Regulation 2081/92, to take into account the places of production of the product concerned both inside and outside the Member State which obtained the registration of the name at issue, the consumption of that product and how it is perceived by consumers inside and outside that Member State, the existence of national legislation specifically relating to that product, and the way in which the name has been used in Community law (see Joined Cases C-465/02 and C-466/02 Germany and Denmark v Commission [2005] ECR I-9115, paragraphs 76 to 99). | 107. In that regard, it must be pointed out that, for the purposes of that directive, the expression ‘withholding tax’ is not restricted to certain specific types of national taxes and that the categorisation of a tax, duty or charge must be determined by the Court, under Community law, according to the objective characteristics by which it is levied, irrespective of its classification under national law (see, inter alia, Athinaïki Zythopoiïa , paragraphs 26 and 27, and Case C-58/01 Océ Van der Grinten [2003] ECR I‑9809, paragraph 46). | 0 |
5,795 | 143. In that regard, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement (see Aalborg Portland and Others v Commission , cited above, paragraph 84). | 18. In connection with rules similar to those covered by the Commission’s first complaint, and faced with defence arguments similar to those relied on by the Netherlands Government, the Court has ruled that such a restriction cannot be justified since, by excluding consideration of the obligations to which the trans-frontier service provider is already subject in the Member State in which it is established, it goes in any event beyond what is necessary to attain the objectives sought, namely to ensure close supervision of those activities ( Commission v Belgium , cited above, paragraphs 36 to 38, and Case C-171/02 Commission v Portugal [2004] ECR I‑0000, paragraph 60). The same conclusion must apply as regards the rules covered by the Commission’s second complaint, namely the condition requiring that the managers of the undertakings in question obtain an authorisation. | 0 |
5,796 | 25. It follows that if digital reproduction equipment, devices and media are made available to natural person as private users, the simple fact that that equipment is able to make copies is sufficient in itself to justify the application of the private copying levy (see, to that effect, judgment in Padawan , EU:C:2010:620, paragraph 56). | 37. In the present context, it must be held that, on the date on which the appellant in the main proceedings in Case C‑261/08 was officially accused of being unlawfully present on Spanish territory, namely 26 September 2006, Regulation No 562/2006 had not yet entered into force, with the result that the issue as to whether that regulation needs to be interpreted may arise in relation to the facts giving rise to that case. | 0 |
5,797 | 62 That conclusion cannot be undermined by the fact, pointed out by the referring court, that the financial burden arising from the obligation to purchase at minimum prices is likely to have negative repercussions on the economic results of the undertakings subject to that obligation and therefore entail a diminution in tax receipts for the State. That consequence is an inherent feature of such a legislative provision and cannot be regarded as constituting a means of granting to producers of electricity from renewable energy sources a particular advantage at the expense of the State (see, to that effect, Sloman Neptun, paragraph 21, and Ecotrade, paragraph 36). | 36. It should be noted that, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with European Union law (see, inter alia, Case C‑319/02 Manninen [2004] ECR I‑7477, paragraph 19 and the case‑law cited). | 0 |
5,798 | 51. A cash-flow disadvantage which arises from a cross-border situation can form a restriction on a fundamental freedom where such a disadvantage does not arise in a purely national situation (see, to that effect, judgments in Metallgesellschaft and Others , C‑397/98 and C‑410/98, EU:C:2001:134, paragraphs 44, 54 and 76; X and Y , C‑436/00, EU:C:2002:704, paragraphs 36 and 37; Rewe Zentralfinanz , C‑347/04, EU:C:2007:194, paragraphs 26 to 30; National Grid Indus , C‑371/10, EU:C:2011:785, paragraphs 36 and 37; DMC , C‑164/12, EU:C:2014:20, paragraphs 40 to 43; and Commission v Germany , C‑591/13, EU:C:2015:230, paragraphs 55 to 61). | 52
That protection may be invoked by a relevant person, such as Berlioz, in respect of a measure adversely affecting him, such as the information order and the penalty at issue in the main proceedings, so that a relevant person can rely on a right guaranteed by EU law, within the meaning of Article 47 of the Charter, giving him the right to an effective remedy. | 0 |
5,799 | 27. In that regard, it is also apparent from case-law that the rules regarding equality of treatment between nationals and non-nationals prohibit not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead to the same result (see, inter alia, Case C‑29/95 Pastoors and Trans-Cap [1997] ECR I-285, paragraph 16; Case C‑224/00 Commission v Italy [2002] ECR I-2965, paragraph 15; and Case C‑28/04 Tod’s and Tod’s France [2005] ECR I‑5781, paragraph 19). | 15 According to settled case-law, the rules regarding equality of treatment between nationals and non-nationals forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead to the same result (see Pastoors and Trans-Cap, paragraph 16). | 1 |
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