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5,900 | 31. The general principle of equal treatment, as a general principle of Community law, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case 106/83 Sermide [1984] ECR 4209, paragraph 28; Joined Cases C‑133/93, C‑300/93 and C‑362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraphs 50 and 51; Case C‑313/04 Franz Egenberger [2006] ECR I‑6331, paragraph 33, and Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑9895, paragraph 23). | 19 Il y a lieu de constater que, d' après les indications scientifiques fournies par la Commission pour les espèces susmentionnées, il est possible qu' une partie importante des oisillons de trois des espèces citées, en l' occurrence les jeunes foulques macroules, poules d' eau et canards colverts, se trouvent encore au nid ou en état de dépendance alimentaire à la date du 18 août . Par contre, il ressort de ces mêmes données que les jeunes merles atteignent leur indépendance avant cette date . | 0 |
5,901 | 83. First, there is no such direct link when it is a question, in particular, of different taxes or the tax treatment of different taxpayers (see, to that effect, judgments in DI. VI. Finanziaria di Diego della Valle & C. , C‑380/11, EU:C:2012:552, paragraph 47, and Grünewald , C‑559/13, EU:C:2015:109, paragraph 49). That is the case here since the deduction of the amount corresponding to the gifts made by the private foundation subject to the interim tax and the taxation of the beneficiaries for those gifts necessarily concern different taxpayers. | 11 ALTHOUGH ARTICLE 5 OF DIRECTIVE 75/439/EEC MAY THEREFORE BE INTERPRETED AS AUTHORIZING MEMBER STATES , IF THEY SO WISH , TO GRANT AN EXCLUSIVE RIGHT TO ONE OR MORE UNDERTAKINGS TO COLLECT OR DISPOSE OF OILS IN THE ZONE WHICH IS ALLOTTED TO THEM , SUCH A RIGHT DOES NOT AUTOMATICALLY AUTHORIZE THE GOVERNMENTS OF THE MEMBER STATES TO ESTABLISH BARRIERS TO EXPORTS . INDEED , SUCH A PARTITIONING OF THE MARKETS IS NEITHER CONTEMPLATED IN THE COUNCIL DIRECTIVE NOR COMPATIBLE WITH THE OBJECTIVES SET OUT THEREIN .
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5,902 | 17. The rights granted by the second paragraph of Article 7 of Decision No 1/80 to the child of a Turkish worker with regard to employment in the host Member State necessarily imply the existence of a concomitant right of residence for that child, without which the right to have access to the employment market and actually to take up paid employment would be rendered totally ineffective ( Eroglu , paragraphs 20 and 23, and Torun , paragraph 20). | 43. Nor, moreover, is such a rule expressly laid down elsewhere in the Customs Code or in the Implementing Regulation. | 0 |
5,903 | 23. The Court has consistently held that it can refrain from giving a preliminary ruling on a question submitted by a national court only where, inter alia, it is quite obvious that the interpretation of European Union law sought by that court bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical or 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, Case C-439/08 VEBIC [2010] ECR I-0000, paragraph 42 and the case‑law cited). | 61 WHERE NO SUCH REMEDY IS AVAILABLE , OR WHERE IT IS AVAILABLE BUT CANNOT HAVE SUSPENSORY EFFECT , THE DECISION CANNOT BE TAKEN - SAVE IN CASES OR URGENCY WHICH HAVE BEEN PROPERLY JUSTIFIED - UNTIL THE PARTY CONCERNED HAS HAD THE OPPORTUNITY OF APPEALING TO THE AUTHORITY DESIGNATED IN ARTICLE 9 OF DIRECTIVE NO 64/221 AND UNTIL THIS AUTHORITY HAS REACHED A DECISION .
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5,904 | 78. It is clear from the case-law of the Court that three conditions must be satisfied for a Member State to be required to make good the loss and damage caused to individuals: the rule of law infringed must have been intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the loss or damage sustained by the injured parties. Those conditions are to be applied according to each type of situation (Joined Cases C‑46/93 and C‑48/93 Brasserie du Pêcheur and Factortame [1996] ECR I‑1029, paragraph 51; Case C‑127/95 Norbrook Laboratories [1998] ECR I‑1531, paragraph 107; and Case C‑424/97 Haim [2000] ECR I‑5123, paragraph 36). | 45. A contract of employment may therefore be terminated only after the conclusion of the consultation procedure, that is to say, after the employer has complied with the obligations set out in Article 2 of the directive. | 0 |
5,905 | 27. In that regard, the Court has already in essence ruled, in Case C‑39/94 SFEI and Others [1996] ECR I‑3547, paragraphs 44 and 50 to 53, that:
– the initiation by the Commission of an examination procedure cannot release national courts from their duty to safeguard the rights of individuals in the event of a breach of the requirement to give prior notification;
– where it is likely that some time will elapse before it gives its final judgment, for example, where it seeks clarification from the Commission for the purposes of interpreting the concept of State aid which it may have cause to grant or where it refers a question to the Court for a preliminary ruling, the national court must decide whether it is necessary to order interim measures in order to safeguard the interests of the parties. | 54. Moreover, such factors can be considered appropriate to achieve the stated aim only if they genuinely reflect a concern to attain that aim and are pursued in a consistent and systematic manner ( Hartlauer , C‑169/07, EU:C:2009:141, paragraph 55; Georgiev , C‑250/09 and C‑268/09, EU:C:2010:699, paragraph 56; Fuchs and Köhler , C‑159/10 and C‑160/10, EU:C:2011:508, paragraph 85; and Brachner , EU:C:2011:675, paragraph 71). | 0 |
5,906 | 75. The Court has thus acknowledged in particular that, in the area of games and bets, excesses in which have damaging social consequences, national regulations seeking to prevent the stimulation of demand by limiting the human passion for gambling could be justified ( Schindler , paragraphs 57 and 58; Läärä and Others , paragraphs 32 and 33; and Zenatti , paragraphs 30 and 31). | 47. Il y a donc lieu de distinguer les traitements différents permis au titre de l’article 65, paragraphe 1, sous a), TFUE des discriminations arbitraires interdites en vertu du paragraphe 3 de ce même article. Or, il ressort d’une jurisprudence constante de la Cour que, pour qu’une réglementation fiscale nationale qui, aux fins du calcul des droits sur les donations ou les successions, opère une distinction en ce qui concerne le montant de l’abattement applicable à la base imposable d’un bien immeuble sis dans l’État membre concerné selon que le défunt, le donateur ou le bénéficiaire résidaient dans cet État membre ou selon qu’ils résidaient tous dans un autre État membre puisse être considérée comme compatible avec les dispositions du traité relatives à la libre circulation des capitaux, il est nécessaire que la différence de traitement concerne des situations qui ne sont pas objectivement comparables ou soit justifiée par une raison impérieuse d’intérêt général. En outre, pour être justifiée, la différence de traitement ne doit pas aller au-delà de ce qui est nécessaire pour que l’objectif poursuivi par la réglementation en cause soit atteint (voir, en ce sens, arrêt Welte, EU:C:2013:662, point 44 et jurisprudence citée).
i) Sur la comparabilité des situations en cause | 0 |
5,907 | 27 That interpretation is confirmed by the second sentence of Article 130r(2), pursuant to which environmental protection requirements are to be a component of the Community' s other policies. That provision, which expresses the principle that all Community measures must satisfy the requirements of environmental protection, implies that a Community measure cannot be part of Community action on environmental matters merely because it takes account of those requirements (Greece v Council, cited above, paragraph 20, C-300/89 Commission v Council [1991] ECR I-2867, paragraph 22). | 38 It follows that the amendments made in 1995 to the 1949 Agreement and 1980 Protocol have had the effect of creating the framework of a more intensive cooperation between the United States of America and the Republic of Finland, which entails new and significant international commitments for the latter. | 0 |
5,908 | 25. En outre, la République hellénique fait valoir qu’il ressort de l’arrêt Standley e.a. (C-293/97, EU:C:1999:215, points 35 à 39) que la directive 91/676 ne s’applique qu’aux seuls cas où la pollution d’origine agricole contribue de manière significative à la pollution des eaux. Il ressortirait de cette même jurisprudence que cette directive peut être appliquée de manière différente par les États membres et que le droit de l’Union ne pourrait fournir de critères précis permettant de vérifier, dans chaque cas d’espèce, si la pollution d’origine agricole contribue de manière significative à la pollution des eaux. | 42
The Court has held that the fundamental principle of the neutrality of VAT requires deduction of input VAT to be allowed if the substantive requirements are satisfied, even if the taxable persons have failed to comply with some formal conditions. Consequently, where the tax authorities have the information necessary to establish that the substantive requirements have been satisfied, they cannot, in relation to the right of the taxable person to deduct that tax, impose additional conditions which may have the effect of rendering that right ineffective for practical purposes (see, to that effect, judgments of 21 October 2010, Nidera Handelscompagnie, C‑385/09, EU:C:2010:627, paragraph 42; of 1 March 2012, Kopalnia Odkrywkowa Polski Trawertyn P. Granatowicz, M. Wąsiewicz, C‑280/10, EU:C:2012:107, paragraph 43, and of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraphs 58 and 59 and the case-law cited). | 0 |
5,909 | 36. In the present case, by its first ground of appeal, Elf Aquitaine claims, not that the General Court denied the ‘criminal’ nature – within the meaning of the case-law based on Article 6 of the ECHR – of fines imposed under Article 81 EC, but essentially that it breached the fundamental rights accruing to Elf Aquitaine as a legal person held liable for an infringement attracting penalties which, in its view, are of a criminal nature. To the extent that, seen in that light, the present ground of appeal does not change the subject-matter of the proceedings before the General Court, it cannot be rejected as inadmissible (see, by analogy, Case C‑229/05 PKK and KNK v Council [2007] ECR I‑439, paragraphs 66 and 67). | 57. To that end, the Community legislature has considerably expanded, in Regulation No 1612/68 and in the directives on freedom of movement for persons adopted before Directive 2004/38, the application of Community law on entry into and residence in the territory of the Member States to nationals of non-member countries who are spouses of nationals of Member States (see, to that effect, Case C‑503/03 Commission v Spain , paragraph 41). | 0 |
5,910 | 29. In the second place, as regards the alleged incompatibility between the national proceedings and the system established by Articles 263 TFEU and 267 TFEU, the Court has, on a number of occasions, ruled on the admissibility of requests for a preliminary ruling concerning the validity of secondary legislation which have been made in judicial review proceedings brought under United Kingdom law. The Court, relying on the fact that, under national law, the persons concerned were able to make an application for judicial review of the legality of the intention or obligation of the United Kingdom Government to comply with EU legislation, has concluded that the opportunity open to individuals to plead the invalidity of an EU act of general application before national courts is not conditional upon that act actually having been the subject of implementing measures adopted pursuant to national law. In that respect, it is sufficient if the national court is seised of a genuine dispute in which the question of the validity of such an act is raised on indirect grounds (see, to that effect, judgments in British American Tobacco (Investments) and Imperial Tobacco , C‑491/01, EU:C:2002:741, paragraphs 36 and 40, and Intertanko and Others , C‑308/06, EU:C:2008:312, paragraphs 33 and 34). It is clear from the order for reference that that is indeed the case here. | 25 THIS QUESTION IS ALL THE MORE IMPORTANT BECAUSE PARALLEL IMPORTERS ARE VERY OFTEN IN A POSITION TO OFFER THE GOODS AT A PRICE LOWER THAN THE ONE APPLIED BY THE DULY APPOINTED IMPORTER FOR THE SAME PRODUCT , A FACT WHICH , WHERE MEDICINAL PREPARATIONS ARE CONCERNED , SHOULD , WHERE APPROPRIATE , ENCOURAGE THE PUBLIC HEALTH AUTHORITIES NOT TO PLACE PARALLEL IMPORTS AT A DISADVANTAGE , SINCE THE EFFECTIVE PROTECTION OF HEALTH AND LIKE OF HUMANS ALSO DEMANDS THAT MEDICINAL PREPARATIONS SHOULD BE SOLD AT REASONABLE PRICES .
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5,911 | 24. The Court has however accepted that, given the practical difficulties in identifying private users and obliging them to compensate the holders of the exclusive right of reproduction for the harm caused to them, it is open to the Member States to establish a ‘private copying levy’ for the purposes of financing fair compensation, chargeable not to the private persons concerned but to those who have the digital reproduction equipment, devices and media and who, on that basis, in law or in fact, make that equipment available to private users or who provide copying services for them. Under such a system, it is the persons having that equipment who must discharge the private copying levy ( Padawan , paragraph 46, and Stichting de Thuiskopie , paragraph 27). | 15 L' ANALYSE DE L' ECONOMIE ET DE L' OBJECTIF DES DISPOSITIONS DES ARTICLES 3 ET 4 DU REGLEMENT N* 857/84 DU CONSEIL FAIT APPARAITRE QU' ELLES ENUMERENT DE FACON LIMITATIVE LES SITUATIONS DANS LESQUELLES DES QUANTITES DE REFERENCE SPECIFIQUES OU SUPPLEMENTAIRES PEUVENT ETRE ATTRIBUEES PAR LES ETATS MEMBRES . CES DISPOSITIONS NE VISANT PAS LA SITUATION D' UN PRODUCTEUR N' AYANT PAS LIVRE DE LAIT PENDANT L' ANNEE DE REFERENCE EN RAISON D' UN ENGAGEMENT DE NON-COMMERCIALISATION PRIS AU TITRE DU REGLEMENT N* 1078/77, UN TEL PRODUCTEUR NE PEUT PRETENDRE A UNE QUANTITE DE REFERENCE QUE DANS LA MESURE OU IL RELEVE D' UNE OU DE PLUSIEURS DES HYPOTHESES SPECIFIQUEMENT ENVISAGEES A CET EFFET . | 0 |
5,912 | 66. As is apparent from paragraph 51 above, in order for Article 8(1)(b) or (5) of Regulation No 40/94 to be applicable, the marks at issue must be identical or similar. Consequently, those provisions are manifestly inapplicable where the General Court has ruled out any similarity between the marks at issue (see, to that effect, Calvin Klein Trademark Trust v OHIM , paragraph 68). It is only if there is some similarity, even faint, between the marks at issue that the General Court must carry out a global assessment in order to ascertain whether, notwithstanding the low degree of similarity between them, there is, on account of the presence of other relevant factors such as the reputation or recognition enjoyed by the earlier mark, a likelihood of confusion or a link made between those marks by the relevant public. | 44. The fact remains that, as far as the exercise of the power of taxation so allocated is concerned, the Member States may not, having regard to the principle referred to in paragraph 19 of this judgment, disregard Community rules ( Saint-Gobain ZN , paragraph 58). In particular, such an allocation of fiscal jurisdiction does not permit Member States to introduce discriminatory measures which are contrary to the Community rules ( Bouanich , paragraph 50). | 0 |
5,913 | 30. That being so, it is settled case-law that, if questions have been improperly formulated or if they go beyond the scope of the powers conferred on the Court by Article 267 TFEU, the Court is free to extract from all the information provided by the referring court and, in particular, from the statement of grounds in the order for reference the elements of EU law which, having regard to the subject-matter of the dispute, require interpretation (see, inter alia, Case C‑384/08 Attanasio Group [2010] ECR I‑2055, paragraph 18 and the case-law cited). To that end, the Court may have to reformulate the questions referred to it (see, inter alia, Attanasio Group , paragraph 19; Case C‑243/09 Fuß [2010] ECR I‑9849, paragraph 39 and the case-law cited; and Case C‑249/11 Byankov [2012] ECR, paragraph 57 and the case-law cited). | 128 Here, the nationality clauses do not concern specific matches between teams representing their countries but apply to all official matches between clubs and thus to the essence of the activity of professional players. | 0 |
5,914 | 30. It is settled case-law that the wording used in one language version of a Community provision cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of Community law (see Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 16). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
5,915 | 42. The fact that the participation of private partners in the contractor is merely as a minority is not sufficient to call those conclusions into question (see, to that effect, Stadt Halle and RPL Lochau EU:C:2005:5, paragraph 49). | 25 The court of the place where the publisher of the defamatory publication is established must therefore have jurisdiction to hear the action for damages for all the harm caused by the unlawful act. | 0 |
5,916 | 62
Lastly, with regard to the standard of proof required to demonstrate circumvention where there is insufficient or indeed no cooperation on the part of producer-exporters, it should be noted that there is no provision in the basic regulation which confers on the Commission, in an investigation to establish whether there has been circumvention, the power to compel producers or exporters which are the subject of a complaint to participate in the investigation or to provide information. The Commission is therefore reliant on the voluntary cooperation of the interested parties to provide it with the necessary information (judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 32). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
5,917 | 44 It is to be remembered in this regard that the concept of public security within the meaning of Article 11 of the Export Regulation covers both a Member State's internal security and its external security and that, consequently, the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations may affect the external security of a Member State (see Case C-70/94 Werner, cited above, paragraphs 25 and 27, and Case C-83/94 Leifer and Others, cited above, paragraphs 26 and 28). | 48. Since, at the time the social plan was concluded, women were entitled to an early retirement pension under the statutory scheme from the age of 55, whereas men were entitled to such a pension only from the age of 60, management and labour took the view that, in order to ensure equal treatment for all workers, it was necessary for women to be entitled to the bridging allowance five years earlier than the age fixed for their male colleagues. That provision of the social plan was not intended to give rise to discrimination against male workers of the undertaking and nor did it have that effect. Male workers, such as Mr Hlozek, who were in the 50 to 54 years age group at the time of their dismissal were further away from the statutory age for early retirement and, accordingly, were not in a situation identical to that of female workers in the same age group in terms of the likelihood of unemployment to which they were exposed. | 0 |
5,918 | 18. In this regard, although it is true that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for in that provision and that, consequently, the Commission’s reasoned opinion and the application must be based on the same objections, that requirement cannot go so far as to mean that in every case exactly the same wording must be used in both, where the subject-matter of the proceedings has not been extended or altered but simply narrowed (see, in particular, Case C‑229/00 Commission v Finland [2003] ECR I-5727, paragraphs 44 and 46, Case C-433/03 Commission v Germany [2005] ECR I-6985, paragraph 28, and Case C-150/04 Commission v Denmark [2007] ECR I-0000, paragraph 67). Accordingly, in its application the Commission may clarify its initial grounds of objection provided, however, that it does not alter the subject-matter of the dispute (Case C-67/99 Commission v Ireland [2001] ECR I-5757, paragraph 23, judgment of 12 October 2004 in Case C-328/02 Commission v Greece , not published in the ECR, paragraph 32, and Case C-494/01 Commission v Ireland [2005] ECR I-3331, paragraph 38). | 64. The Court has also recognised that limited authorisation of games on an exclusive basis has the advantage of confining the operation of gambling within controlled channels and of preventing the risk of fraud or crime in the context of such operation (see Läärä and Others , paragraph 37, and Zenatti , paragraph 35). | 0 |
5,919 | 65. It is for that reason that the EU legislature provided in Article 18(1) of the basic regulation that, in cases in which any interested party refuses access to, or otherwise does not provide, necessary information, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available (judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 33). | 35 In order to reply to those questions, it must first be noted that the object of the Convention is not to unify the rules of substantive law and of procedure of the different Contracting States, but to determine which court has jurisdiction in disputes relating to civil and commercial matters in relations between the Contracting States and to facilitate the enforcement of judgments (see Case C-365/88 Hagen v Zeehaghe [1990] ECR I-1845, paragraph 17). | 0 |
5,920 | 21. Under the Habitats Directive, Member States must take appropriate protective measures to preserve the characteristics of sites which host priority natural habitat types and/or priority species and which have been identified by Member States with a view to their inclusion on the Community list. Member States cannot therefore authorise intervention where there is a risk that the ecological characteristics of those sites will be seriously compromised as a result. That is particularly so where there is a risk that intervention of a particular kind will bring about the extinction of priority species present on the sites concerned (see, to that effect, Bund Naturschutz in Bayern and Others , paragraphs 44 and 46). | 26 That principle of legal certainty requires, in particular, that the jurisdictional rules which derogate from the basic principle of the Brussels Convention laid down in Article 2, such as the rule in Article 5(1), should 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 (Handte, cited above, paragraph 18, and GIE Groupe Concorde and Others, paragraph 24). | 0 |
5,921 | 56
Likewise, as is apparent from that same line of case-law, the scope of the principle of protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which arose under the earlier rules (see, inter alia, judgment of 3 September 2015 in A2A, C‑89/14, EU:C:2015:537, paragraph 38 and the case-law cited). | 61. Under Article 5(1) of Directive 2006/12, Member States are to take appropriate measures to establish an integrated and adequate network of waste disposal installations, so as to enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually. To that end, Member States must take into account geographical circumstances or the need for specialised installations for certain types of waste. | 0 |
5,922 | 70
According to a consistent body of case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see judgments in Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49 and the case-law cited, and Council v Bank Mellat, C‑176/13 P, EU:C:2016:96, paragraph 74). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
5,923 | 65
More particularly, since such a concession is of certain cross-border interest, its award, without any transparency, to an undertaking located in the Member State to which the contracting authority belongs, amounts to a difference in treatment to the detriment of undertakings which might be interested in that concession and which are located in other Member States. Such a difference in treatment is, in principle, prohibited by Article 49 TFEU (see, by analogy, judgments of 17 July 2008 in ASM Brescia, C‑347/06, EU:C:2008:416, paragraphs 59 and 60, and 14 November 2013 in Belgacom, C‑221/12, EU:C:2013:736, paragraph 37). | 36. L’article 10 bis, premier alinéa, de la directive 85/337, en prévoyant que les décisions, les actes ou les omissions visés audit article doivent pouvoir faire l’objet d’un recours juridictionnel pour en contester la légalité, quant au fond ou à la procédure, n’a aucunement limité les moyens qui peuvent être invoqués à l’appui d’un tel recours (arrêt du 12 mai 2011, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein‑Westfalen, C‑115/09, Rec. p. I‑3673, point 37). | 0 |
5,924 | 66. Secondly, in proceedings under Article 226 EC for failure to fulfil obligations it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose ( Commission v Ireland , paragraph 41 and the case-law there cited, and Commission v Germany , paragraph 48). | 33. Dès lors, ce n’est qu’à titre tout à fait exceptionnel que la Cour peut, par application d’un principe général de sécurité juridique inhérent à l’ordre juridique de l’Union, être amenée à limiter la possibilité d’invoquer une disposition qu’elle a interprétée. Pour qu’une telle limitation puisse être décidée, il est nécessaire que deux critères essentiels soient réunis, à savoir la bonne foi des milieux intéressés et le risque de troubles graves (arrêts Skov et Bilka, précité, point 51, ainsi que du 3 juin 2010, Kalinchev, C‑2/09, non encore publié au Recueil, point 50). | 0 |
5,925 | 77. Next, the principle of legal certainty requires that European Union legislation must be certain and its application foreseeable by those subject to it (Case 325/85 Ireland v Commission [1987] ECR 5041, paragraph 18; Case C‑63/93 Duff and Others [1996] ECR I‑569, paragraph 20; and Belgium and Forum 187 v Commission , paragraph 69). It follows from paragraphs 73 to 75 of the present judgment that the 1997 decision indicated an expiry date, which made it foreseeable for the undertakings likely to avail themselves of the 1997-1999 aid scheme that, after that date, no further invitation to apply for aid could be launched under that scheme. | 61. Il convient de rappeler que, selon une jurisprudence constante, un pourvoi doit indiquer de façon précise les éléments critiqués de l’arrêt dont l’annulation est demandée ainsi que les arguments juridiques qui soutiennent de manière spécifique cette demande (voir, notamment, arrêt Ezz e.a./Conseil, C‑220/14 P, EU:C:2015:147, point 111 et jurisprudence citée). | 0 |
5,926 | 31 It should be noted first of all that, in paragraphs 8, 9 and 10 of the judgment in Case 14/76 De Bloos v Bouyer [1976] ECR 1497, after observing that the Convention was intended to determine the international jurisdiction of the courts of the Contracting States, to facilitate the recognition of judgments and to introduce an expeditious procedure for securing their enforcement, the Court held that those objectives implied the need to avoid, so far as possible, creating a situation in which a number of courts had jurisdiction in respect of one and the same contract and that Article 5(1) of the Convention could not therefore be interpreted as referring to any obligation whatsoever arising under the contract in question. The Court concluded, in paragraphs 11 and 13 of the same judgment, that, for the purposes of determining the place of performance within the meaning of Article 5(1), the obligation to be taken into account was that which corresponded to the contractual right on which the plaintiff's action was based. It stated in paragraph 14 that, in a case where the plaintiff asserted the right to be paid damages or sought dissolution of the contract on the ground of the wrongful conduct of the other party, that obligation was still that which arose under the contract and the non-performance of which was relied upon to support such claims. | 13. As a preliminary point, it should be recalled that the two features of the export refunds system are, first, that Community aid is not granted unless the exporter makes an application and, second, that the system is financed by the Community budget (Case C-309/04 Fleisch-Winter [2005] ECR I-10349, paragraph 31). | 0 |
5,927 | 43. Thus, an effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive (see Bagnasco and Others , cited above, paragraph 47, and Case C-359/01 P British Sugar v Commission [2004] ECR I‑4933, paragraph 27). | 33. As to the assets transferred and the use made of those assets by the transferee after the transfer, firstly, the Sixth Directive does not include any definition of " a transfer, whether for consideration or not or as a contribution to a company, of a totality of assets or part thereof" . | 0 |
5,928 | 18. As regards, first, the alleged infringement of the principle of protection of legitimate expectations, a corollary of the principle of legal certainty, and the principle of cooperation in good faith, it must be recalled that the procedure for a declaration of failure on the part of a Member State to fulfil its obligations is based on the objective finding that a Member State has failed to fulfil its obligations under Community law and that the principles of protection of legitimate expectations and loyal cooperation cannot, in circumstances such as those of the present case, be relied on by a Member State in order to preclude an objective finding of a failure on its part to fulfil its obligations under the EC Treaty, since to admit that justification would run counter to the aim pursued by the procedure under Article 226 EC (Case C‑523/04 Commission v Netherlands [2007] ECR I‑3267, paragraph 28). | 54. If the referring court were to reach the conclusion that the taxable person concerned knew or should have known that the transaction which it had carried out was part of a tax fraud committed by the purchaser and that the taxable person had not taken every step which could reasonably be asked of it to prevent that fraud from being committed, there would be no entitlement to exemption from VAT. | 0 |
5,929 | 26. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments submitted to the General Court, including those based on facts expressly rejected by that Court (see, in particular, Interporc v Commission , paragraph 16), it fails to satisfy the requirement to state reasons under those provisions. In reality, such an appeal amounts to no more than a request for a re-examination of the application submitted to the General Court, a matter which falls outside the jurisdiction of the Court of Justice (see, inter alia, Reynolds Tobacco and Others v Commission , paragraph 50). | 83. However, that conferral of powers does not correspond to any of the situations defined in Articles 290 TFEU and 291 TFEU. | 0 |
5,930 | 32 With respect to the similar definitions of the terms `regulated profession' and `regulated professional activity' appearing in Article 1(c) and (d) of Directive 89/48, the Court has already held that access to or pursuit of a profession must be regarded as directly governed by legal provisions where the laws, regulations or administrative provisions of the host Member State concerned create a system under which that professional activity is expressly reserved to those who fulfil certain conditions and access to it is prohibited to those who do not fulfil them (Case C-164/94 Aranitis [1996] ECR I-135, paragraph 19, and Case C-234/97 Fernández de Bobadilla [1999] I-4773, paragraph 17). A profession must be regarded as indirectly regulated where there is indirect legal control of access to or pursuit of that profession (see Aranitis, cited above, paragraph 27). | 27 A decision such as that of the Arbeitsamt to class the applicant as an unskilled assistant does not constitute grounds for considering the profession in question to be indirectly regulated. Although the reasons for that decision have never been made clear, there is nothing to indicate that it forms part of any indirect legal control of access to or pursuit of that profession in Germany. | 1 |
5,931 | 47. The Court has also acknowledged that residence within a Member State was also capable of ensuring a real connection with the labour market of the host Member State, whilst additionally making clear that if compliance with the requirement of a connection demands a period of residence, the period must not exceed what is necessary in order for the national authorities to be able to satisfy themselves that the person concerned is genuinely seeking work in the employment market of the host Member State ( Collins , paragraph 72). | 15 S'agissant plus spécifiquement de la politique agricole commune et de la politique communautaire de l'environnement, la jurisprudence ne fournit aucun élément de droit permettant de faire en principe prévaloir l'une sur l'autre. Elle précise qu'une mesure communautaire ne saurait relever de l'action de la Communauté en matière d'environnement en raison du seul fait qu'elle tient compte des exigences de protection visées à l'article 130 R, paragraphe 2, du traité CE (arrêt du 29 mars 1990, Grèce/Conseil, C-62/88, Rec. p. I-1527, point 20). Les articles 130 R et 130 S laissent entières les compétences que la Communauté détient en vertu d'autres dispositions du traité et ne fournissent une base juridique que pour des actions spécifiques en matière d'environnement (voir, pour l'utilisation des filets maillants dérivants réglementée dans le cadre de la politique agricole commune, arrêt du 24 novembre 1993, Mondiet, C-405/92, Rec. p. I-6133, points 25 à 27). Doivent, en revanche, être fondées sur l'article 130 S du traité les dispositions qui relèvent spécifiquement de la politique de l'environnement (voir, pour des directives portant sur l'élimination des déchets, arrêt du 17 mars 1993, Commission/Conseil, précité), même si elles ont des incidences sur le fonctionnement du marché intérieur (voir, pour un règlement sur le transfert des déchets, arrêt du 28 juin 1994, Parlement/Conseil, C-187/93, Rec. p. I-2857, points 24 à 26) ou si elles poursuivent un objectif d'amélioration de la production agricole (voir, pour une directive concernant des produits phytopharmaceutiques, arrêt du 18 juin 1996, Parlement/Conseil, C-303/94, Rec. p. I-2943). | 0 |
5,932 | 24. According to equally established case-law, the criteria for assessing the distinctive character of three-dimensional marks consisting of the appearance of the product itself are no different from those applicable to other categories of trade mark (see Henkel v OHIM , paragraph 38, Case C-136/02 P Mag Instrument v OHIM [2004] ECR I‑9165, paragraph 30, and Deutsche SiSi-Werke v OHIM , paragraph 27). | 21 In those circumstances, it must be held that, even supposing that in some circumstances the division of the internal market may have restrictive effects on the free movement of goods, those repercussions are too uncertain and too indirect to be considered to be an obstacle within the meaning of Article 30 of the Treaty. | 0 |
5,933 | 32. Specifically as regards the ground mentioned in Article 34(2) of Regulation No 44/2001, to which Article 45(1) thereof refers, it must be held that it aims to ensure that the rights of defence of a defendant in default of appearance delivered in the Member State of origin are observed by a double review (see ASML , paragraph 29). Under that system, where an appeal is lodged, the court of the Member State in which enforcement is sought must refuse or revoke the enforcement of a foreign judgment given in default of appearance if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment whereas it was possible for him to do so. | 38. Third, the Court has held that a national court which, in a case concerning EU law, considers that a provision of national law is not only contrary to EU law, but also unconstitutional, does not lose the right or escape the obligation under Article 267 TFEU to refer questions to the Court of Justice on the interpretation or validity of EU law by reason of the fact that the declaration that a rule of national law is unconstitutional is subject to a mandatory reference to the constitutional court. The effectiveness of EU law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by EU law from exercising the right conferred on it by Article 267 TFEU to refer to the Court of Justice questions concerning the interpretation or validity of EU law in order to enable it to decide whether or not a provision of national law was compatible with that EU law ( Melki and Abdeli , EU:C:2010:363, paragraph 45 and the case-law cited). | 0 |
5,934 | 40. However, the Court has already held that the principle of legal certainty does not preclude a practice of the national tax authorities whereby, within the limitation period, they revoke a decision by which they granted the taxable person the right to deduct VAT and then, following a fresh investigation, order him to pay that VAT together with default interest (see, to that effect, judgment in Fatorie , C‑424/12, EU:C:2014:50, paragraph 51). | 35 Thus, the fact that a woman is deprived, before the beginning of her maternity leave, of her full pay when her incapacity for work is the result of a pathological condition connected with the pregnancy must be regarded as treatment based essentially on the pregnancy and thus as discriminatory. | 0 |
5,935 | 54. Having regard to the extremely serious damage which could result from improper communication of certain information to a competitor, that body must, before communicating that information to a party to the dispute, give the economic operator concerned an opportunity to plead that the information is confidential or a business secret (see, by analogy, AKZO Chemie and AKZO Chemie UK v Commission , paragraph 29). | 35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71. | 0 |
5,936 | 96
In that regard, it should be noted, first, that the objectives of combating tax evasion and avoidance and of seeking to safeguard a balanced allocation of taxation powers between the Member States are connected and, secondly, because they constitute overriding reasons in the public interest, they are capable of justifying a restriction on the exercise of freedom of movement guaranteed by the Treaty (judgment of 7 September 2017, Eqiom and Enka, C‑6/16, EU:C:2017:641, paragraph 63 and the case-law cited). | 45 In order to reply to that question, it must be pointed out that, in view of the answer given to the second and third questions that the use of the trade mark in the advertisements concerned in the main proceedings falls within the scope of Article 5(1)(a) of the directive, the use in issue may be prohibited by the trade mark proprietor unless Article 6, concerning the limitation of the effects of a trade mark, or Article 7, concerning exhaustion of the rights conferred by a trade mark, are applicable. | 0 |
5,937 | 180
In this context, it must be pointed out first of all that, where a person seeks annulment of an act from the EU judicature, the matter to be considered by the latter relates only to those provisions of the act which concern him. Provisions concerning other persons which have not been challenged do not form part of the matter to be decided by the EU judicature (judgments in Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 53, and Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 25). | 30
In that context, it should be noted that, in order for national legislation to be regarded as seeking to prevent tax evasion and abuses, its specific objective must be to prevent conduct involving the creation of wholly artificial arrangements which do not reflect economic reality, the purpose of which is unduly to obtain a tax advantage (see, to that effect, judgments of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraph 55, and of 5 July 2012, SIAT, C‑318/10, EU:C:2012:415, paragraph 40). | 0 |
5,938 | 49. The reference made by the national court, in its first question, to compliance with the requirement for clear evidence of an infringement of a copyright and to the proportionate nature of the injunction which would be issued under the transposing law at issue in the main proceedings and, as follows from paragraph 34 of the present judgment, to the judgment in Promusicae , suggests that the national court is also doubtful as to whether the provisions in question of that transposing law are likely to ensure a fair balance between the various applicable fundamental rights, as required by that judgment, which interpreted and applied various provisions of Directives 2002/58 and 2004/48. | 27. En second lieu, il convient de rappeler que, si des restrictions à la libre circulation des capitaux entre les ressortissants d’États parties à l’accord EEE doivent être appréciées au regard de l’article 40 de cet accord et de l’annexe XII de celui-ci, ces stipulations revêtent la même portée juridique que celle des dispositions, identiques en substance, de l’article 63 TFUE (voir arrêts Commission/Pays-Bas, C‑521/07, EU:C:2009:360, point 33; Commission/Italie, C‑540/07, EU:C:2009:717, point 66, et Commission/Allemagne, C‑284/09, EU:C:2011:670, point 96). | 0 |
5,939 | 35. Similarly, nor can there be said to be a direct and inseverable link between the chargeable event for the tax and the consumption of electricity generated by a given nuclear reactor, as held in the judgment in Braathens (C‑346/97, EU:C:1999:291, paragraph 23). | 77
Observing the limits set out in paragraphs 60 to 62 of the judgment in Azienda sanitaria locale No 5 Spezzino and Others (C‑113/13, EU:C:2014:2440), noted in paragraphs 63 to 65 of the present judgment, however, fundamentally entails respecting the very nature of those voluntary associations. | 0 |
5,940 | 19 It should be pointed out in this respect that the insurance cover against occupational disease and accident provided for in Article 73 of the Staff Regulations and in the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (`the Insurance Rules') allows an injured official to be paid lump-sum compensation by the institution by which he is employed. That compensation is calculated on the basis of the rate of invalidity and the basic salary of the official, without any regard to the liability of the person responsible for the accident or that of the institution which laid down the working conditions that may have contributed towards the onset of the occupational disease. | 20 HOWEVER , IN VIEW OF THE EXTREME GRAVITY OF THE NON-ECONOMIC CONSEQUENCES WHICH THE ACCIDENT HAS HAD FOR MR LEUSSINK , THE COURT CONSIDERS IT EQUITABLE TO AWARD HIM ADDITIONAL COMPENSATION OF BFR 2 000 000 TOGETHER WITH INTEREST THEREON AT THE RATE OF 8% PER ANNUM FROM THE COMMENCEMENT OF THE ACTION ON 23 MAY 1984 . | 1 |
5,941 | 34. In this respect, it has already been held that national legislation which is intended to apply only to shareholdings enabling the holder to exert a definite influence over a company’s decisions and determine its activities is covered by the Treaty provisions on freedom of establishment (see Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 37, and Case C-81/09 Idryma Typou [2010] ECR I-10161, paragraph 47). On the other hand, national provisions which apply to shareholdings acquired solely with the intention of making a financial investment, with no intention of influencing the management and control of the undertaking, must be examined exclusively in the light of the free movement of capital (Case C-310/09 Accor [2011] ECR I-8115, paragraph 32 and the case-law cited). | 50 IT IS CLEAR, HOWEVER, FROM THE ARGUMENTS PUT FORWARD BY THE APPLICANT THAT IT WAS ABLE IN DUE TIME TO ACQUAINT ITSELF WITH THE CONTENTS OF THE MINUTES . | 0 |
5,942 | 20. That being clear, it must be recalled that, according to well-established case-law, Articles 5 to 7 of Directive 89/104 effect a complete harmonisation of the rules relating to the rights conferred by a trade mark and accordingly define the rights of proprietors of trade marks in the Community (Case C‑355/96 Silhouette International Schmied [1998] ECR I‑4799, paragraphs 25 and 29, and Zino Davidoff and Levi Strauss , paragraph 39). | 29 Even if Article 100a of the Treaty were to be construed in the sense argued for by the Swedish Government, the fact remains that Article 7, as has been pointed out in this judgment, is not intended to regulate relations between Member States and non-member countries but to define the rights of proprietors of trade marks in the Community. | 1 |
5,943 | 40. As has been observed at paragraph 28 of this judgment, the statement of objections is merely a preparatory document containing assessments of fact and of law which are purely provisional in nature. The subsequent decision does not necessarily need to be a copy of the statement of objections, since the Commission must take into account the factors emerging from the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains (see, in particular, Musique Diffusion française and Others v Commission , paragraph 14, and Aalborg Portland and Others v Commission , paragraph 67). | 35. It is also apparent from that provision that the relevant time for determining whether there was bad faith on the part of the applicant is the time of filing the application for registration. | 0 |
5,944 | 23. With respect to those points, it must be recalled from the outset that the terms used to specify the exemptions in Article 132 of the VAT Directive are to be interpreted strictly, since they constitute exceptions to the general principle that VAT is to be levied on all goods and services supplied for consideration by a taxable person. Nevertheless, the interpretation of those terms must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality. Thus, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 should be construed in such a way as to deprive the exemptions of their intended effect (see by analogy, in particular, Case C‑86/09 Future Health Technologies [2010] ECR I‑5215, paragraph 30 and the case-law cited). | 24. Secondly, it should be noted that Mr Lanigan is currently deprived of his liberty and that the question as to whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings. | 0 |
5,945 | 115. It is also clear from settled case-law that the scope of the obligation to state reasons depends on the nature of the measure in question and that, in the case of measures of general application, the statement of reasons may be confined to indicating the general situation which led to the adoption of the measure and the general objectives which it is intended to achieve. In that context, the Court has repeatedly ruled that if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (see, to this effect, Case C-221/09 AJD Tuna [2011] ECR I-0000, paragraph 59 and the case-law cited). | 33. In the light of Article 3 of Directive 2001/23, it is apparent that, by reason of the freedom to conduct a business, the transferee must be able to assert its interests effectively in a contractual process to which it is party and to negotiate the aspects determining changes in the working conditions of its employees with a view to its future economic activity. | 0 |
5,946 | 27
Consequently, an interested party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in that Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (see, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26). | 90 In answering that question in the negative, but subject to the express condition that the geographical indications which that bilateral agreement is intended to protect have not, at the time of its entry into force or thereafter, become generic in the State of origin, the Court therefore did no more than ensure that the protection in the State of origin should not be extended to the territory of another State unless, in the State of origin itself, that protection is, or continues to be, deserved. | 0 |
5,947 | 67. The Court held in that regard, in paragraph 37 of its judgment in Groupe Danone v Commission , that the absence of such a period does not infringe the principle of legal certainty. | 68 As for the anomaly threshold applied in the cases in the main proceedings, this results from a calculation carried out for each contract notice and is based essentially on the average of the tenders submitted for that contract. | 0 |
5,948 | 29. In those circumstances, in order to determine whether the undertaking in a dominant position has abused that position by applying a rebate scheme such as that at issue in the main proceedings, the Court has repeatedly held that it is necessary to consider all the circumstances, particularly the criteria and rules governing the grant of the rebate, and to investigate whether, in providing an advantage not based on any economic service justifying it, the rebate tends to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties or to strengthen the dominant position by distorting competition (judgments in British Airways v Commission , C‑95/04 P, EU:C:2007:166, paragraph 67, and Tomra Systems and Others v Commission , C‑549/10 P, EU:C:2012:221, paragraph 71). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
5,949 | 44. In this connection, in ruling on an order for reference submitted by a national court before which inter partes proceedings, initiated following an objection lodged by a consumer against an order for payment, had been brought, the Court held that that national court must investigate of its own motion whether a term conferring exclusive territorial jurisdiction in a contract concluded between a seller or supplier and a consumer falls within the scope of Directive 93/13 and, if it does, assess of its own motion whether such a term is unfair ( VB Pénzügyi Lízing , paragraph 56). | 32. In such a context, the further provisions in the third and fourth subparagraphs of Article 88(2), whereby, on the one hand, application to the Council by a Member State suspends examination in progress at the Commission for a period of three months, and, on the other, in the absence of a decision by the Council within that period, the Commission is to give a ruling, undeniably indicate that, where that period has expired, the Council is no longer competent to adopt a decision under that third subparagraph in relation to the aid concerned. The taking of decisions the operative parts of which might prove contradictory is thereby avoided. | 0 |
5,950 | 48. The fact nevertheless remains that, when exercising that power, Member States must comply with EU law and, in particular, with the provisions on the freedom to provide services (see, inter alia, Case C‑157/99 Smits and Peerbooms [2001] ECR I‑5473, paragraphs 44 to 46; Müller-Fauré and van Riet , paragraph 100; Watts , paragraph 92; Elchinov , paragraph 40; Case C‑211/08 Commission v Spain [2010] ECR I‑0000, paragraph 53; and Commission v Luxembourg , paragraph 32). | 46. It follows from those definitions that, first, a transmission system is an interconnected system used to transport electricity at extra-high and high voltage for sale to final customers or to distributors and, second, a distribution system is a system used to transport electricity at high, medium or low voltage for sale to wholesale or final customers. | 0 |
5,951 | 23. The Commission will determine in any final decision adopted at the end of the administrative procedure:
(a) whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s possession at that same time;
(b) the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as follows. For the:
– first undertaking to meet point 21: a reduction of 30‑50%,
– second undertaking to meet point 21: a reduction of 20‑30%,
– subsequent undertakings that meet point 21: a reduction of up to 20%.
In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.
In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’
7. Point 29 of the 2002 Leniency Notice provides:
‘The Commission is aware that this notice will create legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to the Commission.’
Background to the dispute and the decision at issue
8. Kone Oyj is a global service and engineering undertaking, established in Finland, which sells, manufactures, installs, maintains and modernises elevators and escalators and services automatic building doors. Kone Oyj operates through its national subsidiaries, such as Kone GmbH in Germany and Kone BV in the Netherlands.
9. In the summer of 2003, the Commission received information concerning the possible existence of a cartel among the principal European manufacturers of elevators and escalators engaged in business activities in the European Union, namely Kone Belgium SA, Kone GmbH, Kone Luxembourg Sàrl, Kone BV Liften en Roltrappen, Kone Oyj, Otis SA, Otis GmbH & Co. OHG, General Technic-Otis Sàrl, General Technic Sàrl, Otis BV, Otis Elevator Company, United Technologies Corporation, Schindler SA, Schindler Deutschland Holding GmbH, Schindler Sàrl, Schindler Liften BV, Schindler Holding Ltd as well as ThyssenKrupp Liften Ascenseurs NV, ThyssenKrupp Aufzüge GmbH, ThyssenKrupp Fahrtreppen GmbH, ThyssenKrupp Elevator AG, ThyssenKrupp AG, ThyssenKrupp Ascenseurs Luxembourg Sàrl and ThyssenKrupp Liften BV (together referred to as ‘the ThyssenKrupp group’). Early in 2004, the Commission carried out inspections at the premises of those undertakings in Belgium, Germany, Luxembourg and the Netherlands.
10. Leniency applications were made by those undertakings. On 2 February 2004 the Kone group submitted such an application under point 8(b) of the 2002 Leniency Notice, which included information concerning Belgium and which it subsequently supplemented with, inter alia, information concerning Germany (on 12 and 14 February 2004) and information concerning the Netherlands (on 19 July 2004).
11. In the decision at issue, the Commission found that the undertakings mentioned in paragraph 9 of the present judgment together with Mitsubishi Elevator Europe BV had participated in four single, complex and continuous infringements of Article 81 EC in four Member States, sharing markets by agreeing or concerting to allocate tenders and contracts for the sale, installation, service and modernisation of elevators and escalators.
12. The Kone group was granted immunity from fines in respect of the infringements in Belgium and Luxembourg. However, under Article 2(2) and (4) of the decision at issue, so far as the infringements in Germany and the Netherlands were concerned, fines of EUR 62 370 000 and EUR 79 750 000 respectively were imposed jointly and severally on Kone Oyj and its national subsidiaries.
Proceedings before the General Court and the judgment under appeal
13. By application lodged at the Registry of the General Court on 8 May 2007, the Kone group brought an action challenging (i) the legality of Article 2(2) of the decision at issue, which imposed fines on the undertakings concerned for the infringements in Germany, and (ii) the legality of Article 2(4) of that decision, which imposed fines on the undertakings concerned for the infringements in the Netherlands.
14. In support of the action, the Kone group put forward three pleas in law. Those pleas alleged (i) infringement of the Commission Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [ECSC] (OJ 1998 C 9, p. 3) and breach of the principle of proportionality in the setting of the starting amounts of the fines, (ii) infringement of the 2002 Leniency Notice and of the principles of the protection of legitimate expectations, equal treatment and the rights of the defence and (iii) infringement of the principles of the protection of legitimate expectations and equal treatment on the occasion of the calculation of the reduction of the fines granted for cooperation outside the framework of the 2002 Leniency Notice.
15. By the judgment under appeal, the General Court dismissed that action and ordered the Kone group to pay the costs.
Forms of order sought
16. The appellants claim that the Court should:
– set aside the judgment under appeal;
– annul Article 2(2) of the decision at issue in so far as it imposes a fine on Kone Oyj and Kone GmbH, and impose either no fine or a fine at a lower amount than determined in that decision;
– annul Article 2(4) of the decision at issue in so far as it imposes a fine on Kone Oyj and Kone BV, and set the fine at a lower amount than determined in that decision; and
– order the Commission to pay the costs.
17. The Commission contends that the Court of Justice should:
– dismiss the appeal; and
– order the appellants to pay the costs.
The appeal
18. The appellants raise six grounds of appeal in support of the form of order sought, which allege (i) misinterpretation of point 8(b) of the 2002 Leniency Notice, (ii) misinterpretation of point 8(a) of that notice, (iii) infringement of the principle of the protection of legitimate expectations, (iv) misinterpretation of points 21 to 23 of the 2002 Leniency Notice, (v) infringement of the principle of equal treatment and (vi) infringement of the right to a fair trial, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).
19. The appellants maintain, in several of their grounds of appeal, that the review carried out by the General Court in the judgment under appeal was marginal and cannot be regarded as a ‘full review’. In order to address this criticism, which is made in relation to a number of the grounds of appeal, it is appropriate to recall, before going on to consider those grounds, the underlying principles of both the review of legality carried out by the European Union judicature and the unlimited jurisdiction which the latter is afforded in certain circumstances.
Preliminary considerations
20. The principle of effective judicial protection is a general principle of European Union (EU) law to which expression is now given by Article 47 of the Charter and which corresponds, in EU law, to Article 6(1) of the ECHR (see, inter alia, Case C‑501/11 P Schindler Holding and Others v Commission [2013] ECR I‑0000, paragraph 36 and the case-law cited).
21. Whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (see Case C‑571/10 Kamberaj [2012] ECR I‑0000, paragraph 62, and Case C‑617/10 Åkerberg Fransson [2013] ECR I‑0000, paragraph 44).
22. As the Court of Justice has already observed in paragraph 35 of Schindler Holding and Others v Commission , the European Court of Human Rights has held that, in administrative proceedings, the obligation to comply with Article 6 of the ECHR does not preclude a ‘penalty’ from being imposed by an administrative authority in the first instance. According to the European Court of Human Rights, compliance with that provision requires, however, that decisions taken by administrative authorities which do not themselves satisfy the requirements laid down in Article 6(1) of the ECHR be subject to subsequent review by a judicial body that has full jurisdiction. The characteristics of such a body include, according to the same judgment of the European Court of Human Rights, the power to quash in all respects, on questions of fact and law, the decision of the body below. The judicial body must in particular have jurisdiction to examine all questions of fact and law relevant to the dispute before it (judgment of the European Court of Human Rights in A. Menarini Diagnostics S.R.L. v. Italy , no. 43509/08, 27 September 2011, § 59).
23. Ruling on the principle of effective judicial protection, a general principle of EU law to which expression is now given by Article 47 of the Charter, the Court of Justice has held that, in addition to the review of legality provided for by the FEU Treaty, the European Union judicature has the unlimited jurisdiction which it is afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU, and which empowers it to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (Case C‑386/10 P Chalkor v Commission [2011] ECR I‑0000, paragraph 63, and Schindler Holding and Others v Commission , paragraph 36). | 28 It is apparent from the facts set out in the order for reference, particularly as regards the number of employees of the company established in the United Kingdom and the actual terms under which it provides services to customers, that that company does display the features of a fixed establishment within the meaning of the abovementioned provisions. | 0 |
5,952 | 41. It is also clear from the case-law that it is the documents referred to in Article 3(5) of Regulation No 3665/87, namely, the export declaration or any other document used during export, which are capable of forming the legal basis of a refund and triggering the system of checks of the request for refund which may lead to the application of a sanction in accordance with Article 11(1) (see, to that effect, Case C-385/03 Käserei Champignon Hofmeister , cited above, paragraphs 23, 29 and 36). | 77. Furthermore, it has been consistently held that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Commission v Sytraval and Brink’s France , paragraph 63 and the case-law cited, and Bertelsmann and Sony Corporation of America v Impala , paragraph 166 and the case-law cited). | 0 |
5,953 | 47. In that regard, it should be recalled that it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the General Court has established or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see Case C‑445/11 P Bavaria v Commission [2012] ECR I-0000, paragraph 23 and the case-law cited). | 34. The use of national legal concepts in the context of Regulation No 44/2001 would give rising to different outcomes among the Member States liable to compromise the aim of unifying the rules of jurisdiction pursued by that regulation, as is clear from recital 2 in the preamble thereto (see, by analogy, Case C-543/10 Refcomp [2013] ECR I-0000, paragraph 39). | 0 |
5,954 | 109. The Commission’s suggestion of multiplying a basic amount by a coefficient of 21.1 based on the gross domestic product of the French Republic and on the number of votes which it has in the Council is an appropriate way of reflecting that Member State’s ability to pay, while keeping the variation between Member States within a reasonable range (see Case C-387/97 Commission v Greece , paragraph 88, and Case C-278/01 Commission v Spain , paragraph 59). | 63. In so far as vitamins or minerals are usually defined as substances which, in minute quantities, form an essential part of the daily diet and are indispensable for the proper functioning of the body, they cannot, as a general rule, be regarded as medicinal products when they are consumed in small quantities. Similarly, it is a fact that vitamin preparations or preparations containing minerals are sometimes used, generally in large doses, for therapeutic purposes in combating certain diseases other than those of which the morbid cause is a vitamin or mineral deficiency. In such cases, it is beyond dispute that those preparations constitute medicinal products (see, in respect of vitamins, Van Bennekom , paragraphs 26 and 27). | 0 |
5,955 | 57. Second, such measures restrict the ability of undertakings established in the Member States where they are in force to offer advertising space in their publications to advertisers established in other Member States, thereby affecting the cross-border supply of services (see, to this effect, Case C-405/98 Gourmet International Products [2001] ECR I-1795, paragraphs 38 and 39). | 47. The structure of the categories of derogation which are laid down in Article 4(7) of Directive 2000/60 permits the inference that Article 4 of the directive does not contain solely basic obligations, but that it also concerns individual projects. As the Advocate General has observed in point 78 of his Opinion, the grounds for derogation apply in particular where failure to comply with the objectives follows new modifications to the physical properties of the body of surface water, resulting in adverse effects. That may occur following new authorisations for projects. Indeed, it is impossible to consider a project and the implementation of management plans separately. | 0 |
5,956 | 37. It follows from the case-law of the Court that, in order to determine whether the planned operation has such an objective, the competent national authorities may not confine themselves to applying predetermined general criteria but must subject each particular case to a general examination of the operation in question. Indeed, the laying down of a general rule automatically excluding certain categories of operations from the tax advantage, without account being taken of whether or not there is actually tax evasion or avoidance, would go further than is necessary for preventing such tax evasion or avoidance and would undermine the aim pursued by Directive 90/434 ( Leur-Bloem , paragraphs 41 and 44). | 20 Moreover, that interpretation is confirmed by the second sentence of Article 130r(2 ), pursuant to which "environmental protection requirements shall be a component of the Community' s other policies ". That provision, which reflects the principle whereby all Community measures must satisfy the requirements of environmental protection, implies that a Community measure cannot be part of Community action on environmental matters merely because it takes account of those requirements . | 0 |
5,957 | 75. As regards, first, the alleged need to ensure a balanced allocation of the power to tax, it must be recalled that such a justification may be accepted, in particular, where the national tax system is designed to prevent conduct capable of jeopardising the right of a Member State to exercise its powers of taxation in relation to activities carried on in its territory (see Case C-347/04 Rewe Zentralfinanz [2007] ECR I-2647, paragraph 42; Case C-231/05 Oy AA [2007] ECR I-6373, paragraph 54; Amurta , paragraph 58; Case C-303/07 Aberdeen Property Fininvest Alpha [2009] ECR I-5145, paragraph 66, and Case C-284/09 Commission v Germany , paragraph 77). | 68 Whilst, in these circumstances, the conclusion that the trade mark owner may not rely on his rights as owner in order to oppose the marketing under his trade mark of products repackaged by an importer is essential in order to ensure the free movement of goods, it does nevertheless confer on the importer certain rights which, in normal circumstances, are reserved for the trade mark owner himself. | 0 |
5,958 | 59. It is settled case-law that the prohibition of quantitative restrictions and measures having equivalent effect laid down by Articles 28 EC and 29 EC applies not only to national measures but also to measures adopted by the Community institutions (see in particular, to that effect, Case 15/83 Denkavit Nederland [1984] ECR 2171, paragraph 15; Case C-51/93 Meyhui [1994] ECR I-3879, paragraph 11; and Case C-114/96 Kieffer and Thill [1997] ECR I-3629, paragraph 27). | 36 In that regard, it should be pointed out that the four arguments put forward by the IECC, with the exception of the part of the second argument relating to ABC remail operations, raise new matters which were not submitted at first instance. Under Article 113(2) of the Rules of Procedure, they are therefore inadmissible in this appeal. | 0 |
5,959 | 47. It should also be stated that, when the Community legislature fixes conditions for eligibility in respect of the award of aid, the exclusion entailed by the failure to observe one of those conditions is not a penalty, but merely the consequence of failure to fulfil those conditions laid down by the law (see, to that effect, Case C‑171/03 Toeters and Verberk [2004] ECR I-10945, paragraph 47). | 40. It is in that context that Article 20(1)(d) of Regulation No 343/2003 allows the requesting Member State six months in which to carry out the transfer. Thus, in view of the practical complexities and organisational difficulties associated with implementing the transfer, the purpose of that period is to allow the two Member States concerned to collaborate with a view to carrying out the transfer and, in particular, the requesting Member State to determine the practical details for implementing the transfer, which is carried out in accordance with that State’s legislation. | 0 |
5,960 | 47. The Court of Justice has also held that, on account of that weaker position, Article 6(1) of the Directive provides that unfair terms are not binding on the consumer. As is apparent from case‑law, that is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them ( Mostaza Claro , paragraph 36, and Asturcom Telecomunicaciones , paragraph 30). | 34. The definition of the relevant geographical market calls, just like the definition of the product or service market, for an economic assessment. The geographical market can thus be defined as the territory in which all traders operate under the same conditions of competition in so far as concerns specifically the relevant products or services. From that point of view, it is not necessary for the objective conditions of competition between traders to be perfectly homogeneous. It is sufficient if they are similar or sufficiently homogeneous (see, to that effect, United Brands and United Brands Continentaal v Commission , cited above, paragraphs 44 and 53). Furthermore, the market may be confined to a single Member State (see, to that effect, Nederlandsche Banden Industrie Michelin v Commission , cited above, paragraph 28). | 0 |
5,961 | 90. As was pointed out by the General Court in paragraphs 56 and 95 of the judgment under appeal, the Commission is required, in the interests of sound administration of the fundamental rules of the EC Treaty relating to State aid, to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision, the most complete and reliable information possible for that purpose (see, to that effect, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 62). | 41. Contrary to the Hellenic Republic’s assertion, the fact that, in such cases of intensive use of a vehicle, it is open to the owner to challenge the application of the fixed scale is not sufficient to prevent a system of taxation from contravening Article 90 EC. | 0 |
5,962 | 21. According to settled case-law, the fundamental characteristic of the concept of ‘letting of immovable property’ for the purposes of Article 13B(b) of the Sixth Directive lies in conferring on the other party to the contract, for an agreed period and for payment, the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right. In order to determine whether a contract falls within that definition, account should be taken of all the characteristics of the transaction and the circumstances in which it takes place. The decisive factor in this regard is the objective character of the transaction at issue, irrespective of how that transaction is classified by the parties (judgment in MacDonald Resorts , C‑270/09, EU:C:2010:780, paragraph 46 and case-law cited). | Toutefois, les États membres sont tenus, en vertu de l’article 4, paragraphe 3, TUE, de faciliter l’accomplissement par la
Commission de sa mission, consistant notamment, selon l’article 17, paragraphe 1, TUE, à veiller à l’application des traités
ainsi que des mesures adoptées par les institutions de l’Union européenne en vertu de ceux-ci (voir, en ce sens, arrêt du
26 avril 2007, Commission/Italie, C‑135/05, EU:C:2007:250, point 27 et jurisprudence citée). | 0 |
5,963 | 35 In paragraph 37 of that same judgment, the Court also pointed out that it is settled case-law that a Member State cannot unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any breach by another Member State of rules of Community law (see also the judgments in Joined Cases 90/63 and 91/63 Commission v Luxembourg and Belgium [1964] ECR 625, Case 232/78 Commission v France [1979] ECR 2729, paragraph 9, and Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 20). | 52 The answer to Questions 2(a) to 2(c), 3(a), 3(b) and 4(c) is therefore that time spent on call by doctors in primary health care teams must be regarded in its entirety as working time, and where appropriate as overtime, within the meaning of Directive 93/104 if they are required to be present at the health centre. If they must merely be contactable at all times when on call, only time linked to the actual provision of primary care services must be regarded as working time.
Whether the work is night work (Questions 4(a) and 4(b)) | 0 |
5,964 | 36. In order to reply to the question reformulated as above, it should first be noted that, according to the case-law of the Court, Article 22(1)(c) of Regulation No 1408/71 governs the entitlement to benefits in kind of pensioners and members of their family, resident in a Member State, who ask the competent institution for authorisation to go to the territory of another Member State to receive treatment there which is appropriate to their condition, while Article 31 of that regulation, to the exclusion of Article 22(1)(a), governs the entitlement of that class of insured persons to benefits in kind where those benefits become necessary during a stay in a Member State other than the State in which they reside (Pierik , paragraphs 6 and 7; Case C-326/00 IKA [2003] ECR I-1703, paragraphs 26, 34 and 39). | 33. As European Union law now stands, service concession contracts are not governed by any of the directives by which the legislature has regulated the field of public procurement (see Coname , paragraph 16, and Case C‑347/06 ASM Brescia [2008] ECR I‑5641, paragraph 57). However, the public authorities concluding them are bound to comply with the fundamental rules of the EC Treaty, including Articles 43 EC and 49 EC, and with the consequent obligation of transparency (see, to that effect, Telaustria and Telefonadress , paragraphs 60 to 62; Coname , paragraphs 16 to 19; and Parking Brixen , paragraphs 46 to 49). | 0 |
5,965 | 56. Toutefois, selon une jurisprudence constante de la Cour, le Tribunal est seul compétent, d’une part, pour constater les faits, sauf dans le cas où une inexactitude matérielle de ses constatations résulterait des pièces du dossier qui lui ont été soumises, et, d’autre part, pour apprécier ces faits. L’appréciation des faits ne constitue donc pas, sous réserve du cas de la dénaturation des éléments de preuve qui lui ont été soumis, une question de droit soumise, comme telle, au contrôle de la Cour (voir, notamment, arrêts Versalis/Commission, C‑511/11 P, EU:C:2013:386, point 66, ainsi que Telefónica et Telefónica de España/Commission, C‑295/12 P, EU:C:2014:2062, point 84). | 44. That finding cannot be affected by the fact that workers in a situation such as that at issue in the main proceedings begin and finish such journeys at their homes, as that fact stems directly from the decision of their employer to abolish regional offices and not from the desire of those workers. Having lost the ability to freely determine the distance between their homes and the usual place of the start and finish of their working day, they cannot be required to bear the burden of their employer’s choice to close those offices. | 0 |
5,966 | 34. However, it is clear from Article 234 EC that a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see, orders in Case 138/80 Borker [1980] ECR 1975, paragraph 4; Case 318/85 Greis Unterweger [1986] ECR 955, paragraph 4; and judgments in Case C‑111/94 Job Centre [1995] ECR I‑3361, paragraph 9, and Case C‑178/99 Salzmann [2001] ECR I‑4421, paragraph 14). | 14 Furthermore, whilst Article 177 of the Treaty does not make the reference to the Court subject to there having been an inter partes hearing in the proceedings in the course of which the national court refers a question for a preliminary ruling (see Case C-18/93 Corsica Ferries [1994] ECR I-1783, paragraph 12), it follows, none the less, from that article that a national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see Case 318/85 Greis Unterweger [1986] ECR 955, paragraph 4, and Case C-134/97 Victoria Film [1998] ECR I-7023, paragraph 14). | 1 |
5,967 | 15 However, the Court has power to explain to the national court points of Community law which may help to solve the problem of jurisdiction with which that court is faced (Bozzetti, paragraph 18, and SEIM, paragraph 33, both cited above). To that end, it may, if appropriate, extract the relevant points from the wording of the question submitted and the facts set forth by the national court (see, in particular, Case 54/80 Procureur de la République v Wilner [1980] ECR 3673, paragraph 4). | 32 According to the information contained in the order for reference and in the observations of the Finnish Government, the legislation at issue in the main proceedings responds to the concern to limit exploitation of the human passion for gambling, to avoid the risk of crime and fraud to which the activities concerned give rise and to authorise those activities only with a view to the collection of funds for charity or for other benevolent purposes. | 0 |
5,968 | 57. Admittedly, the employment criterion cannot be regarded as exclusive, since pensions paid by statutory social security schemes may reflect, wholly or in part, pay in respect of work (Beune , paragraph 44, Evrenopoulos , paragraph 20, Griesmar , paragraph 29, and Niemi , paragraph 46). Such pensions do not constitute "pay" for the purposes of Article 119 of the Treaty or Article 141 EC (see, to that effect, Beune , paragraphs 24 and 44, Griesmar , paragraph 27, and Niemi , paragraph 39). | 96. Il résulte du système de contrôle préventif en matière d’aides d’État exercé par la Commission et, notamment, de l’interdiction de mise en œuvre des aides nouvelles avant qu’une décision finale n’ait été adoptée par la Commission, en vertu de l’article 88, paragraphe 3, dernière phrase, CE, que l’existence d’une décision de la Commission se prononçant sur la compatibilité d’une telle aide ne saurait faire aucun doute. | 0 |
5,969 | 37
Such a national measure goes further than is necessary to ensure the correct collection of the tax if, in essence, it makes the right of exemption from VAT subject to compliance with formal obligations, without any account being taken of the substantive requirements and, in particular, without any consideration being given as to whether those requirements have been satisfied. Transactions should be taxed taking into account their objective characteristics (see, to that effect, judgment of 27 September 2007, Collée, C‑146/05, EU:C:2007:549, paragraphs 29 and 30). | 90. The argument put forward by the German Government maintaining the contrary is, therefore, unfounded. | 0 |
5,970 | 25. Where the questions referred for preliminary ruling concern the interpretation of European Union law, the Court gives its ruling without, generally, having to look into the circumstances in which national courts were prompted to submit the questions and envisage applying the provision of European Union law which they have asked the Court to interpret (Case C‑85/95 Reisdorf [1996] ECR I‑6257, paragraph 15, and Telefónica O2 Czech Republic , paragraph 22). | 35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71. | 0 |
5,971 | 37 According to settled case-law, the concepts used in Article 13 of the Brussels Convention must be interpreted independently, by reference principally to the system and objectives of the Convention, in order to ensure that it is fully effective (see, in particular, Case 150/77 Bertrand [1978] ECR 1431, paragraphs 14, 15 and 16; Case C-89/91 Shearson Lehman Hutton [1993] ECR I-139, paragraph 13; Case C-269/95 Benincasa [1997] ECR I-3767, paragraph 12; and Case C-99/96 Mietz [1999] ECR I-2277, paragraph 26). | 57. The second condition is satisfied only where the treatment which the patient plans to undergo in a Member State other than that in the territory of which he resides cannot be given within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of his disease. | 0 |
5,972 | 42. Accordingly, where there is a risk of overlap between rights under the legislation of the Member State of residence and rights under the legislation of the Member State of employment, Article 73 of Regulation No 1408/71 must be considered in the light of the overlap rules in the latter and in Regulation No 574/72, in particular Article 76 of Regulation No 1408/71 and Article 10 of Regulation No 574/72 (see, to that effect, Schwemmer EU:C:2010:605, paragraphs 43 and 44). | 43. Thus, where there is a risk of overlap between rights under the legislation of the State of residence and rights under the legislation of the State of employment, provisions such as Articles 13 and 73 of Regulation No 1408/71 must be compared with the ‘anti-overlap’ rules appearing in the latter and in Regulation No 574/72 (see, to that effect, Dodl and Oberhollenzer , paragraph 49). | 1 |
5,973 | 29. As regards Article 10a of Directive 2001/83, it should be noted in the first place that the procedure governed by that provision does not provide for any relaxation of the requirements of safety and efficacy which must be met by medicinal products, that procedure being simply designed to reduce the preparation period for a MA application by relieving the applicant of the obligation to perform the preclinical tests and clinical trials referred to in Article 8(3)(i) of Directive 2001/83, provided that it is established by means of appropriate scientific literature, in accordance with the requirements laid down in Section 1 of Part II of Annex I to the directive, that those tests and trials have been carried out previously and have demonstrated that the constituent or constituents of the medicinal product concerned satisfy the criteria set out in Article 10a (see, with regard to the comparable provision in Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products (OJ English Special Edition 1965-1966, p. 20), as amended by Council Directive 87/21/EEC of 22 December 1986 (OJ 1987 L 15, p. 36), judgment in Scotia Pharmaceuticals , C‑440/93, EU:C:1995:307, paragraph 17). Accordingly, as observed by the Advocate General at point 39 of his Opinion, such a medicinal product may be placed on the market only after the competent authority has verified its safety and efficacy. | 38. As the Advocate General pointed out in paragraphs 47 and 48 of his Opinion, since the possibility of obtaining a deduction for tax purposes can have a significant influence on the donor’s attitude, the inability in Germany to deduct gifts to bodies recognised as charitable if they are established in other Member States is likely to affect the willingness of German taxpayers to make gifts for their benefit. | 0 |
5,974 | 48. In that regard, Article 2(7)(a) of the basic regulation provides that in the case of imports from non-market economy countries, in derogation from the rules set out in Article 2(1) to (6), normal value must, as a rule, be determined on the basis of the price or constructed value in a market economy third country. The aim of that provision is to prevent account being taken of prices and costs in non-market economy countries which are not the normal result of market forces (see judgments in Rotexchemie , C‑26/96, EU:C:1997:261, paragraph 9, and GLS , C‑338/10, EU:C:2012:158, paragraph 20). | 45. Aux termes de cette définition, un groupe est considéré comme un «certain groupe social» lorsque, en particulier, deux conditions cumulatives sont remplies. D’une part, les membres du groupe doivent partager une caractéristique innée ou une histoire commune qui ne peut être modifiée, ou encore une caractéristique ou une croyance à ce point essentielle pour l’identité qu’il ne devrait pas être exigé d’une personne qu’elle y renonce. D’autre part, ce groupe doit avoir son identité propre dans le pays tiers en question parce qu’il est perçu comme étant différent par la société environnante. | 0 |
5,975 | 31. That finding is confirmed by the objectives pursued by Regulation No 2419/2001. As evidenced by recital 32 in the preamble thereto, it is aimed at adopting the measures necessary to combat irregularities and fraud in the implementation of the different aid schemes coming within the integrated system in order to protect the European Union’s financial interests effectively. In order to attain that objective, that regulation provides, as evidenced by recital 33 in the preamble thereto, for reductions and exclusions according to the gravity of the irregularity committed in the aid application, up to total exclusion from one or more aid schemes for a determined period (see, by analogy, judgment in Agrargenossenschaft Pretzsch , C‑417/00, EU:C:2002:715, paragraphs 35 to 39). | 46. Thus, although the Court has accepted that Member States are free to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, it has nevertheless made clear that Member States are not entitled to make the very existence of that right, which derives directly from Directive 93/104, subject to any preconditions whatsoever (see, to that effect, BECTU , paragraph 53). | 0 |
5,976 | 96
As is apparent from the Court’s settled case-law, Article 28 EC, in prohibiting all measures having equivalent effect to quantitative restrictions on imports, covers any national measure which is capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see, in particular, judgments of 11 July 1974, Dassonville, 8/74, EU:C:1974:82, paragraph 5; of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 66; and of 11 September 2014, Essent Belgium, C‑204/12 to C‑208/12, EU:C:2014:2192, paragraph 77). | 20. Since the question referred refers both to the provisions of the Treaty relating to the freedom of establishment, the freedom to provide services and the free movement of capital, it is necessary first to determine which freedom is at issue in the main proceedings. | 0 |
5,977 | 19 It is also clear from settled case-law that, in the absence of Community rules governing the refund of national taxes levied though not due, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, however, that such rules are not less favourable than those governing similar domestic actions and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see Rewe, paragraph 5, Comet, paragraphs 13 and 16, both cited above, and, more recently, Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599, paragraph 12). | 39. For the sake of completeness, it must be noted that, as recitals 3, 21 and 24 in the preamble to Regulation No 1782/2003 make clear, environmental protection forms part of the objectives of the single payment scheme. The Court has also held that environmental protection, one of the essential objectives of the European Union, must be regarded as forming part of the common agricultural policy (Case C-428/07 Horvath [2009] ECR I-6355, paragraph 29). Moreover, Article 2 point (1) of Regulation No 796/2004 expressly provides that arable land, and consequently agricultural areas pursuant to Article 2(a) of Regulation No 795/2004, is land maintained in good agricultural and environmental condition within the meaning of Article 5 of Regulation No 1782/2003. | 0 |
5,978 | 57. According to the Court’s settled case-law, given their nature and purpose, the WTO agreements are not in principle among the rules in the light of which the Court of Justice is to review the legality of measures adopted by the European Union institutions. It is only where the European Union intends to implement a particular obligation assumed in the context of the WTO or where the European Union measure refers expressly to specific provisions of the WTO agreements that the Court can review the legality of the measure at issue in the light of the WTO rules (see Case C-377/02 Van Parys [2005] ECR I-1465, paragraphs 39 and 40, and judgment of 10 November 2011 in Joined Cases C-319/10 and C-320/10 X and X , paragraph 35). | 46
An individual who imports goods for the purposes of an economic activity within the meaning of that provision does so as a taxable person, even if the goods are not used immediately for that economic activity (see, to that effect, judgment of 29 November 2012, Gran Via Moineşti, C‑257/11, EU:C:2012:759, paragraph 25 and the case-law cited). It is settled case-law that a person who incurs investment expenditure with the intention, confirmed by objective evidence, of carrying out an economic activity within the meaning of Article 9(1) of the VAT Directive must be regarded as a taxable person (see, to that effect, judgments of 14 February 1985, Rompelman, 268/83, EU:C:1985:74, paragraph 24; of 29 February 1996, INZO, C‑110/94, EU:C:1996:67, paragraph 17; and of 22 October 2015, Sveda, C‑126/14, EU:C:2015:712, paragraph 20 and the case-law cited). | 0 |
5,979 | 56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule.
"
8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held:
"66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ...
...
69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55).
...
73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities.
74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ...
"
9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds:
"77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... .
78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37).
"
The appeal
10. By its appeal, Interporc claims that the Court should:
─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs;
─ annul the contested decision in its entirety;
─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance.
11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment).
12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment.
Admissibility of the appeal
Arguments of the parties
13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance.
14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly.
Findings of the Court
15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68).
16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24).
17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49).
18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based.
19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance.
20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule.
21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively.
22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed.
23. It follows from the foregoing that the appeal is admissible.
Substance
The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file
Arguments of the parties
24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal).
25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers.
26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal.
27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90.
Findings of the Court
28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment.
29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81).
30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56).
31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule.
32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case.
33. It follows that the first plea must be rejected.
The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order
Arguments of the parties
34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty.
35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed.
36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred.
37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned.
Findings of the Court
38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions.
39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights.
40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration.
41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied.
42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature.
43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case.
44. The first part of the second plea must therefore be rejected.
The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule
Arguments of the parties
45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case.
46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule.
47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case.
Findings of the Court
48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27).
49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author.
50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents.
51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author.
52. The second part of the second plea must therefore be rejected as unfounded.
The third part of the second plea alleging infringement of the obligation to state reasons
Arguments of the parties
53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities.
54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea.
Findings of the Court
55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48).
56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24). | 42. However, for legislation to be regarded as a restriction on the freedom of establishment, it is sufficient that it be capable of restricting the exercise of that freedom in a Member State by companies established in another Member State, without there being any need to establish that the legislation in question has actually had the effect of leading some of those companies to refrain from acquiring, creating or maintaining a subsidiary in the first Member State ( Test Claimants in the Thin Cap Group Litigation , paragraph 62). | 0 |
5,980 | 20. Moreover, contrary to the Irish Government’s contention, a young child can take advantage of the rights of free movement and residence guaranteed by Community law. The capacity of a national of a Member State to be the holder of rights guaranteed by the Treaty and by secondary law on the free movement of persons cannot be made conditional upon the attainment by the person concerned of the age prescribed for the acquisition of legal capacity to exercise those rights personally (to that effect, see, in particular, in the context of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, Series I, 1968 (II), p. 475), Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 21, and Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraphs 52 to 63, and, in relation to Article 17 EC, Garcia Avello , paragraph 21). Moreover, as the Advocate General made clear in points 47 to 52 of his Opinion, it does not follow either from the terms of, or from the aims pursued by, Articles 18 EC and 49 EC and Directives 73/148 and 90/364 that the enjoyment of the rights with which those provisions are concerned should be made conditional upon the attainment of a minimum age.
Directive 73/148 | 9 THE COURT CONSIDERS THAT REASONING TO BE UNCONVINCING . TAKING INTO ACCOUNT THE PRIOR SITUATION OUTLINED ABOVE IT IS EVIDENT THAT THE APPLICANT , AS FROM THE DATE OF THE JUDGMENT OF 6 MARCH 1979 , AND AT THE LATEST AS FROM THE DATE OF THE DECISION ADOPTED BY THE COMMISSION IN IMPLEMENTATION OF THAT JUDGMENT , NO LONGER HAD AN INTEREST IN PROSECUTING THE PROCEEDINGS WHICH IT HAD INSTITUTED AGAINST THE COMMISSION ' S DECISION RELATING TO THE INVITATION TO TENDER FOR THE FOURTH QUARTER OF 1978 . IN FACT FROM THAT TIME ONWARDS THE APPLICANT COULD FORESEE WITH CERTAINTY THAT ITS TENDER , LIKE THAT RELATING TO THE FIRST QUARTER , WOULD BE REJECTED IN VIEW OF THE PRINCIPLES LAID DOWN BY THE ABOVE-MENTIONED JUDGMENT OF THE COURT .
| 0 |
5,981 | 42 In this regard, it should be noted that the purpose of Article 5(6) of the Sixth Directive is, in particular, to ensure equal treatment as between a taxable person who withdraws goods from his business and an ordinary consumer who buys goods of the same type. In pursuit of that objective, Article 5(6) prevents a taxable person who has been able to deduct VAT on the purchase of goods used for his business from escaping payment of VAT when he transfers those goods from his business for private purposes and from thereby enjoying advantages to which he is not entitled by comparison with an ordinary consumer who buys goods and pays VAT on them (see Case C-20/91 De Jong [1992] ECR I-2847, paragraph 15, and Case C-48/97 Kuwait Petroleum [1999] ECR I-2323, paragraph 21, as well as, with regard to heading (a) of the first subparagraph of Article 6(2) of the Sixth Directive, which is based on the same principle, Case C-230/94 Enkler [1996] ECR I-4517, paragraph 33). | 59. Cela étant, dès lors qu’il est manifeste, sans que soit nécessaire la production par les parties d’éléments supplémentaires à cet égard, que le Tribunal a violé de manière suffisamment caractérisée son obligation de juger l’affaire dans un délai raisonnable, la Cour peut le relever (arrêt Deltafina, C‑578/11, EU:C:2014:1742, point 90). | 0 |
5,982 | 22
Nevertheless, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of 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 enable it to give a useful answer to the questions submitted to it (see, inter alia, judgments of 11 July 2006, Chacón Navas, C‑13/05, EU:C:2006:456, paragraph 33, and of 7 July 2011, Agafiţei and Others, C‑310/10, EU:C:2011:467, paragraph 27). | 9 Consequently, the provisions of Article 59 must apply in all cases where a person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established. | 0 |
5,983 | 65. In that respect, it is sufficient to note that, in accordance with consistent case-law, an objective of a purely economic nature cannot justify a restriction on a fundamental freedom guaranteed by the Treaty (see, to that effect, Case C‑120/95 Decker [1998] ECR I‑1831, paragraph 39; Verkooijen , paragraph 48; Case C‑171/08 Commission v Portugal [2010] ECR I‑0000, paragraph 71). | 32 The answer to the second and third questions must therefore be that the limitation of the effects in time of the Barber judgment does not apply to the right to join an occupational pension scheme and that, in this context, there is no scope for any analogous limitation.
The fourth question | 0 |
5,984 | 88. In so far as the provisions of Articles 31 and 40 of the EEA Agreement have the same legal scope as the substantially identical provisions of Articles 49 TFEU and 63 TFEU (see Case C-521/07 Commission v Netherlands [2009] ECR I-4873, paragraph 33, and Case C-72/09 Établissements Rimbaud [2010] ECR I-10659, paragraph 22), all of the foregoing considerations may, in circumstances such as those of the present case, be transposed, mutatis mutandis , to Articles 31 and 40 of that agreement.
The temporal effects of the judgment | 15 LEGISLATION WHICH RESTRICTS OR PROHIBITS CERTAIN FORMS OF ADVERTISING AND CERTAIN MEANS OF SALES PROMOTION MAY , ALTHOUGH IT DOES NOT DIRECTLY AFFECT IMPORTS , BE SUCH AS TO RESTRICT THEIR VOLUME BECAUSE IT AFFECTS MARKETING OPPORTUNITIES FOR THE IMPORTED PRODUCTS . THE POSSIBILITY CANNOT BE RULED OUT THAT TO COMPEL A PRODUCER EITHER TO ADOPT ADVERTISING OR SALES PROMOTION SCHEMES WHICH DIFFER FROM ONE MEMBER STATE TO ANOTHER OR TO DISCONTINUE A SCHEME WHICH HE CONSIDERS TO BE PARTICULARLY EFFECTIVE MAY CONSTITUTE AN OBSTACLE TO IMPORTS EVEN IF THE LEGISLATION IN QUESTION APPLIES TO DOMESTIC PRODUCTS AND IMPORTED PRODUCTS WITHOUT DISTINCTION .
| 0 |
5,985 | 21 Here, it must be pointed out that Article 36 of the Treaty, whilst it allows the maintenance of restrictions on the free movement of goods justified on grounds of public morality, public policy or the protection of the health and life of animals, which are fundamental requirements recognised by Community law, cannot be applied where Community directives provide for harmonisation of the measures necessary to achieve the specific objective which would be furthered by reliance upon it (see, in particular, Case C-5/94 The Queen v MAFF ex parte Hedley Lomas [1996] ECR I-2553, paragraph 18). Its application is also excluded when the need to protect consumers arises. | 18 Article 36 of the Treaty allows the maintenance of restrictions on the free movement of goods, justified on grounds of the protection of the health and life of animals, which constitutes a fundamental requirement recognized by Community law. However, recourse to Article 36 is no longer possible where Community directives provide for harmonization of the measures necessary to achieve the specific objective which would be furthered by reliance upon this provision. | 1 |
5,986 | 101. In that regard, it must be borne in mind that when assessing the generic character of a name, it is necessary, under Article 3(1) of Regulation No 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 Case C‑132/05 Commission v Germany [2008] ECR I‑957, paragraph 53). | 49 It follows that the amendments made in 1995 to the 1980 Agreement have had the effect of creating the framework of a more intensive cooperation between the United States of America and the Kingdom of Belgium, which entails new and significant international commitments for the latter. | 0 |
5,987 | 23 It is settled case-law that, whilst those explanatory notes may be regarded as a valuable aid to the interpretation of the CN, they do not have legally binding force, so that it is necessary, where appropriate, to examine whether their content is in accordance with the actual provisions of the Common Customs Tariff and whether they alter the meaning of those provisions (see, in particular, Case C-35/93 Develop Dr Eisbein [1994] ECR I-2655, paragraph 21, Case C-201/96 LTM, cited above, paragraph 17, and Case C-328/97 Glob-Sped, cited above, paragraph 26). | 6 The system of the additional levy, as introduced by Article 5c of Regulation No 856/84, is intended to reduce production in the milk sector. Under that system, the Community authorities fix the maximum quantity which may be produced in the Community as a whole and then allocate it amongst producers in the Member States by giving each of them a quota known as "reference quota". If the producer exceeds that quota, he has to pay an additional levy, which constitutes a penalty. | 0 |
5,988 | 37. When such an entity infringes competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, to that effect, Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 145, and Akzo Nobel and Others v Commission , paragraph 56). | 34 It must therefore be concluded that the option introduced by the second sentence of Article 18(1) of raising the percentage of transmission time for advertising to 20% of the daily total may also be used for forms of publicity which, whilst not constituting `offers to the public', nevertheless, like them and because of the way in which they are presented, require more time than spot advertisements. | 0 |
5,989 | 39. Before the referring court, the Secretary of State for Business, referring to the judgments in Rockfon (C‑449/93, EU:C:1995:420) and Athinaïki Chartopoiïa (C‑270/05, EU:C:2007:101), contends that the term ‘establishment’, for the purposes of Article 1(1)(a)(ii) of Directive 98/59, means the unit to which the workers are assigned to carry out their duties, and that the same meaning should be conferred on that term as that given to it for the purposes of Article 1(1)(a)(i) of Directive 75/129 and Article 1(1)(a)(i) of Directive 98/59. | 10 THE ANSWER TO THE QUESTIONS THUS UNDERSTOOD IS THAT THE PURPOSE OF ARTICLE 119 IS TO ENSURE THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN FOR THE SAME WORK . THE DIFFERENCES IN PAY PROHIBITED BY THAT PROVISION ARE THEREFORE EXCLUSIVELY THOSE BASED ON THE DIFFERENCE OF THE SEX OF THE WORKERS . CONSEQUENTLY THE FACT THAT PART-TIME WORK IS PAID AT AN HOURLY RATE LOWER THAN PAY FOR FULL-TIME WORK DOES NOT AMOUNT PER SE TO DISCRIMINATION PROHIBITED BY ARTICLE 119 PROVIDED THAT THE HOURLY RATES ARE APPLIED TO WORKERS BELONGING TO EITHER CATEGORY WITHOUT DISTINCTION BASED ON SEX .
| 0 |
5,990 | 55. Although it is true, in that regard, that, in the judgment under appeal, the Court of First Instance did not draw a clear and specific distinction between those two concepts but confused them, as the Advocate General pointed out in paragraphs 40 to 45 of his Opinion, that finding cannot give rise to the annulment of that judgment if the operative part of the judgment is shown to be well founded for other legal reasons (see to that effect, inter alia, Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28, and Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 58). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
5,991 | 83. Given that the declaration at issue, which was approved by the contested decision, is a constituent element of an international agreement (see paragraph 73 of the present judgment), that declaration falls within the scope of Article 218 TFEU. That article governs the negotiation and the conclusion of agreements between the European Union and third countries or international organisations, the expression ‘agreement’, in accordance with the case-law, being understood in a general sense to indicate any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation (see, to that effect, Opinion 1/75, EU:C:1975:145, p. 1360, Opinion 2/92, EU:C:1995:83, paragraph 8, and judgment in France v Commission , C‑327/91, EU:C:1994:305, paragraph 27). | 27 As the Court explained in Opinion 1/75 of 11 November 1975 ([1975] ECR 1355), Article 228 uses the expression "agreement" in a general sense to indicate any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation. | 1 |
5,992 | 35. In that regard, although the Court has repeatedly held that the prevention of tax avoidance and the need for effective fiscal supervision may be relied upon to justify restrictions on the exercise of fundamental freedoms guaranteed by the Treaty (see Case C-254/97 Baxter and Others [1999] ECR I‑4809, paragraph 18; Case C‑478/98 Commission v Belgium [2000] ECR I‑7587, paragraph 39; and Case C‑334/02 Commission v France [2004] ECR I‑2229, paragraph 27), it has also held that a general presumption of tax avoidance or fraud is not sufficient to justify a fiscal measure which compromises the objectives of the Treaty (see, to that effect, Commission v Belgium , paragraph 45, and Case C‑334/02 Commission v France , paragraph 27). | 45 As appears from Case C-28/95 Leur-Bloem v Inspecteur der Belastingsdienst/Ondernemingen Amsterdam 2 [1997] ECR I-4161, paragraph 44, a general presumption of tax evasion or tax fraud cannot justify a fiscal measure which compromises the objectives of a directive. That applies all the more in the present case, where the contested measure consists in an outright prohibition on the exercise of a fundamental freedom guaranteed by Article 73b of the Treaty. | 1 |
5,993 | 54
Furthermore, the Court has held that benefits, such as that at issue in the main proceedings, relating to the risk of reliance on care must be treated as sickness benefits, within the meaning of Article 4(1)(a) of Regulation No 1408/71, although, unlike sickness benefits stricto sensu, they are not in principle intended to be paid on a short-term basis and they may, particularly as regards the details of their application, display characteristics which in practice also resemble to a certain extent the invalidity and old-age branches (see, to that effect, judgment of 30 June 2011, da Silva Martins, C‑388/09, EU:C:2011:439, paragraphs 47 and 48). | 43 It is important therefore to verify in this case whether culture is an essential component of the contested decision, in the same way as industry, and cannot be dissociated from industry, or whether the `centre of gravity' of the decision is to be found in the industrial aspect of the Community action. | 0 |
5,994 | 28. In accordance with established case-law, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective that it pursues (see, inter alia, Case C‑336/97 Commission v Italy [1999] ECR I‑3771, paragraph 19, and Case C‑321/05 Kofoed [2007] ECR I‑5795, paragraph 41). | 46. La Cour a déjà considéré qu’«un emploi régulier» suppose une situation stable et non précaire sur le marché du travail dudit État membre et implique, à ce titre, un droit de séjour non contesté (arrêt du 8 novembre 2012, Gülbahce, C‑268/11, point 39 et jurisprudence citée). | 0 |
5,995 | 50
The Court has implicitly or explicitly refused to limit the temporal effects both in judgments in which such taxes were declared incompatible with EU law (with regard to the pollution tax laid down by OUG No 50/2008, see judgments of 7 April 2011 in Tatu, C‑402/09, EU:C:2011:219, and of 7 July 2011 in Nisipeanu, C‑263/10, not published, EU:C:2011:466 paragraphs 34 to 38; with regard to the tax on polluting emissions levied pursuant to Law No 9/2012, in its various versions, see order of 3 February 2014 in Câmpean and Ciocoiu, C‑97/13 and C‑214/13, not published, EU:C:2014:229, paragraphs 37 to 42, and judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraphs 56 to 59) and in those judgments in which it is indicated that such taxes should have been repaid with interest (see judgments of 18 April 2013 in Irimie, C‑565/11, EU:C:2013:250, and of 15 October 2014 in Nicula, C‑331/13, EU:C:2014:2285, paragraphs 40 to 42). | 49. In addition, it must be pointed out that, if such a possibility might itself give rise to abuse, the second paragraph of Article 11 of the VAT Directive permits Member States to adopt any measures needed to prevent tax evasion or avoidance through the use of the first paragraph of Article 11. | 0 |
5,996 | 50. As regards the proposal to amend the Meststoffenwet and adopt a regulation governing storage capacity for livestock manure, 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 and the Court cannot take account of any subsequent changes (see Case C-127/99 Commission v Italy [2001] ECR I-8305, paragraph 38, and Case C-122/02 Commission v Belgium [2003] ECR I-833, paragraph 11). | 32. Dans ce contexte, la Cour a jugé qu’une livraison de biens n’est effectuée «à titre onéreux», au sens des articles 2, point 1, de la sixième directive et 2, paragraphe 1, sous a), de la directive 2006/112, et n’est dès lors taxable, que s’il existe entre le fournisseur et le bénéficiaire un rapport juridique au cours duquel des prestations réciproques sont échangées, la rétribution perçue par le fournisseur constituant la contre-valeur effective du bien livré au bénéficiaire (voir, notamment, en matière de prestations de services, arrêts précités Tolsma, point 14, et GFKL Financial Services, point 18). | 0 |
5,997 | 34 It should be noted in this connection that when the same argument was relied on by the applicant in Case C-156/87 Gestetner, cited above, the Court pointed out at paragraph 57 that, with regard to imports of PPCs supplied by Fuji Xerox from Japan, the institutions took the view that Rank Xerox had not produced evidence that it had been led to buy the machines on grounds of self-protection. According to the information obtained the decision was a management decision taken by the Xerox group of companies. However, the volume of those imports was minimal in relation to the entire range of PPCs produced by Rank Xerox within the Community and in relation to the Community market as a whole (1%), and the resale prices were the same as the prices of equivalent machines produced by Rank Xerox. | 31. As regards Article 17(6) of the Sixth Directive, it is true that, as the Netherlands Government maintains, that provision makes it possible for a Member State to retain a national system which existed before the Sixth Directive came into force. However, that provision presupposes that the exclusions which Member States may retain pursuant to it were lawful under the Second Directive, which predated the Sixth Directive (see Case C-305/97 Royscot and Others [1999] ECR I-6671, paragraph 21). | 0 |
5,998 | 103. As the Court has held in its judgment in Joined Cases C‑143/88 and C‑92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I‑415, paragraph 18 (‘ Zuckerfabrik ’), references for preliminary rulings on the validity of a measure, like actions for annulment, allow the legality of acts of the Community institutions to be reviewed. In the context of actions for annulment, Article 242 EC enables applicants to request enforcement of the contested act to be suspended and empowers the Court to order such suspension. The coherence of the system of interim legal protection therefore requires that national courts should also be able to order suspension of enforcement of a national administrative measure based on a Community regulation, the legality of which is contested (see also Case C‑465/93 Atlanta Fruchthandelsgesellschaft and Others (I) [1995] ECR I‑3761, paragraph 22, and Case C‑68/95 T. Port [1996] ECR I‑6065, paragraph 49; on the Court’s lack of jurisdiction to order interim measures in the context of preliminary-ruling proceedings, see the order of the President of the Court in Case C‑186/01 R Dory [2001] ECR I‑7823, paragraph 13). | 86. La Cour a déjà eu l’occasion de confirmer la constatation du Tribunal selon laquelle la circonstance visée au point 3, troisième tiret, des lignes directrices, consistant en la cessation des infractions dès les premières interventions de la Commission, ne peut logiquement être une circonstance atténuante que s’il existe des raisons de supposer que les entreprises en cause ont été incitées à arrêter leurs comportements anticoncurrentiels par les interventions en question (voir, en ce sens, arrêt du 25 janvier 2007, Dalmine/Commission, C‑407/04 P, Rec. p. I‑829, point 158). | 0 |
5,999 | 30
It should be noted that it is settled case-law that Directive 80/987 has a social objective, which is to guarantee employees a minimum of protection at EU level in the event of the employer’s insolvency through payment of outstanding claims resulting from contracts of employment or employment relationships and relating to pay for a specific period (see, inter alia, judgments in Maso and Others, C‑373/95, EU:C:1997:353, paragraph 56; Walcher, C‑201/01, EU:C:2003:450, paragraph 38; and Tümer, C‑311/13, EU:C:2014:2337, paragraph 42). In that context, the Court has on many an occasion observed that claims for salary are, by their very nature, of great importance to the individual concerned (see, inter alia, judgment in Visciano, C‑69/08, EU:C:2009:468, paragraph 44 and the case-law cited). | 21 Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. | 0 |
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