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6,300 | 80. The Court has also stated that the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I‑4429, paragraph 85, and ThyssenKrupp Nirosta v Commission , paragraph 180). | 79 For another thing, it assists in meeting a desire to control costs and to prevent, as far as possible, any wastage of financial, technical and human resources. Such wastage is all the more damaging because it is generally recognised that the hospital care sector generates considerable costs and must satisfy increasing needs, while the financial resources which may be made available for health care are not unlimited, whatever the mode of funding applied. | 0 |
6,301 | 14 In its judgment in Case C-31/90, cited above, the Court answered that question by ruling that it had been possible since 23 December 1984 to rely on Article 4 of Directive 79/7 in order to have set aside national legislation which made entitlement to a benefit subject to the previous submission of a claim in respect of a different benefit which had since been abolished and which had entailed a condition discriminating against female workers. In the absence of appropriate measures for implementing Article 4 of Directive 79/7, women placed at a disadvantage by the maintenance of the discrimination were entitled to be treated in the same manner and to have the same rules applied to them as men who were in the same situation, since, where the directive had not been implemented correctly, those rules remained the only valid point of reference. | 34. Consequently, as the Advocate General noted at point 35 of her Opinion, in order for a supply of services to come within the scope of Article 47 of the VAT Directive, that supply must be connected to expressly specific immovable property. | 0 |
6,302 | 17 However, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case has been referred to it by the national court in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Bosman, paragraph 61, and Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20). | 27. Il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 20 novembre 2003, Commission/France, C‑296/01, Rec. p. I‑13909, point 43, et du 3 février 2011, Commission/Belgique, C-391/10, point 8). | 0 |
6,303 | 11 Both the Council and the French Government consider that the Commission may not rely on the Court's case-law according to which, failing publication or notification, it is for the party which has knowledge of a decision concerning it to request the whole text thereof within a reasonable period and the period for bringing an action can begin to run only from the moment at which the third party concerned acquires precise knowledge of the content of the decision in question and of the reasons on which it is based (Case C-180/88 Wirtschaftsvereiningung Eisen- und Stahlindustrie v Commission [1990] ECR I-4413). The Commission's position in this case cannot, in fact, be compared with that of a third party in a procedure falling within the spheres of competition or State aid. | 21 The Italian Government states, in its reply, that denaturing is a process designed to render alcohol toxic so that it cannot be neutralised or re-converted for use in food products. | 0 |
6,304 | 23 As the Court held in Manghera, cited above (paragraph 12), and Case C-347/88 Commission v Greece [1990] ECR I-4747 (paragraph 44), exclusive import rights give rise to discrimination prohibited by Article 37(1) against exporters established in other Member States. Such rights directly affect the conditions under which goods are marketed only as regards operators or sellers in other Member States. | 31. In Case C-228/00 Commission v Germany [2003] ECR I-1439, paragraphs 41 to 43, the Court laid down three conditions for establishing whether the use of waste as a fuel is a recovery operation of the kind referred to in point R1 of Annex II B to Directive 75/442. First, the essential purpose of the operation referred to by that provision must be the generation of energy. Secondly, the energy generated by, and recovered from, combustion of the waste must be greater than the amount of energy consumed during the combustion process and that part of the surplus energy generated during combustion must effectively be used, either immediately in the form of the heat produced by incineration or, after processing, in the form of electricity. Thirdly, the greater part of the waste must be consumed during the operation and the greater part of the energy generated must be recovered and used. | 0 |
6,305 | 20 In that regard, it is apparent from the Court's case-law that the derogation in question must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority (see, in particular, paragraph 35 of the judgment in Commission v Spain and paragraph 25 of the judgment in Commission v Belgium, cited above). The Court has also held that the activities of undertakings providing caretaking and security services are not normally directly and specifically connected with the exercise of official authority (Commission v Belgium, paragraph 26; see also Commission v Spain, paragraph 39). | 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 |
6,306 | 37. As regards, in particular, the compensation granted by an employer to a worker on termination of his employment, the Court has already stated that such compensation is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances arising from such termination (see Barber , cited above, paragraph 13, and Case C‑33/89 Kowalska [1990] ECR I-2591, paragraph 10; and Seymour-Smith and Perez , cited above, paragraph 25). | 89. If that requirement is not satisfied and, therefore, the right to a judicial remedy is not effective, or if another right guaranteed by EU law is infringed, the evidence obtained in the context of the criminal procedure and used in the administrative tax procedure must be disregarded and the contested decision which is founded on that evidence must be annulled if, as a result, the decision has no basis. | 0 |
6,307 | 30. As the Court has already stated, the sign selected by an advertiser as a keyword in the context of an internet referencing service is the means used by the advertiser to trigger the display of its advertisement and is thus used in the course of trade within the meaning of Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94 (Joined Cases C‑236/08 to C-238/08 Google France and Google [2010] ECR I-2417, paragraphs 49 to 52, and Case C‑278/08 BergSpechte [2010] ECR I‑2517, paragraph 18). | 49. First, it can be seen from the first two recitals in the preamble to Regulation No 1798/2003 that its purpose is to combat tax evasion and tax avoidance and to ensure compliance with the laws on VAT, to the benefit of the national budgets and of the sound operation of the internal market. | 0 |
6,308 | 28. Article 6(3) of the Habitats Directive establishes an assessment procedure intended to ensure, by means of a prior examination, that a plan or project not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site ( Waddenvereniging and Vogelbeschermingsvereniging , paragraph 34, and Case C‑182/10 Solvay and Others [2012] ECR I‑0000, paragraph 66). | 20 WHILST THE SPIRIT OF COOPERATION WHICH MUST GOVERN THE PERFORMANCE OF THE DUTIES ASSIGNED BY ARTICLE 177 TO THE NATIONAL COURTS ON THE ONE HAND AND THE COURT OF JUSTICE ON THE OTHER REQUIRES THE LATTER TO HAVE REGARD TO THE NATIONAL COURT ' S PROPER RESPONSIBILITIES , IT IMPLIES AT THE SAME TIME THAT THE NATIONAL COURT , IN THE USE WHICH IT MAKES OF THE FACILITIES PROVIDED BY ARTICLE 177 , SHOULD HAVE REGARD TO THE PROPER FUNCTION OF THE COURT OF JUSTICE IN THIS FIELD .
| 0 |
6,309 | 32 In the Lorenz case-law, and in later judgments (see, for example Case 84/82 Germany v Commission [1984] ECR 1451, paragraphs 11 and 12), the Court recognised that the preliminary stage of the procedure for reviewing aid under Article 93(3) is intended merely to allow the Commission to form a prima facie opinion of the partial or complete conformity with the Treaty of the aid schemes notified to it. The purpose of that provision, which seeks to prevent the implementation of aid contrary to the Treaty, requires that the prohibition laid down in that respect by the last sentence of Article 93(3) should be effective during the whole of the preliminary stage. That is why, in order to take account of the interest of Member States in being informed of the position quickly in spheres where the necessity to intervene may be of an urgent nature, the Commission must act diligently. If, after being informed by a Member State of a plan to grant aid, the Commission fails to initiate the contentious procedure within a reasonable period of time, the Member State may, after giving prior notice to the Commission, put the aid in question into effect, whereupon it will come under the system for existing aid. Guided by Articles 173 and 175 of the EC Treaty (now Article 232 EC), the Court has held that a reasonable delay should not exceed two months. | 20. Those two places could constitute a significant connecting factor from the point of view of jurisdiction, since each of them could, depending on the circumstances, be particularly helpful in relation to the evidence and the conduct of the proceedings ( eDate Advertising and Others , paragraph 41 and the case‑law cited).
The place where the damage occurred | 0 |
6,310 | 9 As the Court has held with respect to Article 37 of the Treaty, in a judgment (Case 45/75 Rewe v Hauptzollamt Landau [1976] ECR 181, paragraph 24), it is not until the expiration of the transitional period that the elimination of all discrimination provided for at the end of that period becomes unconditional and cannot be made subject, as far as its execution or effect is concerned, to the intervention of any act, either of the Community or of the Member States.
The first and second questions | 34. It follows from the foregoing that, unless it has been granted a marketing authorisation as a medicinal product, a patented product may not give rise to the grant of an SPC. | 0 |
6,311 | 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). | 29. It is, moreover, in this spirit that the Court has held that it is not essential, in order for there to be an ‘establishment’, for the unit in question to be endowed with a management which can independently effect collective redundancies ( Rockfon , paragraph 34, and point 2 of the operative part). Nor must there be a geographical separation from the other units and facilities of the undertaking. | 0 |
6,312 | 43. However, apart from Convention 90/436/EEC on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (OJ 1990 L 225, p. 10), no unifying or harmonising measure for the elimination of double taxation has yet been adopted at Community level, and Member States have not yet concluded any multilateral convention to that effect under Article 293 EC (see, to that effect, Case C‑336/96 Gilly [1998] I-2793, paragraph 23, and D , paragraph 50). | 41
On the other hand, that conclusion cannot be drawn automatically on the basis solely of the criminal record of the person concerned. It can result, where appropriate, only from a specific assessment by the national court of all the current and relevant circumstances of the case, in the light of the principle of proportionality, of the child’s best interests and of the fundamental rights whose observance the Court ensures. | 0 |
6,313 | 44. It should be added that, on the assumption that a Member State decides to adopt measures allowing the award of punitive damages to the person who has suffered discrimination, it is for the national legal system of each Member State to set the criteria for determining the extent of the penalty, provided that the principles of equivalence and effectiveness are respected (see, by analogy, judgments in Manfredi and Others , C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 92; Donau Chemie and Others , C‑536/11, EU:C:2013:366, paragraphs 25 to 27; and Hirmann , C‑174/12, EU:C:2013:856, paragraph 40). | 46. Although the Court explained in paragraph 56 of the judgment in Chacón Navas that, in view of the wording of Article 13 EC, the scope of Directive 2000/78 cannot be extended beyond the discrimination based on the grounds listed exhaustively in Article 1 of the directive, with the result that a person who has been dismissed by his employer solely on account of sickness cannot fall within the scope of the general framework established by Directive 2000/78, it nevertheless did not hold that the principle of equal treatment and the scope ratione personae of that directive must be interpreted strictly with regard to those grounds. | 0 |
6,314 | 119. En particulier, ainsi que la Cour l’a rappelé aux points 90 et 91 de l’arrêt Commission/Italie (C‑496/09, EU:C:2011:740), la République italienne a déjà fait l’objet de nombreux arrêts constatant un manquement en raison du fait qu’elle n’avait pas immédiatement et effectivement récupéré des aides déclarées illégales et incompatibles avec le marché intérieur. | 30. In those circumstances, the answer to the first question must be that Articles 4(4)(a) and 5(2) of the Directive are to be interpreted as entitling the Member States to provide specific protection for registered trade marks with a reputation in cases where a later mark or sign, which is identical with or similar to the registered mark, is intended to be used or is used for goods or services identical with or similar to those covered by the registered mark.
The second question | 0 |
6,315 | 31. In that regard it should first be recalled that, under settled case-law, Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less attractive the activities of a provider of services established in another Member State in which he lawfully provides similar services (Case C-164/99 Portugaia Construções [2002] ECR I-787, paragraph 16 and case-law therein cited). | 31 The argument of the French Government to the effect that since the CSG is really to be categorised as a tax it falls outside the scope of Regulation No 1408/71 and accordingly is not caught by the prohibition against overlapping legislation cannot be accepted. | 0 |
6,316 | 69. Moreover, according to consistent case-law, where a company has a shareholding in another company which gives it definite influence over that company’s decisions and allows it to determine that company’s activities, it is the provisions of the Treaty on the freedom of establishment that are to be applied (see, inter alia, Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 31; Test Claimants in Class IV of the ACT Group Litigation , paragraph 39; Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraph 27; Oy AA , paragraph 20; Case C‑112/05 Commission v Germany [2007] ECR I‑8995, paragraph 13; and Case C‑298/05 Columbus Container Services [2007] ECR I‑0000, paragraph 29). | 46. Although Article 5 of the Directive specifically concerns a strategy the purpose of which is to reduce waste going to landfill, the Directive as a whole plainly applies to waste in the liberal sense of the word, as it is defined in Article 2(a). | 0 |
6,317 | 28. It is clear from paragraphs 43 and 44 of Bronner that, in order to determine whether a product or service is indispensable for enabling an undertaking to carry on business in a particular market, it must be determined whether there are products or services which constitute alternative solutions, even if they are less advantageous, and whether there are technical, legal or economic obstacles capable of making it impossible or at least unreasonably difficult for any undertaking seeking to operate in the market to create, possibly in cooperation with other operators, the alternative products or services. According to paragraph 46 of Bronner , in order to accept the existence of economic obstacles, it must be established, at the very least, that the creation of those products or services is not economically viable for production on a scale comparable to that of the undertaking which controls the existing product or service. | 43 In the first place, it is undisputed that other methods of distributing daily newspapers, such as by post and through sale in shops and at kiosks, even though they may be less advantageous for the distribution of certain newspapers, exist and are used by the publishers of those daily newspapers. | 1 |
6,318 | 29
The questions of the referring court as to the classification of an employer, which is the statutory assignee of the injured party’s rights, as the ‘weaker party’ arise from the finding made by the Court that a social security institution, which is the statutory assignee of the rights of the person directly injured in a car accident cannot be classified as such, whereas a person to whom the rights of the person directly injured have passed, such as an heir, may be (see, to that effect, judgment of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraphs 42 and 44). | 52 AS HAS PREVIOUSLY BEEN OBSERVED , REGULATIONS NOS 797/79 AND 1152/79 ARE NOT INTENDED TO ALLOW A DEROGATION FROM THE PROTECTIVE MEASURES IN ISSUE AS REGARDS THE QUANTITIES OF DESSERT APPLES FROM CHILE ACCEPTED FOR IMPORT INTO THE COMMUNITY BUT ARE SOLELY DESIGNED TO ADJUST THEIR APPLICATION TO GOODS WHICH , AT THE TIME WHEN THOSE MEASURES ENTERED INTO FORCE , WERE ' ' IN TRANSIT ' ' WITHIN THE MEANING OF ARTICLE 3 ( 2 ) OF REGULATION NO 2707/72 . | 0 |
6,319 | 41. In order to assess the lawfulness of the pricing policy applied by a dominant undertaking, reference should be made, as a general rule, to pricing criteria based on the costs incurred by the dominant undertaking itself and on its strategy (see, to that effect, Case C‑62/86 AKZO v Commission [1991] ECR I‑3359, paragraph 74, and France Télécom v Commission , paragraph 108). | 26. In the light of the foregoing, the answer to the question must be that Article 9 of the directive is to be interpreted as meaning that it authorizes the Member States to derogate from the general prohibition on hunting protected species laid down by Articles 5 and 7 of the directive only by measures which refer in sufficient detail to the factors mentioned in Article 9(1) and (2). | 0 |
6,320 | 74. It is settled case-law that it is irrelevant that the failure of a Member State to fulfil its obligations is the result of technical difficulties it encounters (see, in particular, Case C-152/98 Commission vNetherlands , cited above, paragraph 41, and Case C-364/00 Commission vNetherlands [2002] ECR I-4177, paragraph 10). | 135 Thirdly, although it has been argued that the nationality clauses prevent the richest clubs from engaging the best foreign players, those clauses are not sufficient to achieve the aim of maintaining a competitive balance, since there are no rules limiting the possibility for such clubs to recruit the best national players, thus undermining that balance to just the same extent. | 0 |
6,321 | 16. In that regard, it should be borne in mind that the Court may decide not to give a preliminary ruling on the validity of a Community act where it is quite obvious that that determination, requested by the national court, bears no relation to the actual facts of the main action or its purpose (Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, paragraph 75 and the case‑law cited). | 20 In that regard, it should be pointed out that the prohibition, set out in Article 5(1) of the basic regulation, of the use of the term "brandy" to describe spirit drinks other than those referred to in Article 1(4) of that regulation, is laid down "without prejudice to measures adopted pursuant to Article 6". That reservation shows that the Council intended to permit the Commission to derogate from Article 5 in the context of the powers conferred on it by Article 6(1). | 0 |
6,322 | 87. Furthermore, the Court has held that a measure by which the public authorities grant to certain undertakings a tax exemption which, although not involving a transfer of State resources, places the persons to whom it applies in a more favourable financial situation than other taxpayers constitutes State aid (Case C‑387/92 Banco Exterior de España [1994] ECR I‑877, paragraph 14). | 34. Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of EU law, situations cannot exist which are covered in that way by EU law without those fundamental rights being applicable. The applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter ( Åkerberg Fransson EU:C:2013:105, paragraph 21). | 0 |
6,323 | 57. Such a result would not be in keeping with the system of Community rules on public procurement and concession contracts. It is accepted that it is open to a public authority to perform the public interest tasks entrusted to it by relying on its own administrative, technical and other resources, without being obliged to call on outside entities not belonging to its own departments ( Stadt Halle and RPL Lochau , paragraph 48; Coditel Brabant , paragraph 48; and Commission v Germany , paragraph 45). | 9 ALTHOUGH THE FIRST PARAGRAPH OF ARTICLE 234 MAKES MENTION ONLY OF THE OBLIGATIONS OF THE MEMBER STATES , IT WOULD NOT ACHIEVE ITS PURPOSE IF IT DID NOT IMPLY A DUTY ON THE PART OF THE INSTITUTIONS OF THE COMMUNITY NOT TO IMPEDE THE PERFORMANCE OF THE OBLIGATIONS OF MEMBER STATES WHICH STEM FROM A PRIOR AGREEMENT . HOWEVER , THAT DUTY OF THE COMMUNITY INSTITUTIONS IS DIRECTED ONLY TO PERMITTING THE MEMBER STATE CONCERNED TO PERFORM ITS OBLIGATIONS UNDER THE PRIOR AGREEMENT AND DOES NOT BIND THE COMMUNITY AS REGARDS THE NON-MEMBER COUNTRY IN QUESTION .
| 0 |
6,324 | 115. While it has not gone so far as to rule out the possibility of a State being liable in less restrictive conditions on the basis of national law, the Court has held that there are three conditions under which a Member State will be liable to make reparation for loss and damage caused to individuals as a result of breaches of Community law for which it can be held responsible, namely that the rule of law infringed must be intended to confer rights on individuals, that the breach must be sufficiently serious, and that 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 (see Brasserie du Pêcheur and Factortame , paragraphs 51 and 66; Case C-224/01 Köbler [2003] ECR I-10239, paragraphs 51 and 57; and Test Claimants in the FII Group Litigation , paragraph 209). | 52. This finding is also confirmed by the legal framework within which the contested regulation is situated, in particular by the Anglo-Irish Agreement, which forms the basis of the IFI Agreement. While the principal objective of the Anglo-Irish Agreement is the promotion of peace and reconciliation between the two communities in Northern Ireland, the objective pursued by the area of activity within which the IFI Agreement falls is, as is stated in Article 10(a) of the Anglo-Irish Agreement, the promotion of regional economic and social development. | 0 |
6,325 | 52. It is true that the Christmas bonus is to be granted or refused and its amount calculated by taking into account the amount of income from pensions received by the beneficiary. However, this is an objective, legally defined criterion which gives entitlement to that bonus without the competent authority being able to take other personal circumstances into consideration. Therefore, the grant of the Christmas bonus is not dependent on an individual assessment of the claimant’s personal needs, which is a characteristic feature of social assistance (see, to that effect, judgments in Hughes , C‑78/91, EU:C:1992:331, paragraph 17; Acciardi , C‑66/92, EU:C:1993:341, paragraph 15; and De Cuyper , C‑406/04, EU:C:2006:491, paragraph 23). | 41. Article 13(2)(a) of Regulation No 1408/71 expressly provides that a person employed in the territory of one Member State is to be subject to the legislation of that State ‘even if he resides in the territory of another Member State’. That provision would not be complied with if the residence condition laid down by the legislation of the Member State in whose territory the person is employed for affiliation to the compulsory insurance scheme which it establishes could be relied on against the persons referred to in Article 13(2)(a). With regard to those persons, the effect of that provision is to replace the residence condition with a condition based on employment in the territory of the Member State concerned (see Kits van Heijningen , paragraph 21). | 0 |
6,326 | 48. In particular, a dominant undertaking may demonstrate that the exclusionary effect arising from its conduct may be counterbalanced, or outweighed, by advantages in terms of efficiency which also benefit the consumer (see judgments in British Airways v Commission , C‑95/04 P, EU:C:2007:166, paragraph 86, and TeliaSonera Sverige , C‑52/09, EU:C:2011:83, paragraph 76). | 46. According to Article 2 of Directive 89/48, that directive applies to any national of a Member State wishing to pursue a " regulated profession" in a host Member State in a self-employed capacity or as an employed person. | 0 |
6,327 | 35
The exercise of that discretion is not, however, excluded from review by the Court. In particular, where a party claims that the institution competent in the matter has committed a manifest error of assessment, the EU judicature must verify whether that institution has examined, carefully and impartially, all the relevant facts of the individual case on which that assessment was based (see, inter alia, judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14; of 18 July 2007, Industrias Químicas del Vallés v Commission, C‑326/05 P, EU:C:2007:443, paragraph 77; of 6 November 2008, Netherlands v Commission, C‑405/07 P, EU:C:2008:613, paragraph 56; and of 22 December 2010, Gowan Comércio Internacional e Serviços, C‑77/09, EU:C:2010:803, paragraph 57). That duty to act diligently is inherent in the principle of sound administration and applies generally to the actions of the EU administration (judgment of 4 April 2017, European Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 34; see also, to that effect, judgment of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraph 95). | 34. It must thus be concluded that a benefit such as that received by Mr De Cuyper, the grant of which is not of a discretionary nature and which is intended to cover the risk linked to involuntary loss of employment where the worker retains his capacity for work, must be regarded as an unemployment allowance that falls within the scope of Regulation No 1408/71 even if, under a national provision, the recipient is exempt from registering as a job-seeker.
Article 18 EC | 0 |
6,328 | 21
As regards the merits, the General Court was right, in paragraphs 40 and 41 of the judgment under appeal, to rely on the principle, established in the settled case-law of the Court, that, in order to fulfil its obligation to respect the right of undertakings to be heard, the Commission is required to indicate expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and to set out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and whether it has been committed intentionally or negligently. It is also apparent from that case-law that the Commission is not, however, required, once it has indicated the main factual and legal criteria on which it will base its calculation of the amount of the fines, to specify the way in which it will use each of those elements in order to determine their level (see, inter alia, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 428 and 437). | 65 Just as the concept of waste is not to be understood as excluding substances and objects which are capable of economic reutilisation (see Vessoso and Zanetti, cited above, paragraph 9), it is not to be understood as excluding substances and objects which are capable of being recovered as fuel in an environmentally responsible manner and without substantial treatment. | 0 |
6,329 | 72. In the first place, protection of the environment constitutes one of the essential objectives of the Community (Case 240/83 ADBHU [1985] ECR 531, paragraph 13; Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 8; Case C‑213/96 Outokumpu [1998] ECR I-1777, paragraph 32; and Case C‑176/03 Commission v Council [2005] ECR I-0000, paragraph 41). With that objective in mind, Article 2 EC states that the Community shall have as its task to promote a ‘high level of protection and improvement of the quality of the environment’, and, for that purpose, Article 3(1)(l) EC provides for the establishment of a ‘policy in the sphere of the environment’. | 53. That reasoning is applicable to the present cases. It follows that the Kingdom of Spain is not in a situation comparable to that of the Member States whose vessels were included in the quotas at the time of the initial allocation and that, consequently, the Spanish Government cannot rely on the fishing activities of Spanish vessels between 1973 and 1976 in the North Sea during the initial reference period. Its situation is, however, comparable to that of the Member States which did not obtain such quotas, whether or not those Member States carried on fishing activities in the waters of the North Sea and/or the Baltic Sea during the initial reference period. | 0 |
6,330 | 18
In the present case, it should be recalled that the referring court is bound, as far as possible, to interpret national law in the light of EU law (see, inter alia, judgment in Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 113) and, in this case, the VAT Directive. Since the referring court queries the scope of a national provision the benefit of which is relied on in the main proceedings and which transposes the VAT Directive, it is not obvious that that question referred to the Court as to the interpretation to be given to that directive is irrelevant for the determination of that dispute. | 56
Furthermore, with regard to the objective of establishing a method for the swift determination of the Member State responsible without compromising the objective of processing asylum applications rapidly, referred to in recital 5 of Regulation No 604/2013, it is true that the bringing of an action may possibly postpone the definitive conclusion of the process for determining the Member State responsible. | 0 |
6,331 | 34 Lastly, it is clear from the judgment in Case C-190/89 Rich [1991] ECR I-3855, at paragraph 26, that if, by virtue of its subject-matter, a dispute falls outside the scope of the Convention, the existence of a preliminary issue which the court must resolve in order to determine the dispute cannot, whatever that issue may be, justify application of the Convention. | 66
Nevertheless, it cannot be ruled out a priori that, on the date of delivery of the present judgment, full compliance with the judgment of 7 May 2009 in Commission v Portugal (C‑530/07, EU:C:2009:292) will have taken place. Accordingly, the penalty payment must be imposed only if the failure to fulfil obligations persists on the date of delivery of the present judgment (see, by analogy, judgment of 15 October 2015 in Commission v Greece, C‑167/14, EU:C:2015:684, paragraph 50 and the case-law cited). | 0 |
6,332 | 71. It should be noted in that regard that the right to a refund of charges levied in a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court (see, inter alia, Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12, and Joined Cases C‑397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I‑1727, paragraph 84). The Member State is therefore required in principle to repay charges levied in breach of EU law (Joined Cases C-192/95 to C-218/95 Comateb and Others [1997] ECR I-165, paragraph 20; Metallgesellschaft and Others , paragraph 84; Case C‑147/01 Weber’s Wine World and Others [2003] ECR I‑11365, paragraph 93; and Test Claimants in the FII Group Litigation , paragraph 202). | 32. La récupération doit s’effectuer sans délai et, plus précisément, dans celui prévu dans la décision, adoptée au titre de l’article 108, paragraphe 2, TFUE, enjoignant la récupération d’une aide d’État ou, le cas échéant, dans celui fixé par la Commission par la suite. Une récupération tardive, postérieure aux délais impartis, ne saurait satisfaire aux exigences du traité (arrêt du 13 octobre 2011, Commission/Italie, C‑454/09, point 37). | 0 |
6,333 | 28 However, it is clear from settled case-law, that where such measures apply to any person or undertaking carrying on an activity in the territory of the host Member State, they may be justified where they serve overriding requirements relating to the public interest, are suitable for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it (see Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; Gebhard, cited above, paragraph 37; Case C-212/97 Centros [1999] ECR I-1459, paragraph 34; Pfeiffer, cited above, paragraph 19; Case C-424/97 Haim [2000] ECR I-5123, paragraph 57; Mac Quen and Others, cited above, paragraph 26, and Commission v Italy, cited above, paragraph 23). | 22. En deuxième lieu, il convient d’examiner si la modification considérée relève de l’une des hypothèses mentionnées à l’article 30, paragraphe 4, premier alinéa, sous a), dudit règlement, à savoir affecter la nature ou les conditions de mise en œuvre de l’opération concernée ou procurer un avantage indu à une entreprise ou à une collectivité publique, ces hypothèses portant sur les effets de la modification en question. | 0 |
6,334 | 40. It should be noted that, according to settled case-law, within the framework of the Authorisation Directive, Member States may not levy any fees or charges in relation to the provision of networks and electronic communication services other than those provided for by that directive (see, by analogy, Case C‑339/04 Nuova società di telecomunicazioni [2006] ECR I‑6917, paragraph 35; Case C‑85/10 Telefónica Móviles España [2011] ECR I‑1575, paragraph 21; and Joined Cases C‑55/11, C‑57/11 and C‑58/11 Vodafone España and France Telecom España [2012] ECR I-0000, paragraph 28). | 22 NOR WAS THE COMMISSION BOUND TO MENTION , IN THE STATEMENT OF OBJECTIONS , THE POSSIBILITY OF A CHANGE IN ITS POLICY AS REGARDS THE GENERAL LEVEL OF FINES , A POSSIBILITY WHICH DEPENDED ON GENERAL CONSIDERATIONS OF COMPETITION POLICY HAVING NO DIRECT RELATIONSHIP WITH THE PARTICULAR CIRCUMSTANCES OF THESE CASES .
| 0 |
6,335 | 310. In that regard, it must be emphasised that the statement of objections is a procedural and preparatory document which, in order to ensure that the rights of the defence may be exercised effectively, delimits the scope of the administrative procedure initiated by the Commission, thereby preventing it from relying on other objections in its decision terminating the procedure in question (see, in particular, the order in Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries v Commission [1986] ECR 1899, paragraphs 13 and 14). It is therefore inherent in the nature of that statement that it is provisional and liable to be changed during the assessment subsequently undertaken by the Commission on the basis of the observations submitted to it by the parties and other findings of fact (see, to that effect, SGL Carbon v Commission , paragraph 62). | 18 It is appropriate, first, briefly to recall the factual and legal circumstances of the Roenfeldt case, relating to the application of the provisions of a social security convention between the Kingdom of Denmark and the Federal Republic of Germany, which for the most part were similar to those at issue in this case. | 0 |
6,336 | 26. As the Court has held, the commercial use of specimens of the species listed in Annex B to Regulation No 338/97 is authorised where the conditions laid down in Article 8(5) of that regulation are complied with (Case C‑510/99 Tridon [2001] ECR I‑7777, paragraph 44). Indeed, the prohibition on trade contained in Article 8 of that regulation does not apply where the competent authority of the Member State concerned has proof that those specimens were acquired and, if they originated outside the Community, were introduced into it in accordance with the legislation in force for the conservation of wild fauna and flora. | 32 On the contrary, the principle of legal certainty, which is one of the objectives of the Convention (see the judgment in Case 38/81 Effer [1982] ECR 825, paragraph 6), militates against making the distinction advocated by Fulvio Bracco and Bracco SpA. | 0 |
6,337 | 62. The case-law has furthermore made clear that the anti-competitive effect must relate to the possible barriers which such a pricing practice may create to the growth on the retail market of the services offered to end users and, therefore, on the degree of competition in that market ( Deutsche Telekom v Commission , paragraph 252). | 28 Article 9 indicates that the refusal to grant the whole of the premium is not the consequence of mere failure to comply with the final date for slaughter: the failure must also bring about a considerable reduction in the number of animals actually eligible, a reduction which cannot be ascribed either to natural circumstances affecting the herd (Article 9(2)) or to reasons of force majeure (Article 9(3)). | 0 |
6,338 | 41. Therefore, the question arises as to whether an action by Roquette challenging the contested provisions under the fourth paragraph of Article 230 EC would undoubtedly have been admissible, since they are of direct and individual concern to it (see, to that effect, Case C-241/95 Accrington Beef and Others [1996] ECR I‑6699, paragraph 15). | 77. Those functions include not only the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services (‘the function of indicating origin’), but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising ( L’Oréal and Others , paragraph 58). | 0 |
6,339 | 52. Furthermore, the derogations provided for in Articles 296 EC and 297 EC must, in accordance with settled case-law in respect of derogations from fundamental freedoms (see, inter alia, Case C‑503/03 Commission v Spain [2006] ECR I‑1097, paragraph 45; Case C‑490/04 Commission v Germany [2007] ECR I‑6095, paragraph 86; and Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraph 50), be interpreted strictly. | 26 Directive 95/29, on the other hand, contains a number of specific provisions regarding maximum journey times, conditions of transport, animals' feeding and watering intervals, minimum rest periods and loading densities. | 0 |
6,340 | 16 In paragraph 40, after analysing the wording of Article 2(1) of the Directive, the Court concluded that the concept of jurisdiction of a Member State, used in the first indent of that provision, had to be understood as necessarily covering jurisdiction ratione personae over television broadcasters. | 25. According to established case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the time at which the action is brought, failing which it will be inadmissible. That purpose must continue, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (see, to that effect, Case 53/85 AKZO Chemie and AKZO Chemie UK v Commission [1986] ECR 1965, paragraph 21; and, by analogy, Case C‑19/93 P Rendo and Others v Commission [1995] ECR I‑3319, paragraph 13; Case C‑174/99 P Parliament v Richard [2000] ECR I‑6189, paragraph 33; and Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42). | 0 |
6,341 | 17 In order to interpret, for that purpose, the term .consideration. in Article 11A(1)(a) of the Sixth Directive, it should be recalled that, according to settled case-law, the consideration for a supply of goods may consist of a supply of services, and so constitute the taxable amount within the meaning of that provision, if there is a direct link between the supply of goods and the supply of services and if the value of those services can be expressed in monetary terms (see, in particular, Naturally Yours Cosmetics, paragraphs 11, 12 and 16, and Empire Stores, paragraph 12). | 58. In that regard, it follows from the case-law of the Court of Justice that, in any event, an appeal must necessarily have suspensory effect when it is brought against a return decision whose enforcement may expose the third-country national concerned to a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, thereby ensuring that the requirements of Articles 19(2) and 47 of the Charter are met in respect of that third-country national (see, to that effect, judgment in Abdida , C‑562/13, EU:C:2014:2453, paragraphs 52 and 53). | 0 |
6,342 | 12. It must be borne in mind at the outset that, according to settled case-law, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with Community law (see Case C‑80/94 Wielockx [1995] ECR I-2493, paragraph 16; Verkooijen , paragraph 32, and Case C-334/02 Commission v France [2004] ECR I-0000, paragraph 21). | 70. Ainsi, en l’espèce, le Tribunal a rappelé, au point 143 de l’arrêt attaqué, qu’une demande de mesures d’instruction présentée après la clôture de la procédure orale ne peut être retenue que si elle porte sur des faits de nature à exercer une influence décisive sur la solution du litige et que l’intéressé n’avait pu faire valoir avant la fin de la procédure orale (arrêt du 8 juillet 1999, Hoechst/Commission, C‑227/92 P, Rec. p. I‑4443, point 104). Il a conclu, à la suite de l’examen des arguments présentés par les requérants, que ceux-ci n’avaient pas avancé la moindre justification en vue d’établir que, lors de l’introduction de leur requête, ils n’avaient pu étayer leur affirmation concernant la surexploitation et l’érosion des ressources, en particulier, les raisons pour lesquelles il ne leur avait pas été possible, au stade de la requête ou à tout le moins de la réplique, de demander une expertise. Dès lors, le Tribunal a jugé cette demande irrecevable. | 0 |
6,343 | 29. That provision thus prescribes two stages. The first, envisaged in the provision’s first sentence, requires the Member States to carry out an appropriate assessment of the implications for a protected site of a plan or project when there is a likelihood that the plan or project will have a significant effect on that site (see, to this effect, Waddenvereniging and Vogelbeschermingsvereniging , paragraphs 41 and 43). | 59 The Court has thus concluded that Community law precludes the expulsion of a national of a Member State on general preventive grounds, that is to say an expulsion ordered for the purpose of deterring other aliens (see, in particular, Case 67/74 Bonsignore v Stadt Köln [1975] ECR 297, paragraph 7), especially where that measure has automatically followed a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that conduct represents for the requirements of public policy (Calfa, cited above, paragraph 27). | 0 |
6,344 | 69
While, admittedly, the role conferred on the Parliament in relation to the CFSP remains limited, since the Parliament is excluded from the procedure for negotiating and concluding agreements relating exclusively to the CFSP, the fact remains that the Parliament is not deprived of any right of scrutiny in respect of that European Union policy (see, to that effect, judgment of 24 June 2014, Parliament v Council, C‑658/11, EU:C:2014:2025, paragraphs 83 and 84). | 154. As observed by the Advocate General in point 77 of her Opinion, the protection of SPAs may not be limited to avoiding harmful human effects but must also include positive measures to preserve or improve the state of the area, as the case may be. | 0 |
6,345 | 31. As regards the concept of ‘re-utilisation’ for the purposes of Article 7(2)(b) of Directive 96/9, this is defined as ‘any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by online or other forms of transmission’. However, the reference to the ‘substantial’ nature of the re-utilised part is no part of the definition of the concept of ‘re-utilisation’ as such (see Case C‑203/02 The British Horseracing Board and Others [2004] ECR I‑10415, paragraph 50). | 35. It is apparent from the explanations provided by the national court and the Danish Government that that exclusion is based on the idea that, generally speaking, employees leave the labour market if they are eligible for a State retirement pension. As a result of that age-based assessment, a worker who satisfies the criteria for eligibility for a State retirement pension yet wishes to waive his pension rights temporarily and to continue in his career will not be able to claim severance allowance even though it is intended to protect him. Thus, in pursuing the legitimate aim of preventing the allowance from being claimed by persons who are not seeking new employment but will receive a replacement income in the form of a State retirement pension, the measure at issue deprives workers who have been made redundant and who wish to remain in the labour market of entitlement to the severance allowance merely because they could, inter alia because of their age, draw such a pension (see judgment in Ingeniørforeningen i Danmark , EU:C:2010:600, paragraph 44). | 0 |
6,346 | 38 However, as the Court held in paragraph 26 of the Midland Bank judgment, a taxable person who effects transactions in respect of which VAT is deductible and transactions in respect of which it is not may nevertheless deduct the VAT charged on the goods or services acquired by him, where those goods or services have a direct and immediate link with the output transactions in respect of which VAT is deductible, without it being necessary to differentiate according to whether Article 17(2), (3) or (5) of the Sixth Directive applies. | 27 It is also consonant with that aim of legal certainty that the court seised should be able readily to decide whether it has jurisdiction on the basis of the rules of the Convention, without having to consider the substance of the case. | 0 |
6,347 | 47. The Member States are therefore in principle free to set the objectives of their policy on games of chance and, where appropriate, to define in detail the level of protection sought (see, to that effect, Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 59). | 40. It follows that products containing a substance having a physiological effect cannot automatically be classified as medicinal products by function unless the competent administration has made an assessment, with due diligence, of each product individually, taking account, in particular, of that product’s specific pharmacological, immunological or metabolic properties, to the extent to which they can be established in the present state of scientific knowledge. | 0 |
6,348 | 54. When national courts apply domestic law they are therefore bound to interpret it, so far as possible, in the light of the wording and the purpose of the framework decision concerned in order to achieve the result sought by it. This obligation to interpret national law in conformity with European Union law is inherent in the system of the Treaty on the Functioning of the European Union, since it permits national courts, for matters within their jurisdiction, to ensure the full effectiveness of European Union law when they determine the disputes before them (see to that effect, in particular, Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraphs 113 and 114, and Case C-282/10 Dominguez [2012] ECR, paragraph 24). | 45 In addition, the risk of environmental pollution posed by unused leftover stone is not mitigated by the fact that its mineral composition is identical to the blocks of stone, inasmuch as that identity does not preclude the need for storage of the leftover material, which is an operation with an impact on the environment. | 0 |
6,349 | 64 Secondly, it is necessary to point out that the Court has already ruled that, according to the scheme of Regulation No 2176/84, cited above, "the purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country" and that "consequently, it is the expenses relating to sales on the domestic market which must be taken into account" (judgment in Case 250/85 Brother Industries Ltd v Council [1988] ECR 5683, at paragraph 18; judgment in Joined Cases 277/85 and 300/85 Canon Inc. and Others v Council [1988] ECR 5731, at paragraph 26; judgment in TEC, cited above, at paragraph 24; and judgment in Joined Cases 273/85 and 107/86 Silver Seiko Ltd and Others v Council [1988] ECR 5927, at paragraph 16). Since those principles have remained unchanged under the new basic regulation, that conclusion is equally valid for that regulation. | 24 While it is true that, in the absence of harmonisation of the activities at issue in the main proceedings, Member States remain, in principle, competent to define the exercise of those activities, they must none the less, when exercising their powers in this area, respect the basic freedoms guaranteed by the Treaty (see Joined Cases C-193/97 and C-194/97 De Castro Freitas and Escallier [1998] ECR I-6747, paragraph 23, and judgment of 3 October 2000 in Case C-58/98 Corsten [2000] ECR I-7919, paragraph 31). | 0 |
6,350 | 167
That said, where it is clear, without any need for the parties to adduce additional evidence in that regard, that the General Court infringed, in a sufficiently serious manner, its obligation to adjudicate on the case within a reasonable time, the Court of Justice may note that fact (judgments of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 57 and the case-law cited, and of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission, C‑617/13 P, EU:C:2016:416, paragraph 100 and the case-law cited). Consequently, the Court may, in the context of the appeal, find that there has been a breach of the right to a fair trial, as guaranteed by the second paragraph of Article 47 of the Charter, given the unreasonable length of the proceedings before the General Court. | 26. En vertu de l’article 4, paragraphes 1 et 2, de la directive 80/987, dans sa version initiale, lorsque les États membres entendaient opter pour une limitation de la garantie assurée par l’institution, ils pouvaient situer la garantie minimale de trois mois à l’intérieur d’une période de six mois antérieure à la date de référence. Après l’entrée en vigueur des modifications apportées à la directive 80/987, dans sa version initiale, par la directive 2002/74, il est même possible de situer cette période postérieurement à cette date de référence. Les États membres ont également la faculté de prévoir une garantie minimale limitée à huit semaines, à condition que cette période de huit semaines se situe à l’intérieur d’une période de référence plus longue, d’au moins dix-huit mois. | 0 |
6,351 | 17. It must be observed that the exception whereby the institutions may, in the review procedure, apply a method different from that used in the original investigation when the circumstances have changed must be interpreted strictly, for a derogation from or exception to a general rule must be interpreted narrowly (see judgment of 29 September 2011 in Case C‑82/10 Commission v Ireland , paragraph 44 and the case-law cited). | 229. Consequently, the undertakings in question must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. | 0 |
6,352 | 33. Some of the provisions of a regulation may, however, necessitate, for their implementation, the adoption of measures of application (see, to that effect, Case C-403/98 Monte Arcosu [2001] ECR I-103, paragraph 26) either by the Member States or by the EU legislature itself. | 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 |
6,353 | 62
Accordingly, the Court has held that a Member State cannot apply a reduced rate of VAT to supplies of services provided by private profit-making entities merely on the basis of an assessment of the nature of those services without taking into account, inter alia, the objectives pursued by those entities viewed as a whole and whether they are engaged in welfare work on a permanent basis. In the light of its overall objectives and the fact that any engagement in welfare work is not permanent, the professional category of lawyers as a whole cannot be regarded as devoted to social wellbeing (see, to that effect, judgment of 17 June 2010 in Commission v France, C‑492/08, EU:C:2010:348, paragraphs 45 and 46). | 60. Accordingly, European Union law does not in all circumstances require a national court to disapply domestic rules of procedure conferring the force of res judicata on a judgment, even if to do so would make it possible to remedy an infringement of European Union law by the judgment in question (see, to that effect, Kapferer , paragraph 21, and Fallimento Olimpiclub , paragraph 23). | 0 |
6,354 | 14 However, it is clear from the case-law of the Court that the onus may shift when that is necessary to avoid depriving workers who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay. Accordingly, when a measure distinguishing between employees on the basis of their hours of work has in practice an adverse impact on substantially more members of one or other sex, that measure must be regarded as contrary to the objective pursued by Article 119 of the Treaty, unless the employer shows that it is based on objectively justified factors unrelated to any discrimination on grounds of sex (Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, at paragraph 31, Case C-33/89 Kowalska [1990] ECR I-2591, at paragraph 16, and C-184/89 Nimz [1991] ECR I-297, at paragraph 15). Similarly, where an undertaking applies a system of pay which is wholly lacking in transparency, it is for the employer to prove that his practice in the matter of wages is not discriminatory, if a female worker establishes, in relation to a relatively large number of employees, that the average pay for women is less than that for men (Case 109/88 Danfoss [1989] ECR 3199, at paragraph 16). | 18. The Court also stresses that it is important for the referring court to set out the precise reasons why it is unsure as to the interpretation of EU law and why it considers it necessary to refer questions to the Court for a preliminary ruling (see, to that effect, inter alia, Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 46 and the case-law cited, and the Order in Case C‑432/10 Chihabi and Others [2011] ECR I‑5 (summary publication), paragraph 22). | 0 |
6,355 | 19. In that regard, the Court has held that Directive 2002/74 has direct effect in the event of non-transposition only in respect of insolvencies arising after 8 October 2005 (Case C-246/06 Velasco Navarro [2008] ECR I-105, paragraphs 27 to 29). | 28 Furthermore, it does not appear that the part of the area indicated by the GOR which lies outside the scope of the decree in question is subject to any special conservation measures whatsoever. | 0 |
6,356 | 8 The Court noted in particular that charges such as the 19 taxes on consumption in force in Italy were governed by common tax rules and were charged on categories of products irrespective of their origin in accordance with an objective criterion, namely the fact that the product falls into a specific category of goods. The Court pointed out that some of those taxes were charged on products intended for human consumption, including the tax on the consumption of bananas, and the fact that those goods were produced at home or abroad did not seem to have a bearing on the rate, the basis of assessment or the manner in which the tax was levied. Finally the Court stated that the revenue from those taxes was not earmarked for a specific purpose and that it constituted tax revenue identical to other tax revenue and, like it, helped to finance State expenditure generally in all sectors (see Case 193/85, paragraph 12). | 45. Next, as regards the existence of restrictions on the freedom of establishment and on the freedom to provide services referred to in Articles 43 EC and 49 EC respectively, it is settled case-law that measures which prohibit, impede or render less attractive the exercise of such freedoms constitute such restrictions (see, to that effect, Case C‑439/99 Commission v Italy [2002] ECR I‑305, paragraph 22; Case C‑442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, paragraph 31; and Case C‑330/07 Jobra [2008] ECR I‑9099, paragraph 19). | 0 |
6,357 | 64. In the present case, it is necessary that the rights conferred directly on workers by Article 6(b) of Directive 2003/88 be ensured in full in the national legal order ( Dellas and Others , paragraph 53). | 27 It is apparent from settled case-law that such findings, which concern purely matters of fact, cannot be reviewed by the Court of Justice in the context of an appeal, except where the clear sense of the evidence submitted to the Court of First Instance has been distorted (Case C-191/98 P Tzoanos v Commission [1999] ECR I-8223, paragraph 23; and Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 48). In that regard, the Commission has neither shown, nor even contended, that the Court of First Instance's findings were inconsistent or substantively inaccurate as regards the documents before it. In any event, it must be held that the findings of fact, which the Court of First Instance alone had jurisdiction to make and which the Commission challenges, evince no manifest error of assessment. | 0 |
6,358 | 52 Since, following the accession of the United Kingdom to the Communities, the EPA constituted the legislation by means of which the United Kingdom discharged its obligations under Article 119 of the Treaty and, subsequently, under Directive 75/117, the Court concluded that the EPA could not provide an appropriate ground of comparison against which to measure compliance with the principle of equivalence (Levez, paragraph 48). | 34. According to consistent case-law, in the context of competition law, the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (see, in particular, Case C‑41/90 Höfner and Elser [1991] ECR I‑1979, paragraph 21, and Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 38). | 0 |
6,359 | 36. In those circumstances, in relation to the exemption provided for under Article 13A(1)(b) of the Sixth Directive, the Court has held in substance that, by merely requiring, for the purposes of recognition as laboratories governed by private law for the application of that provision, that at least 40% of the medical tests carried out by the laboratories concerned must be intended for persons insured with a social security authority, the Member State in question did not go beyond the limits of its discretion under that provision (see L.u.P. , paragraphs 53 and 54). | 53. As to the second condition, it is also apparent from the case-law that, in order to determine whether establishments governed by private law may be recognised for the purpose of the application of the exemption provided for in Article 13A(1)(b) of the Sixth Directive, the national authorities may, in accordance with Community law and subject to review by the national courts, take into consideration, inter alia and in addition to the public interest of the activities of the taxable person in question and the fact that other taxable persons carrying on the same activities already have similar recognition, the fact that the costs incurred for the treatment in question may be largely met by health insurance schemes or other social security bodies ( Dornier , paragraphs 72 and 73). | 1 |
6,360 | 50. What subsequently happens to an object or a substance is not in itself determinative of its nature as waste, which, in accordance with Article 1(a) of the directive, is defined in terms of the holder of that object or substance discarding it or intending or being required to discard it (see, to that effect, ARCO Chemie Nederland and Others , paragraph 64, and KVZ retec , paragraph 52). | 23 Section 10(2) of the TGVG 1993, which exempts only Austrian nationals from having to obtain authorisation before acquiring a plot of land which is built on and thus from having to demonstrate, to that end, that the planned acquisition will not be used to establish a secondary residence, creates a discriminatory restriction against nationals of other Member States in respect of capital movements between Member States. | 0 |
6,361 | 63. In the second place, it is apparent from Article 52(1) TFEU that the protection of public health can justify restrictions on the fundamental freedoms guaranteed by the Treaty, such as the freedom of establishment (see, inter alia, Hartlauer , paragraph 46, and Apothekerkammer des Saarlandes and Others , paragraph 27). | 13 QUE , CONFORMEMENT A UN PRINCIPE COMMUN AUX SYSTEMES JURIDIQUES DES ETATS MEMBRES , DONT LES ORIGINES PEUVENT ETRE RETRACEES JUSQU ' AU DROIT ROMAIN , IL Y A LIEU , EN CAS DE CHANGEMENT DE LEGISLATION , D ' ASSURER , SAUF EXPRESSION D ' UNE VOLONTE CONTRAIRE PAR LE LEGISLATEUR , LA CONTINUITE DES STRUCTURES JURIDIQUES ; | 0 |
6,362 | 39
As regards the justification based on the need to ensure the effective collection of tax, raised by the German and Swedish Governments, it should be observed that, while the Court has previously accepted that it may constitute an overriding reason of the public interest capable of justifying a restriction of the freedoms of movement guaranteed by the FEU Treaty (see, to that effect, judgment of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 46 and the case-law cited), the legislation at issue in the main proceedings is not appropriate for attaining it, so that that objective cannot, in a case such as that in the main proceedings, justify an impediment to freedom of establishment. As the Commission observed, for a Member State to allow a resident transferring company to opt for deferred payment of tax would not affect that Member State’s possibility of requesting from that company the necessary information for collecting the tax due or of proceeding effectively to collecting it (see, by analogy, judgment of 19 June 2014, Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraphs 49 to 53). | 46. It should be noted, in that respect, that the Court has already recognised that the need to ensure the effective collection of income tax may constitute an overriding reason in the public interest capable of justifying a restriction on the freedom to provide services ( FKP Scorpio Konzertproduktionen , EU:C:2006:630, paragraph 35, and X , EU:C:2012:635, paragraph 39). | 1 |
6,363 | 72. By making the right of residence for a period of longer than three months conditional upon the person concerned not becoming an ‘unreasonable’ burden on the social assistance ‘system’ of the host Member State, Article 7(1)(b) of Directive 2004/38, interpreted in the light of recital 10 to that directive, means that the competent national authorities have the power to assess, taking into account a range of factors in the light of the principle of proportionality, whether the grant of a social security benefit could place a burden on that Member State’s social assistance system as a whole. Directive 2004/38 thus recognises a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particularly if the difficulties which a beneficiary of the right of residence encounters are temporary (see, by analogy, Grzelczyk , paragraph 44; Bidar , paragraph 56; and Förster , paragraph 48). | 76. Conversely, such a result could not arise with the automatic inclusion in the list under the eighth invitation to apply of applications already made under the fourth invitation by undertakings in the second category because, there being no possibility of those applications being amended, the indicators remained unchanged. | 0 |
6,364 | 31. It follows that the Commission clearly did not comply with its obligation to impose provisional duties only where there is reason to believe that the undertaking has been breached. In the circumstances of the present case, such conduct must be regarded as a sufficiently serious breach of a rule of Community law satisfying one of the conditions for the incurring of non-contractual liability by the Community (see, inter alia , Bergaderm and Goupil , paragraphs 42 to 44, and Commission v Camar and Tico , paragraphs 53 and 54). | 53. It is appropriate to point out also that, Community law confers a right to reparation where three conditions are met: the rule of law infringed must be 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 author of the act and the damage sustained by the injured parties (see the judgments cited above Brasserie du pêcheur and Factortame , paragraph 51, and Bergaderm and Goupil v Commission , paragraphs 41 and 42). | 1 |
6,365 | 34. Accordingly, where the anti-competitive object of the agreement is established it is not necessary to examine its effects on competition. Where, however, the analysis of the content of the agreement does not reveal a sufficient degree of harm to competition, the effects of the agreement should then be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (see Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraphs 28 and 30; Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission and Others [2009] ECR I‑9291, paragraph 55; Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑0000, paragraph 135; and Case C‑439/09 Pierre Fabre Dermo‑Cosmétique [2011] ECR I‑0000, paragraph 34). | 73. In respect of the issue of the onus of proving that interference, it must be pointed out, first, that if it were a matter for the national laws of the Member States, the consequence for trade mark proprietors could be that protection would vary according to the legal system concerned. The objective of ‘the same protection under the legal systems of all the Member States’ set out in the ninth recital in the preamble to the Directive, where it is described as fundamental, would not be attained (see, on the subject of the Directive, Zino Davidoff and Levi Strauss , cited above, paragraphs 41 and 42). | 0 |
6,366 | 24
In that regard, it must be stated that the wording of Article 1(2)(a) of Directive 93/42 was amended by Article 2 of Directive 2007/47, recital 6 of which states that software is a medical device in its own right when specifically intended by the manufacturer to be used for one or more of the medical purposes set out in the definition of a medical device. That recital further states that software for general purposes, when used in a healthcare setting, is not a medical device. The EU legislature thus made unequivocally clear that, in order for software to fall within the scope of Directive 93/42, it is not sufficient that it be used in a medical context; it is also necessary that the intended purpose, defined by the manufacturer, is specifically medical (judgment of 22 November 2012, Brain Products, C‑219/11, EU:C:2012:742, paragraphs 16 and 17). Software which does not meet that condition may fall within the scope of that directive only if it is an accessory to a medical device within the meaning of Article 1(2)(b) thereof. That software should then be treated, for the purposes of that directive, in accordance with Article 1(1) thereof, as a medical device in its own right. | 41. It must be pointed out, firstly, that the aims of Regulation No 3887/92 are, as set out in its seventh and ninth recitals, to monitor effectively compliance with the provisions on Community aid and to adopt provisions which prevent and penalise irregularities and fraud effectively. | 0 |
6,367 | 109 Finally, having regard to the essential nature of the formalities which were not complied with and of the probability of losses, or even fraud, to the detriment of the Community budget, the amount disallowed by the Commission, which was limited to 2% of the expenditure involved, cannot be regarded as excessive and disproportionate (Case C-49/94 Ireland v Commission [1995] ECR I-2683, paragraph 22). | 61. The combating of money laundering has not been completely harmonised at European Union level. Directive 2005/60 provides for a minimum level of harmonisation and, in particular, Article 5 thereof allows Member States to adopt stricter provisions, where those provisions seek to strengthen the combating of money laundering or terrorist financing.
– Overriding reasons in the public interest | 0 |
6,368 | 26. With regard to the first of those conditions, the settled case-law of the Court shows that only advantages granted directly or indirectly through State resources are to be considered aid within the meaning of Article 107(1) TFEU. The distinction made in that provision between aid granted by a Member State and aid granted through State resources does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 58 and the case-law cited). Thus, the prohibition in Article 107(1) TFEU may also cover, in principle, aid granted by public or private bodies established or appointed by the State to administer aid (see, to that effect, Pearle and Others , paragraph 34 and the case-law cited). | 31
As is apparent from the very wording of Article 3(3) of Directive 2009/28, and in particular the word ‘may’, Member States are not obliged, in order to promote the use of energy from renewable sources, the adoption of support schemes or, a fortiori, if they choose to adopt such schemes, to design such schemes in the form of tax exemptions or reductions. | 0 |
6,369 | 66. Various factors, set out in paragraphs 291 to 327 of the Kadi judgment, were advanced in support of the position stated by the Court in that judgment, and there has been no change in those factors which could justify reconsideration of that position, those factors being, essentially, bound up with the constitutional guarantee which is exercised, in a Union based on the rule of law (see Case C‑550/09 E and F [2010] ECR I‑6213, paragraph 44, and the judgment of 26 June 2012 in Case C‑335/09 P Poland v Commission [2012] ECR I‑0000, paragraph 48), by judicial review of the lawfulness of all European Union measures, including those which, as in the present case, implement an international law measure, in the light of the fundamental rights guaranteed by the European Union. | 44. It must also be borne in mind that the principle of fiscal neutrality precludes, inter alia, economic operators carrying on the same activities from being treated differently as far as the levying of VAT is concerned ( Kügler , cited above, paragraph 30). | 0 |
6,370 | 27. In those circumstances, since it considered that the outcome of the case before it depended on the interpretation of Community law, the Court of Appeal (England and Wales) (Civil Division) decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:
‘ Scope of the free movement provisions
(1) Where a trade union or association of trade unions takes collective action against a private undertaking so as to require that undertaking to enter into a collective bargaining agreement with a trade union in a particular Member State which has the effect of making it pointless for that undertaking to re‑flag a vessel in another Member State, does that action fall outside the scope of Article 43 EC and/or Regulation No 4055/86 by virtue of the EC’s social policy including, inter alia, Title XI of the EC Treaty and, in particular, by analogy with the Court’s reasoning in … Albany (paragraphs 52 to 64)?
Horizontal direct effect
(2) Do Article 43 EC and/or Regulation No 4055/86 have horizontal direct effect so as to confer rights on a private undertaking which may be relied on against another private party and, in particular, a trade union or association of trade unions in respect of collective action by that union or association of unions?
Existence of restrictions on free movement
(3) Where a trade union or association of trade unions takes collective action against a private undertaking so as to require that undertaking to enter into a collective bargaining agreement with a trade union in a particular Member State, which has the effect of making it pointless for that undertaking to re‑flag a vessel in another Member State, does that action constitute a restriction for the purposes of Article 43 EC and/or Regulation No 4055/86?
(4) Is a policy of an association of trade unions which provides that vessels should be flagged in the registry of the country in which the beneficial ownership and control of the vessel is situated so that the trade unions in the country of beneficial ownership of a vessel have the right to conclude collective bargaining agreements in respect of that vessel, a directly discriminatory, indirectly discriminatory or non-discriminatory restriction under Article 43 EC or Regulation No 4055/86?
(5) In determining whether collective action by a trade union or association of trade unions is a directly discriminatory, indirectly discriminatory or non‑discriminatory restriction under Article 43 EC or Regulation No 4055/86, is the subjective intention of the union taking the action relevant or must the national court determine the issue solely by reference to the objective effects of that action?
Establishment/services
(6) Where a parent company is established in Member State A and intends to undertake an act of establishment by reflagging a vessel to Member State B to be operated by an existing wholly owned subsidiary in Member State B which is subject to the direction and control of the parent company:
(a) is threatened or actual collective action by a trade union or association of trade unions which would seek to render the above a pointless exercise capable of constituting a restriction on the parent company’s right of establishment under Article 43, and
(b) after reflagging of the vessel, is the subsidiary entitled to rely on Regulation No 4055/86 in respect of the provision of services by it from Member State B to Member State A?
Justification
Direct discrimination
(7) If collective action by a trade union or association of trade unions is a directly discriminatory restriction under Article 43 EC or Regulation No 4055/86, can it, in principle, be justified on the basis of the public policy exception set out in Article 46 EC on the basis that:
(a) the taking of collective action (including strike action) is a fundamental right protected by Community law; and/or
(b) the protection of workers?
The policy of [ITF]: objective justification
(8) Does the application of a policy of an association of trade unions which provides that vessels should be flagged in the registry of the country in which the beneficial ownership and control of the vessel is situated so that the trade unions in the country of beneficial ownership of a vessel have the right to conclude collective bargaining agreements in respect of that vessel, strike a fair balance between the fundamental social right to take collective action and the freedom to establish and provide services, and is it objectively justified, appropriate, proportionate and in conformity with the principle of mutual recognition?
FSU’s actions: objective justification
(9) Where:
– a parent company in Member State A owns a vessel flagged in Member State A and provides ferry services between Member State A and Member State B using that vessel;
– the parent company wishes to re-flag the vessel to Member State B to apply terms and conditions of employment which are lower than in Member State A;
– the parent company in Member State A wholly owns a subsidiary in Member State B and that subsidiary is subject to its direction and control;
– it is intended that the subsidiary will operate the vessel once it has been re-flagged in Member State B with a crew recruited in Member State B covered by a collective bargaining agreement negotiated with an ITF affiliated trade union in Member State B;
– the vessel will remain beneficially owned by the parent company and be bareboat chartered to the subsidiary;
– the vessel will continue to provide ferry services between Member State A and Member State B on a daily basis;
– a trade union established in Member State A takes collective action so as to require the parent and/or subsidiary to enter into a collective bargaining agreement with it which will apply terms and conditions acceptable to the union in Member State A to the crew of the vessel even after reflagging and which has the effect of making it pointless for the parent to re-flag the vessel to Member State B,
does that collective action strike a fair balance between the fundamental social right to take collective action and the freedom to establish and provide services and is it objectively justified, appropriate, proportionate and in conformity with the principle of mutual recognition?
(10) Would it make any difference to the answer to [Question] 9 if the parent company provided an undertaking to a court on behalf of itself and all the companies within the same group that they will not by reason of the reflagging terminate the employment of any person employed by them (which undertaking did not require the renewal of short term employment contracts or prevent the redeployment of any employee on equivalent terms and conditions)?’
The questions referred
Preliminary observations | 71. Conversely, the undertakings in the first category had to submit an application under the first appropriate invitation to apply following the invitation in respect of which they had waived automatic inclusion of their original application. The application in question was, moreover, a reformulated one. | 0 |
6,371 | 41
In those circumstances, recognition of the existence of a single economic entity avoids costs, which are clearly included in the sale price of a product when that sale is carried out by an integrated sales department in the producer’s organisation, no longer being included where the same sales activity is carried out by a company which is legally distinct, even though economically controlled by the producer (see, to that effect and by analogy, judgment of 10 March 1992, Canon v Council, C‑171/87, EU:C:1992:106, paragraph 13). | 81. In the present context, the relevant functions to be examined are the function of indicating origin and the function of advertising.
i) Adverse effect on the function of indicating origin | 0 |
6,372 | Il y a donc lieu de distinguer les traitements inégaux permis au titre de l’article 65, paragraphe 1, sous a), TFUE des discriminations arbitraires interdites en vertu de l’article 65, paragraphe 3, TFUE. Il ressort, à cet égard, de la jurisprudence de la Cour que, pour qu’une réglementation fiscale nationale, qui, aux fins du calcul des droits de succession, opère une différence de traitement entre les résidents et les non-résidents puisse être considérée comme compatible avec les dispositions du traité FUE relatives à la libre circulation des capitaux, il est nécessaire que cette différence de traitement concerne des situations qui ne sont pas objectivement comparables ou qu’elle soit justifiée par une raison impérieuse d’intérêt général. Une telle réglementation doit être propre à garantir la réalisation de l’objectif poursuivi et ne pas aller au-delà de ce qui est nécessaire pour qu’il soit atteint (voir, en ce sens, arrêt du 26 mai 2016, Commission/Grèce, C‑244/15, EU:C:2016:359, points 34 et 35 ainsi que jurisprudence citée). | 31. In referring to opinions expressed by the Members of the European Parliament, Article 8 of the Protocol is closely linked to freedom of expression. Freedom of expression, as an essential foundation of a pluralist, democratic society reflecting the values on which the Union, in accordance with Article 2 TEU, is based, constitutes a fundamental right guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union which, pursuant to Article 6(1) TEU, has the same legal value as the Treaties. This freedom is also affirmed in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950. | 0 |
6,373 | 27. In addition, that requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 13 should be construed in such a way as to deprive the exemptions of their intended effect (see by analogy, inter alia, Case C‑86/09 Future Health Technologies [2010] ECR I‑5215, paragraph 30 and the case-law cited). | 56 The answer to the fourth part of the second question must therefore be that the limitation of the effects in time of the Barber judgment applies to survivors' pensions and that consequently equal treatment in this matter may be claimed only in relation to periods of service subsequent to 17 May 1990.
Question 2(5) | 0 |
6,374 | 44. Furthermore, the derogations provided for in Articles 296 EC and 297 EC must, in accordance with settled case-law in respect of derogations from fundamental freedoms (see, inter alia, Case C‑503/03 Commission v Spain [2006] ECR I‑1097, paragraph 45; Case C‑490/04 Commission v Germany [2007] ECR I‑6095, paragraph 86; and Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraph 50), be interpreted strictly. | 30 THAT WOULD NOT BE THE CASE, HOWEVER, IF IT WERE DEMONSTRATED THAT THE PREFERENTIAL TARIFF WAS, IN THE CONTEXT OF THE MARKET IN QUESTION, OBJECTIVELY JUSTIFIED BY ECONOMIC REASONS SUCH AS THE NEED TO RESIST COMPETITION ON THE SAME MARKET FROM OTHER SOURCES OF ENERGY THE PRICE OF WHICH WAS COMPETITIVE . IN DETERMINING WHETHER SUCH COMPETITION IS A REAL PROSPECT ACCOUNT SHOULD BE TAKEN NOT ONLY OF THE DIFFERENT PRICE LEVELS BUT ALSO OF THE COSTS INVOLVED IN CONVERSION TO A NEW SOURCE OF ENERGY, SUCH AS REPLACEMENT AND DEPRECIATION COSTS FOR HEATING EQUIPMENT . | 0 |
6,375 | 22. Neither the wording of Article 234 EC nor the aim of the procedure established by that article indicates that the EC Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision in the specific case where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State ( Dzodzi , paragraph 36; Leur-Bloem , paragraph 25, and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 19). | 26. La prévention ainsi organisée vise à ce que seules des aides compatibles soient mises à exécution. Afin de réaliser cet objectif, la mise en œuvre d’un projet d’aide est différée jusqu’à ce que le doute sur sa compatibilité soit levé par la décision finale de la Commission (arrêt CELF I, précité, point 48). | 0 |
6,376 | 56 It should be noted, first of all, that it is clear from the case-law of the Court that the purpose of the Cooperation Agreement is to consolidate the position of Moroccan workers and members of their families living with them in the host Member State as regards social security (Case C-179/98 Mesbah [1999] ECR I-7955, paragraph 36) and that, with specific regard to family allowances, the prohibition of discrimination laid down in Article 41(1) of the Agreement is guaranteed only within the limits of the conditions laid down in Article 41(3) (Case C-18/90 Kziber [1991] ECR I-199, paragraph 18). | 25 In paragraph 66 of its judgment in SDC, the Court held that, in order to be characterised as exempt transactions for the purposes of Article 13B(d)(3) and (5), the services provided by a data-handling centre must, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of a service described in those two provisions. | 0 |
6,377 | 42. In those circumstances, it must be borne in mind that it follows from the need for uniform application of European Union law and from the principle of equality that the terms of a provision of that law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question (see, to that effect, Case C‑195/06 Österreichischer Rundfunk [2007] ECR I‑8817, paragraph 24 and case‑law cited, and Case C‑396/09 Interedil [2011] ECR I‑0000, paragraph 42). | 61. Under the first indent of Article 174(3) EC, the Commission is, as a rule, obliged to take account, in its decisions in the field of the environment, of all available new scientific and technical data. That obligation applies, particularly, to the procedure under Article 95(5) and (6) EC, for which taking account of new data forms the very foundation. | 0 |
6,378 | 35. As regards the second justification put forward in the observations submitted to the Court, which is based on the danger that losses might be taken into account twice, the Court has accepted that the Member States must be able to prevent such a danger (see Marks & Spencer , paragraph 47, and Case C-347/04 Rewe Zentralfinanz [2007] ECR I‑2647, paragraph 47). | 54 In the third limb of the plea, Mr Lucaccioni takes issue with paragraphs 76, 77 and 87 of the judgment under appeal inasmuch as the Court of First Instance failed, other than by way of an `equitable' and entirely subjective assessment, to give any objective and verifiable explanation, or to state any reasons, for including the damage suffered in the benefits paid under Article 73 of the Staff Regulations and Article 14 of the Insurance Rules. | 0 |
6,379 | 30. In view of this, the Court held that the aim of protecting victims pursued by the First, Second and Third Directives, as has been pointed out in paragraph 27 of this judgment, requires the legal position of the owner of the vehicle, present in the vehicle at the time of the accident as a passenger, to be the same as that of any other passenger who is a victim of the accident ( Candolin and Others , paragraph 33). Likewise, it held that that aim also precludes national rules from restricting unduly the concept of passenger covered by insurance against civil liability in respect of the use of motor vehicles, by excluding from that concept persons who were on board a part of a vehicle which is not designed for their carriage and equipped for that purpose (see, to that effect, Farrell , paragraphs 28 to 30). | 45. It should be noted that, in that regard, the Court, at paragraphs 74 and 75 of the judgment in Halifax and Others (C‑255/02, EU:C:2006:121), held, in particular, that, in the sphere of VAT, an abusive practice can be found to exist only if, first, the transactions concerned, notwithstanding formal application of the conditions laid down by the relevant provisions of the Sixth Directive and the national legislation transposing it, result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions and, second, it is apparent from a number of objective factors that the essential aim of the transactions concerned is solely to obtain that tax advantage. | 0 |
6,380 | 29. At paragraph 80 of its judgment in Test Claimants in the Thin Cap Group Litigation , the Court held that legislation of a Member State may be justified by the need to combat abusive practices where it provides that interest paid by a resident subsidiary to a non-resident parent company is to be treated as a distribution only if, and in so far as, it ex ceeds what those companies would have agreed upon on an arm’s-length basis, that is to say, the commercial terms which those parties would have accepted if they had not formed part of the same group of companies. | 21. The fact that the marketability of the product in ‘normal conditions’ is an aspect inherent in the concept of ‘sound and fair marketable quality’ is indeed clearly apparent from the rules relating to export refunds for agricultural products inasmuch as, from Regulation No 1041/67 onwards, all the relevant regulations have adopted the concept of ‘sound and fair marketable quality’ as well as the criterion of the product’s marketability ‘in normal conditions’. As regards Regulation No 3665/87, it is the ninth recital which refers to that requirement (see, to that effect, SEPA , paragraphs 23 and 26). | 0 |
6,381 | 73. It follows that, to that extent also, the effect of the support scheme at issue in the main proceedings is, at least potentially, to curb electricity imports from other Member States (see, to that effect, Commission v Ireland , 249/81, EU:C:1982:402, paragraphs 27 to 29). | 39. In order to be described in those terms, the temporary supply of teachers, such as that at issue in the main proceedings, should be of a nature and quality such that, without recourse to such a service, there could be no assurance that the education provided by the host establishments and, consequently, the education from which their students benefit, would have an equivalent value (see, by analogy, Stichting Kinderopvang Enschede , paragraphs 27, 28 and 30). | 0 |
6,382 | 26. To that end, when national courts hold that the measure at issue constitutes State aid within the meaning of Article 107(1) TFEU, implemented in breach of the third sentence of Article 108(3) TFEU, they may decide to suspend the implementation of the measure in question and order the recovery of payments already made or to order provisional measures in order to safeguard both the interests of the parties concerned and the effectiveness of the Commission’s subsequent decision (see, by analogy, judgment in Deutsche Lufthansa , C‑284/12, EU:C:2013:755, paragraph 43, and order in Flughafen Lübeck , C‑27/13, EU:C:2014:240, paragraph 26). | 42 At paragraph 150 of the judgment under appeal, the Court of First Instance carried out the same examination as did this Court in AKZO. For sales of non-aseptic cartons in Italy between 1976 and 1981, it found that prices were considerably lower than average variable costs. Proof of intention to eliminate competitors was therefore not necessary. In 1982, prices for those cartons lay between average variable costs and average total costs. For that reason, in paragraph 151 of its judgment, the Court of First Instance was at pains to establish ° and the appellant has not criticized it in that regard ° that Tetra Pak intended to eliminate a competitor. | 0 |
6,383 | 62
Such an examination by the Commission of whether particular measures can be classified as State aid because the public authorities did not act in the same way as a private creditor requires a complex economic assessment (judgments of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 74, and of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraph 48). | 48. L’examen par la Commission de la question de savoir si des mesures déterminées peuvent être qualifiées d’aide d’État, en raison du fait que les autorités publiques n’auraient pas agi de la même manière qu’un créancier privé, requiert de procéder à une appréciation économique complexe (arrêts précités Espagne/Lenzing, point 59, et Frucona Košice/Commission, point 74). | 1 |
6,384 | 34. In paragraph 25 of the judgment in Schriever , the Court emphasised that, in order to find that there has been a transfer of a business, or of an independent part of an undertaking, for the purposes of Article 5(8) of the Sixth Directive, all of the elements transferred must, together, be sufficient to allow an independent economic activity to be carried on. | 34. As to those principles, it is settled case-law that such time-limits prescribed in national law may not be less favourable than those governing similar domestic applications (principle of equivalence) and may not be framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness) (see, in particular, Case 33/76 Rewe [1976] ECR 1989, paragraph 5, and Case C-159/00 Sapod Audic [2002] ECR I-5031, paragraph 52). | 0 |
6,385 | 64. Article 49 EC requires that all restrictions on the freedom to provide services be removed. Any measure prohibiting, impeding or rendering less attractive the exercise of that freedom is to be considered such a restriction (see Case C‑205/99 Analir and Others [2001] ECR I‑1271, paragraph 21, and Gräbner , cited above, paragraph 38). Article 49 EC precludes the application of any national legislation which, without objective justification, impedes a provider of services from actually exercising that freedom (see, in particular, Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 16, and Case C‑451/99 Cura Anlagen [2002] ECR I‑3193, paragraph 29). | 22 It is apparent from the foregoing provisions that, as the Commission contends, an export declaration must be made in writing, in order in particular to ensure that the information given by the exporter corresponds to the goods to be exported. It also follows from those provisions that although the declaration may be lodged before the goods are presented, it may not be lodged after they have left the customs territory. | 0 |
6,386 | 99
Lastly, as the Commission has argued, regard must be had to the large number of judgments, referred to in paragraph 93 above, which have established failures by the Portuguese Republic to fulfil its obligations in relation to the treatment of urban waste water. Repetition of unlawful conduct by a Member State is all the more unacceptable where it takes place in a sector in which the effects on human health and the environment are particularly significant. In that regard, as the Advocate General observed in point 89 of her Opinion, where a Member State repeatedly engages in unlawful conduct in a specific sector, this may be an indication that effective prevention of future repetition of similar infringements of EU law may require the adoption of a dissuasive measure, such as a lump sum payment (see, to that effect, judgment of 19 December 2012 in Commission v Ireland, C‑279/11, EU:C:2012:834, paragraph 70). | 77. As with all derogations, it should be noted, having regard to the purpose of that directive, namely the protection of consumers against unfair terms included in contracts concluded with consumers by sellers or suppliers, that it is to be strictly construed. | 0 |
6,387 | 31. Nor can the fact that DSV finally presented the goods at the customs office of destination outside the time‑limit for presentation set under the first transit procedure be regarded as meaning that the goods were removed from customs supervision. The Court has previously held that merely exceeding the time-limit for presentation of the goods in question set under Article 356(1) of the Implementing Regulation does not lead to a customs debt being incurred for removal from customs supervision within the meaning of that article (see, to that effect, judgment in X , C‑480/12, EU:C:2014:329, paragraph 45). | 69. It is however open to the EU institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (judgment in Commission v EnBW , C‑365/12 P, EU:C:2014:112, paragraph 65 and case-law cited). | 0 |
6,388 | 19 Those arguments cannot be accepted. Although in principle criminal legislation and the rules of criminal procedure are matters for which the Member States are responsible, it does not follow that this branch of the law cannot be affected by Community law (see, to that effect, Case 186/87 Cowan [1989] ECR 195, paragraph 19, and Case 203/80 Casati [1981] ECR 2595, paragraph 27). | 32. As the Advocate General noted in point 37 of his Opinion, and as is also clear from the last sentence of recital 63 in the preamble to Directive 2004/39, the absence of such secrecy is liable to compromise the smooth transmission of confidential information necessary for monitoring. | 0 |
6,389 | 39 It must also be noted that any undertaking which considers that it has suffered damage as a result of restrictive practices may rely before the national courts, particularly where the Commission decides not to act on a complaint, on the rights conferred on it by Article 85(1) and Article 86 of the Treaty, which produce direct effect in relations between individuals (Case 127/73 BRT v SABAM [1974] ECR 51, paragraph 16. | 16 AS THE PROHIBITIONS OF ARTICLES 85 ( 1 ) AND 86 TEND BY THEIR VERY NATURE TO PRODUCE DIRECT EFFECTS IN RELATIONS BETWEEN INDIVIDUALS, THESE ARTICLES CREATE DIRECT RIGHTS IN RESPECT OF THE INDIVIDUALS CONCERNED WHICH THE NATIONAL COURTS MUST SAFEGUARD . | 1 |
6,390 | 28. So far as concerns, next, the argument that the specific application of that presumpti on by the Commission, and confirmed by the General Court, rendered the presumption irrebuttable, it need merely be recalled that the fact that it is difficult to prove the opposite in order to rebut a presumption does not in itself mean that it is in fact irrebuttable (see, in particular, Case C‑508/11 P ENI v Commission EU:C:2013:289, paragraph 68 and the case-law cited). | 38
In the present case, it is common ground that Ms Ormazabal, who is a Spanish national, exercised her freedom of movement by moving to and residing in a Member State other than that of which she was a national when she left Spain for the United Kingdom in 1996. It is also common ground that she had the status of a ‘beneficiary’ of Directive 2004/38 within the meaning of Article 3(1) thereof and that she was resident in the United Kingdom under Article 7(1) or –– as the United Kingdom Government appears to accept –– Article 16(1) of the directive, at least until she acquired British citizenship by naturalisation. | 0 |
6,391 | 39
However, a tax which is incompatible with EU law, such as those mentioned in paragraph 35 above, must be repaid with interest (see, to that effect, judgments of 18 April 2013 in Irimie, C‑565/11, EU:C:2013:250, paragraphs 20 and 21, and 15 October 2014 in Nicula, C‑331/13, EU:C:2014:2285, paragraphs 27 and 28) and its amount must therefore no longer be considered as being incorporated into the market value of the vehicles on which that tax is levied. Since the residual amount of the tax in the value of those vehicles is equal to zero, that amount is thus necessarily lower than the new tax, in this case the environmental stamp duty, levied on imported second-hand vehicles of the same type, characteristics and wear (see, to that effect, judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 50). | 30
However, that interpretation cannot be inferred unequivocally from the wording of that provision. | 0 |
6,392 | 16. According to settled case-law, the exemptions provided for in Article 13 of the Sixth Directive have their own independent meaning in Community law and must therefore be given a Community definition (see Case C‑358/97 Commission v Ireland [2000] ECR I‑6301, paragraph 51; Case C‑315/00 Maierhofer [2003] ECR I‑563, paragraph 25; Case C‑275/01 Sinclair Collis [2003] ECR I‑5965, paragraph 22; Case C‑284/03 Temco Europe [2004] ECR I‑11237, paragraph 16; Case C‑428/02 Fonden Marselisborg Lystbådehavn [2005] ECR I‑1527, paragraph 27; and Case C‑455/05 Velvet & Steel Immobilien [2007] ECR I‑0000, paragraph 15). | 44. That interpretation of Note 5(B)(a) to Chapter 84 of the CN, the wording of which expressly takes into consideration two categories of units of automatic data-processing machines, that is to say that relating to the kind used ‘solely’ in an automatic data processing system and that relating to units used ‘principally’ in such a system, cannot, however, be accepted. | 0 |
6,393 | 108
In that respect, the Court has had occasion to rule that the exception in the first paragraph of Article 51 TFEU does not extend to certain activities that are ancillary or preparatory to the exercise of official authority (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraph 22; of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 38; of 30 March 2006, Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU:C:2006:208, paragraph 47; of 29 November 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraph 38; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, judgment of 21 June 1974, Reyners, 2/74, EU:C:1974:68, paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraphs 21 and 22; of 29 November 2007, Commission v Austria, C‑393/05, EU:C:2007:722, paragraphs 36 and 42; of 29 Novembre 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraphs 38 and 44; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraphs 36 and 41), powers of enforcement (see, to that effect, inter alia, judgment of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 37) or powers of coercion (see, to that effect, judgment of 30 September 2003, Anker and Others, C‑47/02, EU:C:2003:516, paragraph 61, and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 44). | 184IT IS THEREFORE NECESSARY TO ASCERTAIN WHETHER THE DISCONTINUANCE OF SUPPLIES BY UBC IN OCTOBER 1973 WAS JUSTIFIED .
| 0 |
6,394 | 34. As stated by the Advocate General in point 34 of his Opinion, that finding is also consistent with the principles of equal treatment and tax neutrality, which require that the Court’s recognition of the economic nature of the acquisition of holdings accompanied by an involvement by the parent company in the management of its subsidiaries and of companies controlled by it should be extended to the disposals of holdings which bring about the end of such involvement (see, by way of analogy, Wellcome Trust , paragraph 33, and Kretztechnik , paragraph 19). | 32 In particular, the covering of risks of accidents at work and occupational diseases has for a long time been part of the social protection which Member States afford to all or part of their population. | 0 |
6,395 | 100. According to the Court’s case-law, however, State aid, as defined in the Treaty on the Functioning of the European Union, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the European Union judicature must in principle and having regard both to the specific features of the case before it and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU (see, inter alia, Case C-83/98 P France v Ladbroke Racing and Commission [2000] ECR I-3271, paragraph 25, and Case C-487/06 P British Aggregates v Commission [2008] ECR I-10515, paragraph 111). | 48 In addition, it appears from the order for reference that MBL does not act at the instigation of the private individuals it represents, but solicits from them orders for tobacco and cigarettes which are then placed exclusively with EMU, the vendor. Lastly, MBL and EMU set out in general terms their reciprocal obligations in an agreement made in 1991 which makes clear that the risks inherent in fluctuation of exchange rates are to be borne by MBL and not by the purchasers themselves. | 0 |
6,396 | 72 The Court has consistently held (see, inter alia, Case C-466/93 Atlanta Fruchthandelsgesellschaft and Others v Bundesamt fuer Ernaehrung und Forstwirtschaft [1995] ECR I-0000, paragraph 16) that the statement of reasons required by Article 190 of the EEC Treaty must be appropriate to the nature of the measure in question. The reasoning of the institution which adopted the measure must be stated clearly and unequivocally, so as to inform persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review. | 30. Il résulte des éléments qui précèdent qu’une taxe dont le fait générateur est lié à la procédure d’autorisation générale permettant d’accéder au marché des services de communications électroniques relève du champ d’application de l’article 12 de la directive «autorisation». Les États membres doivent assurer qu’une telle taxe administrative ne soit imposée qu’aux fins décrites à l’article 12 de la directive «autorisation» et respecte les conditions qui y sont énoncées. | 0 |
6,397 | 25. It should be recalled, however, that new rules apply immediately to the future effects of a situation which arose under the old rules (Case 270/84 Licata v CES [1986] ECR 2305, paragraph 31, and Pokrzeptowicz-Meyer , paragraph 50). The Court has also ruled that, from the date of accession, the provisions of the original Treaties are to be binding on the new Member States and are to apply in those States under the conditions laid down in those Treaties and in the relevant Act of Accession (see Case C‑122/96 Saldanha and MTS [1997] ECR I‑5352, paragraph 13). | 115 The Court of First Instance correctly considered, at paragraph 61 of the contested judgment, that, unlike the provisions of the EC Treaty on State aid, which permanently empower the Commission to adopt decisions on its compatibility, the aid codes confer such power on the Commission only for a specified period. | 0 |
6,398 | 29. It must be pointed out that in considering equivalent two technical processes which result in an identical product, namely an outer surface of plastic, the explanatory notes in question comply with the case-law under which the decisive criterion for the tariff classification of goods lies in their objective characteristics and qualities, as defined in the relevant heading of the Common Customs Tariff and in the notes to the relevant sections or chapters (Case 200/84 Daiber [1985] ECR 3363, paragraph 13; Case C-11/93 Siemens Nixdorf [1994] ECR I-1945, paragraph 11; and Case C-339/98 Peacock [2000] ECR I-8947, paragraph 9). | 11 As the Court has repeatedly held, the decisive criterion for the customs classification of goods must be sought generally in their objective characteristics and qualities, as defined in the relevant heading of the Common Customs Tariff and in the notes to the sections or chapters (see in particular the judgment in Case 200/84 Daiber [1985] ECR 3363, paragraph 13). | 1 |
6,399 | 72. However, it cannot be accepted that a communication submitted by the Commission together with a draft directive, even where that communication is mentioned in the recitals in the preamble to that directive, gave rise to a legitimate expectation that the policies contained in it would be adhered to, where it is clear from Article 189a of the EC Treaty (now Article 250 EC) and Article 189c of the EC Treaty that the Commission may amend such a proposal at any time and that the Council may adopt an act constituting an amendment to the proposal (see, to that effect, Joined Cases C-13/92 to C-16/92 Driessen and Others [1993] ECR I-4751, paragraph 33), which is in fact the position in this case as regards the conditions in which a derogation may be authorised for the use of heavy fuel oils with a content of more than 1% by mass. | 11 Consequently, where the questions put by national courts concern the interpretation of a provision of Community law, the Court is, in principle, bound to give a ruling (see the judgment in Case C-231/89 Gmurzynska-Bscher v Oberfinanzdirektion Koeln [1990] ECR I-4003, paragraph 20). | 0 |
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