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6,500 | 46. As is apparent from settled case-law, in the application of Article 87(3) EC the Commission enjoys wide discretion, the exercise of which involves complex economic and social assessments which must be made in a Community context (see Joined Cases C‑75/05 P and C‑80/05 P Germany and Others v Kronofrance [2008] ECR I‑6619, paragraph 59 and the case-law cited). In adopting rules of conduct and announcing by publishing them that they will apply to the cases to which they relate, the Commission imposes a limit on the exercise of its aforementioned discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see Germany and Others v Kronofrance , paragraph 60 and the case-law cited). | 10 Accordingly, the question whether the objection of inadmissibility is well founded must be determined together with the substantive issues raised by the dispute.
Substance | 0 |
6,501 | 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. | 83. In assessing whether the condition of honest practice is satisfied, account must be taken first of the extent to which the use of the third party’s trade name is understood by the relevant public, or at least a significant section of that public, as indicating a link between the third party’s goods and the trade-mark proprietor or a person authorised to use the trade mark, and secondly of the extent to which the third party ought to have been aware of that. Another factor to be taken into account when making the assessment is whether the trade mark concerned enjoys a certain reputation in the Member State in which it is registered and its protection is sought, from which the third party might profit in selling his goods. | 0 |
6,502 | 41
The principle of the non-contractual liability of a State for damage caused to individuals by breaches of EU law for which the State can be held responsible is inherent in the EU legal order. The Court has held that individuals harmed have a right to compensation on the basis of that liability where three conditions are met, namely that the rule of EU law infringed is intended to confer rights on them, that the breach of that rule is sufficiently serious, and that there is a direct causal link between the breach and the damage sustained by the individuals (see, to that effect, judgments of 19 November 1991, Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 35, and of 5 March 1996, Brasserie du Pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraphs 31 and 51). | 30. The scope of Directive 2001/83, as amended by Directive 2004/27, is thus limited to products which are industrially produced medicinal products, to the exclusion of those which do not correspond to one or other of the definitions of medicinal products listed in Article 1(2)(a) and (b) of that directive. | 0 |
6,503 | 36
It is clear, moreover, from the case-law of the Court that the examination of the likelihood of confusion in part of the European Union must be based on a global assessment of all the relevant factors in the case concerned and that that assessment must include a visual, phonetic or conceptual comparison of the mark and the sign used by the third party, which may lead, in particular for linguistic reasons, to different conclusions for one part of the European Union and for another (see, to that effect, judgment of 22 September 2016, combit Software, C‑223/15, EU:C:2016:719, paragraphs 31 and 33 and the case-law cited). | 18 AS AND WHEN SUCH COMMON RULES COME INTO BEING, THE COMMUNITY ALONE IS IN A POSITION TO ASSUME AND CARRY OUT CONTRACTUAL OBLIGATIONS TOWARDS THIRD COUNTRIES AFFECTING THE WHOLE SPHERE OF APPLICATION OF THE COMMUNITY LEGAL SYSTEM . | 0 |
6,504 | 72. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice ( General Motors v Commission , paragraph 52; Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 83; and judgment of 31 January 2008 in Case C‑103/07 P Angelidis v Parliament , paragraph 46). | 41 AT THE SAME TIME , CONSIDERATION MUST BE GIVEN TO THE QUESTION WHETHER , AS THE DEFENDANT MAINTAINS , THE APPLICANT IS NOT , ON ACCOUNT OF HIS CONDUCT , PARTIALLY RESPONSIBLE FOR THE DAMAGE SUFFERED .
| 0 |
6,505 | 60. Even though it is possible to interpret the decision at issue in the manner argued for by the French Republic, the different interpretation adopted by the General Court does not reveal any distortion of its content (see, to this effect, Case C‑260/09 P Activision Blizzard Germany v Commission [2011] ECR I‑419, paragraph 54). | 45. As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on the consumer. As is apparent from the case-law, that is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (see Banco Español de Crédito , paragraph 40 and case-law cited). | 0 |
6,506 | À cet égard, la Cour a déjà jugé que la réglementation d’un État membre qui fait dépendre l’application d’un taux réduit du lieu de résidence du défunt ou du bénéficiaire au moment du décès, lorsqu’elle aboutit à ce que les successions impliquant des non-résidents soient soumises à une charge fiscale plus lourde que celle n’impliquant que des résidents, constitue une restriction à la libre circulation des capitaux (voir, en ce sens, arrêts du 17 octobre 2013, Welte, C‑181/12, EU:C:2013:662, points 25 et 26 ; du 3 septembre 2014, Commission/Espagne, C‑127/12, non publié, EU:C:2014:2130, point 58, ainsi que du 26 mai 2016, Commission/Grèce, C‑244/15, EU:C:2016:359, point 29). | 69. As the Advocate General observed at point 63 of his Opinion, the expression ‘essential characteristics’ must be understood as referring to the most important elements of the sign. | 0 |
6,507 | 43. That approach is perfectly consistent with the case-law of the Court of Justice. Thus, at paragraphs 181 to 183 of the judgment in Limburgse Vinyl Maatschappij and Others v Commission , the Court held, in particular, that the administrative procedure may involve an examination in two successive stages, each corresponding to its own internal logic. The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by the Community legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned. | 26
It is apparent, in that regard, from recital 4 in the preamble to Directive 2003/86, that that directive has the general objective of facilitating the integration of third country nationals in Member States by making family life possible through reunification (see judgment in Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 69). | 0 |
6,508 | 42. The Court has already held that a national provision which merely authorises recourse to successive fixed-term contracts, in a general and abstract manner by a rule of statute or secondary legislation, does not accord with the requirements as stated in Clause 5(1) of the Framework Agreement ( Adeneler and Others , paragraph 71). | 40. S’agissant du premier critère, il importe de relever que les fonctionnaires qui bénéficient d’un régime de pension doivent être considérés comme constituant une catégorie particulière de travailleurs. En effet, ceux-ci ne se distinguent des travailleurs groupés dans une entreprise ou un groupement d’entreprises, dans une branche économique ou un secteur professionnel ou interprofessionnel qu’en raison des caractéristiques propres qui régissent leur relation d’emploi avec l’État, avec d’autres collectivités ou employeurs publics (arrêts précités Griesmar, point 31, et Niemi, point 48). | 0 |
6,509 | 39. Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 92; Servizi Ausiliari Dottori Commercialisti , paragraph 66; and Essent Netwerk Noord and Others , paragraph 84). | 35. The fact that, according to national rules, the breach complained of is attributable to the legislature cannot affect the requirements inherent in the protection of the rights of individuals who rely on Community law and, in this instance, the right to obtain redress in the national courts for damage caused by that breach. | 0 |
6,510 | 49. In the event that the national court concludes that the national provisions at issue do not satisfy the requirement of EU law that measures to counter VAT evasion be effective and dissuasive, that court would have to ensure that EU law is given full effect, if need be by disapplying those provisions and thereby neutralising the consequence referred to in paragraph 46 above, without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure (see, to that effect, judgment in Berlusconi and Others , C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraph 72 and the case-law cited, and judgment in Kücükdeveci , C‑555/07, EU:C:2010:21, paragraph 51 and the case-law cited). | 36. Ainsi, le principe de neutralité fiscale, principe fondamental du système commun de la TVA, s’oppose, d’une part, à ce que des marchandises ou des prestations de services semblables, qui se trouvent donc en concurrence les unes avec les autres, soient traitées de manière différente du point de vue de la TVA et, d’autre part, à ce que des opérateurs économiques qui effectuent les mêmes opérations soient traités différemment en matière de perception de la TVA (voir, notamment, arrêts du 29 octobre 2009, SKF, C‑29/08, Rec. p. I‑10413, point 67 et jurisprudence citée, ainsi que Orfey Balgaria, précité, point 34). | 0 |
6,511 | 46. The Court has consistently held that the principle of the right to a fair hearing, to which the principle of the right to be heard is closely linked, applies not only to citizens but also to the Member States. As regards the latter, that principle has been recognised in the context of proceedings brought by a Community institution against Member States, such as those concerning the review of State aid or the monitoring of Member State conduct as regards public enterprises (see, for example, Joined Cases C-48/90 and C-66/90 Netherlands and PTT Nederland v Commission [1992] ECR I-565, paragraph 44, and Case C-288/96 Germany v Commission [2000] ECR I-8237, paragraph 99). | 46. In contrast, Article 35 EU confers no jurisdiction on the Court of Justice to entertain any action for damages whatsoever. | 0 |
6,512 | 82 According to the Court's case-law, that is the case where the international commitments fall within the scope of the common rules (AETR judgment, paragraph 30), or in any event within an area which is already largely covered by such rules (Opinion 2/91, paragraph 25). In the latter case, the Court has held that Member States may not enter into international commitments outside the framework of the Community institutions, even if there is no contradiction between those commitments and the common rules (Opinion 2/91, paragraphs 25 and 26). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
6,513 | 30
As the Court of Justice has held in its settled case-law, both an applicant’s legal interest in bringing proceedings and the purpose of the action must exist not merely when the action is brought, but must continue to subsist until delivery of final judgment, failing which there will be no need to adjudicate. That presupposes that the action is capable, by its outcome, of procuring an advantage to the party bringing it (judgments of 19 October 1995, Rendo and Others v Commission, C‑19/93 P, EU:C:1995:339, paragraph 13; of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42, and of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 61). | 33. For Article 11(a) of Directive 69/335 to have practical effect, therefore, ‘issue’, for the purposes of that provision, must include the first acquisition of securities immediately consequent upon their issue. | 0 |
6,514 | 24. In that regard, it should be stated that Ritrama seeks to challenge Folien Fischer’s and Fofitec’s interest in pursuing the action in the proceedings before the referring court and contests the relevance of the question referred. However, as the Court has held, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law (see Case C-11/07 Eckelkamp and Others [2008] ECR I-6845, paragraph 32, and Joined Cases C-165/09 to C-167/09 Stichting Natuur en Milieu and Others [2011] ECR I-4599, paragraph 47). | 103 Consequently, the ban on the export of live bovine animals cannot be regarded as a manifestly inappropriate measure. | 0 |
6,515 | 56. The Court has held in particular that the creation of a grouping of municipalities and the taking over by the latter of certain competences of municipalities forming part of that grouping constitutes a rearrangement of the exercise of public powers and cannot therefore fall within Directive 77/187 (see Henke , paragraphs 16 and 17), while holding in other cases that the transfer of staff carrying out activities of an economic nature within a public administration falls within that directive (see, in particular, Hidalgo and Others , paragraph 24; Collino and Chiappero , paragraph 32). | 11. The purpose of the regulation, as the first recital in its preamble states, is to harmonize conditions of competition and to improve working conditions and road safety. | 0 |
6,516 | 37. It is also settled case-law that the proper conduct of that pre-litigation procedure constitutes an essential guarantee required by the EC Treaty not only in order to protect the rights of the Member State concerned but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter. It is only on the basis of a properly conducted pre-litigation procedure that the contentious procedure before the Court will enable the latter to judge whether the Member State has in fact failed to fulfil the specific obligations which the Commission alleges it has breached (see, inter alia, Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 35, and Case C-392/99 Commission v Portugal [2003] ECR I-3373, paragraph 133). | 16 Quant à la troisième question, qui porte sur le point de savoir si la mise en oeuvre de la directive peut résulter de la possibilité qu' ont les régions italiennes de déroger aux périodes de chasse fixées par la réglementation nationale et, sous certaines conditions, d' interdire ou de limiter la chasse, il y a lieu de souligner qu' une réglementation nationale qui déclare la chasse de certaines espèces ouverte en principe, sans préjudice de dispositions contraires dictées par les autorités régionales, ne répond pas aux exigences de protection posées par la directive . | 0 |
6,517 | 68 It should be noted as a preliminary observation that investment by the public authorities in the capital of an undertaking, in whatever form, may constitute State aid only where all the conditions set out in Article 87(1) EC are fulfilled (see, in particular, Case C-142/87 Belgium v Commission (Tubemeuse) [1990] ECR I-959, paragraph 25; Joined Cases C-278/92 to C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 20). | 20 The Court has consistently held that investment by the public authorities in the capital of undertakings, in whatever form, may constitute State aid where the conditions set out in Article 92 are fulfilled (Case C-305/89, cited above, paragraph 18). | 1 |
6,518 | 118
Accordingly, it is clear from the case-law of the Court that, even where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the General Court to assess the relevance of the application to the subject matter of the dispute and the need to examine the witnesses named (judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 70; order of 15 September 2005, Marlines v Commission, C‑112/04 P, not published, EU:C:2005:554, paragraph 38; and judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 78) | 37 It must further be observed that, where the Commission, instead of rejecting all the expenditure affected by the infringement, has endeavoured to establish the financial impact of the unlawful action by means of calculations based on an assessment of what the situation on the relevant market would have been if the infringement had not occurred, the burden of proving that those calculations are not correct rests on the Member State (Case 347/85, cited above, paragraph 15). | 0 |
6,519 | 51. The Court reiterated that position, with regard to public service contracts, in the judgments in BFI Holding (paragraphs 55 and 56) and Korhonen (paragraphs 57 and 58) and, with regard to public supply contracts, in the judgment in Adolf Truley (paragraph 56). That position also applies to Directive 2004/18, which represents a recasting of the provisions of all the preceding directives on the award of public contracts which it follows (see, to that effect, Bayerischer Rundfunk , paragraph 30). | 37
Second, it must be pointed out that the motor vehicles referred to in Article 1(1) of the First Directive are, irrespective of their characteristics, intended normally to serve as means of transport. | 0 |
6,520 | 132 It is to be observed, next, that the application of Article 52 of the Treaty in a given case depends, not on the question whether the Community has legislated in the area concerned by the business which is carried on, but on the question whether the situation under consideration is governed by Community law. Even if a matter falls within the power of the Member States, the fact remains that the latter must exercise that power consistently with Community law (see Case C-221/89 Factortame and Others [1991] ECR I-3905, paragraph 14; Case C-124/95 Centro-Com [1997] ECR I-81, paragraph 25; Case C-264/96 ICI v Colmer [1998] ECR I-4695, paragraph 19). | 23 In the light of the foregoing the objection of inadmissibility raised by the Commission must be rejected .
Substance | 0 |
6,521 | 56 Moreover, the Court implicitly acknowledged that the E 101 certificate may produce retroactive effects when it held that the option which Article 17 of Regulation No 1408/71 confers on Member States to agree, in the interest of a worker, to apply a legislation different from that designated by Articles 13 to 16 also applies in respect of periods that have already expired (Case 101/83 Raad van Arbeid v Brusse [1984] ECR 2223, paragraphs 20 and 21; Case C-454/93 Rijksdienst voor Arbeidsvoorziening v Van Gestel [1995] ECR I-1707, paragraph 29). Articles 11 and 11a of Regulation No 574/72 also provide that, in such a situation, an E 101 certificate is to be issued. | 21 As the Advocate General notes at point 27 of his Opinion, by compensating farmers who undertake to cease their milk production, the Community does not acquire goods or services for its own use but acts in the common interest of promoting the proper functioning of the Community milk market. | 0 |
6,522 | 25. As for the evidence which taxpayers are required to provide, there is no provision of the Sixth Directive which deals directly with the question. That directive merely provides, in the first part of the sentence in Article 28c(A), that it is for the Member States to determine the conditions in which they will exempt intra-Community supplies of goods. However, when they exercise their powers, Member States must comply with general principles of Community law, which include, in particular, the principles of legal certainty and proportionality (see, to that effect, Joined Cases C‑286/94, C‑340/95, C‑401/95 and C‑47/96 Molenheide and Others [1997] ECR I‑7281, paragraph 48; Case C‑384/04 Federation of Technological Industries and Others [2006] ECR I‑4191, paragraphs 29 and 30). | 41. À cet égard, si l’objectif de prévenir l’entrée et le séjour irréguliers constitue une raison impérieuse d’intérêt général, il importe également que la mesure en cause soit propre à garantir la réalisation de cet objectif et qu’elle n’aille pas au-delà de ce qui est nécessaire pour l’atteindre. | 0 |
6,523 | 71. As the Court held in paragraph 50 of Savas the two provisions at issue are of the same kind. | 29 IN THAT CONNECTION THE COMMISSION CANNOT RELY ON THE EXISTENCE IN THOSE DOCUMENTS OF INFORMATION COVERED BY BUSINESS CONFIDENTIALITY . IN SO FAR AS THE MEMBER STATE CONCERNED WAS NOT AFFORDED AN OPPORTUNITY TO COMMENT ON THAT INFORMATION , THE COMMISSION MAY NOT USE IT IN ITS DECISION WITH REGARD TO THAT STATE .
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6,524 | 18 It should be pointed out that, according to paragraph 17 of its judgment in Keck and Mithouard, if national provisions restricting or prohibiting certain selling arrangements are to avoid being caught by Article 30 of the Treaty, they must not be of such a kind as to prevent access to the market by products from another Member State or to impede access any more than they impede the access of domestic products. | 40. Moreover, it is apparent from the Court’s case-law that recourse to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (see, inter alia, Jipa , paragraph 23 and case-law cited, and Gaydarov , paragraph 33). | 0 |
6,525 | 44 It is settled case-law that those exemptions constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another (see, in particular, Case C-349/96 CPP [1999] ECR I-973, paragraph 15, and Case C-240/99 Skandia [2001] ECR I-1951, paragraph 23). | 77. En effet, la réglementation litigieuse considère, en principe, les héritiers ou les donataires tant résidents que non-résidents comme assujettis aux fins de la perception de droits de succession ou de mutation sur des biens immeubles situés en Espagne. Partant, il n’existe entre un résident et un non-résident aucune différence de situation objective de nature à fonder une différence de traitement (voir, en ce sens, arrêt Schumacker, EU:C:1995:31, point 37). | 0 |
6,526 | 32
As a preliminary point, it must be noted that the binding character of Framework Decision 2002/584 places on the judicial authority of the Member State issuing the European arrest warrant an obligation to interpret national law in conformity with EU law. That authority is therefore bound to interpret domestic law, so far as possible, in the light of the wording and the purpose of that framework decision in order to achieve the result sought by it (see, to that effect, judgment of 5 September 2012 in Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraphs 53 and 54 and the case-law cited). | 111 It follows that the removal of the exclusive right conferred on the Fund might make it impossible for it to perform the tasks of general economic interest entrusted to it under economically acceptable conditions and threaten its financial equilibrium. | 0 |
6,527 | 17 However, the Commission considers that according to the judgment in Emmott (paragraphs 21, 22 and 23), the time-limits for proceedings brought by individuals seeking to avail themselves of their rights are applicable only when a Member State has properly transposed the directive and that that principle applies in this case. | 31
In particular, contrary to the submissions of the respondents in the main proceedings and the United Kingdom Government, the expression ‘involuntary unemployment’ may, depending on the context in which it is used, refer to a situation of inactivity due to the involuntary loss of employment following, for example, a dismissal, as well as, more broadly, to a situation in which the occupational activity, whether on an employed or self-employed basis, has ceased due to an absence of work for reasons beyond the control of the person concerned, such as an economic recession. | 0 |
6,528 | 25 As regards the criterion of serious difficulties, the Court also held in the Barber judgment that if any male worker concerned could, like Mr Barber, retroactively assert the right to equal treatment in cases of discrimination which, until then, could have been considered permissible in view of the exceptions provided for in Directive 86/378, the financial balance of many occupational schemes might be upset retroactively (paragraph 44). | 55. Article 20(1) of that directive leaves the Member States free to take the measures necessary to establish a system of third-party access to transmission or distribution systems. It follows that, in accordance with Article 249 EC, the Member States have authority over the form and the methods to be used to implement such a system. Having regard to the importance of the principle of open access to transmission or distribution systems, that margin of discretion does not, however, authorise them to depart from that principle except in those cases where Directive 2003/54 lays down exceptions or derogations. | 0 |
6,529 | 62 As the German Government has emphasised the difficulty in distinguishing between supplies of goods and supplies of services, particularly where work is carried out on a motor vehicle, it should be observed that there is a consistent body of case-law to the effect that in order to determine whether a given transaction is a supply of goods or a supply of services, it is necessary to identify its characteristic features (Case C-231/94 Faaborg-Gelting Linien [1996] ECR I-2395, paragraph 12). Where a supply of goods is only one component of a transaction in which supplies of services predominate, the transaction must be regarded as a supply of services (Faaborg-Gelting Linien, paragraph 14). | 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 |
6,530 | 51. First, for reasons set out more fully in paragraphs 81 to 86 of Wählergruppe Gemeinsam , the fact that the meaning of ‘conditions of work’ as used in Article 48(2) of the EC Treaty (now, after amendment, Article 39(2) EC) has been clarified by Regulation No 1612/68, particularly the first paragraph of Article 8 thereof which refers specifically to trade-union and related rights, while such clarification is missing in relation to the bilateral agreements in question in no way means that the scope of the term used in those agreements is narrower than that of the term used in Article 39(2) EC and, hence, that it does not include the right of workers from the non-member States concerned to participate, on the same terms as domestic nationals, in elections to bodies that represent and defend employees’ interests. | 31. The increases referred to by the Court in paragraph 56 of that judgment are those laid down in point 4(a) of Chapter I of Annex A to Directive 85/73, that provision being the only one to use the terms ‘increase’ and ‘standard amounts’. The second part of paragraph 56, which concerns the option available to the Member States to charge a special fee exceeding the levels of the Community fees, does not refer to a standard-rated payment, but merely makes the use of that option subject to the single condition that that fee must cover the entire actual costs. | 0 |
6,531 | 8 In considering the scope of the derogation provided for by that provision, it is to be noted, first, that, in view of the fundamental importance of the principle of equal treatment, which the Court has reaffirmed on numerous occasions, the exception to the prohibition of discrimination on grounds of sex provided for in Article 7(1)(a) of Directive 79/7 must be interpreted strictly (see the judgments in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 36, and Case 262/84 Beets-Proper v Van Landschot Bankiers [1986] ECR 773, paragraph 38). | À cet égard, il convient de rappeler que, selon une jurisprudence constante de la Cour, 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 les changements intervenus par la suite ne sauraient être pris en compte par la Cour (arrêts du 4 septembre 2014, Commission/Grèce,
C‑351/13, non publié, EU:C:2014:2150, point 20, et du 5 février 2015, Commission/Belgique, C‑317/14, EU:C:2015:63, point 34). | 0 |
6,532 | 54 It is for the national court to establish the existence of those two elements, evidence of which must be adduced in accordance with the rules of national law, provided that the effectiveness of Community law is not thereby undermined (see, to that effect, in particular, Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633, paragraphs 17 to 25 and 35 to 39; Case 222/82 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraphs 17 to 21; and Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Ministry of Agriculture, Fisheries and Food [1996] ECR I-389, paragraphs 49 to 51, and Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others v Minister van Volkshuisvesting [2000] ECR I-4475, paragraph 41). | 76. As the Court held at paragraph 21 of the judgment in Régie dauphinoise, if all receipts from a taxable person’s financial transactions linked to a taxable activity were to be included in that denominator, even where the creation of such receipts did not entail the use of goods or services subject to VAT, or at least entailed only their very limited use, calculation of the deduction would be distorted. | 0 |
6,533 | 24 Having allowed an exception in the case of contracts of employment presenting certain special features (see, in particular, Case 133/81 Ivenel v Schwab [1982] ECR 1891), in paragraph 20 of its judgment in Shenavai, cited above, the Court confirmed that the obligation referred to in Article 5(1) is the contractual obligation which forms the actual basis of the legal proceedings. | 85. However, it is undisputed that requirements of public security must, in particular as a derogation from the fundamental principle of the free movement of capital, be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union. Thus, public security may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see, in particular, Case C‑54/99 Église de scientologie [2000] ECR I‑1335, paragraph 17, and Case C‑171/08 Commission v Portugal , paragraph 73). | 0 |
6,534 | 19 The obligation to state reasons laid down in Article 190 of the Treaty concerns only acts of the institutions. It is true that Community law imposes the obligation to state reasons for national decisions affecting the exercise of a fundamental right conferred on individuals by the Treaty (see, in particular, Case 222/86 UNECTEF v Heylens and Others [1987] ECR 4097, paragraphs 14 to 17). However, in view of its purpose, such an obligation concerns only individual decisions adversely affecting individuals against which the latter must have some remedy of a judicial nature, and not national measures of general scope. | 64. Accordingly, by giving the tax payer the choice between immediate recovery or recovery spread over a period of five years, the legislation at issue in the main action does not go beyond what is necessary to attain the objective of the preservation of the balanced allocation of the power to impose taxes between Member States. | 0 |
6,535 | 35. As regards more specifically a situation such as that at issue in the main proceedings, it should be recalled that the Court has already held that punishable acts consisting of exporting and importing the same illegal goods and which are prosecuted in different CISA Contracting States constitute conduct which may be covered by the notion of ‘same acts’ within the meaning of Article 54 of the CISA (see, to that effect, Van Esbroeck , paragraph 42, Van Straaten , paragraph 51, and Case C‑467/04 Gasparini and Others [2006] ECR I‑9199, paragraph 57). | 11. The Court has declined jurisdiction where it was obvious that the provision of European Union law referred to the Court for interpretation was incapable of applying (Case C‑567/07 Woningstichting Sint Servatius [2009] ECR I-9021, paragraph 43). | 0 |
6,536 | 77. The Court has none the less held, in essence, that particular circumstances may be capable, by virtue of the principle of sincere cooperation arising from Article 4(3) TEU, of requiring a national administrative body to review an administrative decision that has become final, in particular to take account of the interpretation of a relevant provision of European law which the Court has given subsequently (see Kempter , paragraph 38). It can be seen from the case-law that, in that context, the Court has taken account of the particular features of the situations and interests at issue in order to strike a balance between the requirement for legal certainty and the requirement for legality under EU law (see, to that effect, inter alia, Kühne & Heitz , paragraphs 25 and 26; i - 21 Germany and Arcor , paragraphs 53, 63 and 64; Kempter , paragraphs 46, 55 and 60; and Fallimento Olimpiclub , paragraphs 22, 26 and 31). | 41. Even if Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation (OJ 1977 L 336, p. 15) were not applicable in the main proceedings, that could not justify the method of calculating the value of holdings in companies or firms established in other Member States being designed in such a way as to be less favourable than the method of calculating the value of holdings in companies or firms established in the Member State concerned. The tax authorities could request the taxpayers concerned to provide themselves the evidence which the authorities consider necessary to carry out a calculation of the value of the holdings of those taxpayers in companies or firms established in other Member States (see, to that effect, Case C‑464/05 Geurts and Votgen [2007] ECR I‑9325, paragraph 28). | 0 |
6,537 | 28. The fact that the amount of the usage fees is not determined unilaterally by the provider of the rescue services, but by agreement with the social security institutions which themselves have the status of a contracting authority (see, to that effect, Case C-300/07 Hans & Christophorus Oymanns [2009] ECR I-4779, paragraphs 40 to 59), and that those fees are not paid directly by the users of those services to the selected provider but through a central settlement office which is in charge of collecting and remitting those fees, by regular payments on account, does not affect that finding. The fact remains that all the remuneration obtained by the provider of the services comes from persons other than the contracting authority which awarded it the contract. | La circonstance que, en vertu de l’annexe du règlement n° 2015/1862, le nom de la requérante ait été retiré de la liste des
entités visées par l’annexe IX du règlement n° 267/2012 depuis le 16 janvier 2016 n’est pas de nature à faire perdre à celle-ci
tout intérêt à obtenir l’annulation de son inscription et, partant, à priver le présent pourvoi de son objet. En effet, compte
tenu des conséquences sur sa réputation de l’inscription sur une telle liste, la requérante persiste à avoir un intérêt, à
tout le moins moral, à ce que le juge de l’Union reconnaisse qu’elle n’aurait jamais dû y être inscrite (voir, en ce sens,
arrêt du 28 mai 2013, arrêt Abdulrahim/Conseil et Commission, C‑239/12 P, EU:C:2013:331, points 70 à 72). Il en va de même
à propos de l’intérêt à agir de la requérante en ce qui concerne la décision 2013/661, le gel de ses avoirs en vertu de cette
décision n’étant d’ailleurs que « suspendu » par la décision 2015/1863. | 0 |
6,538 | 23. As regards the Commission’s first head of claim, ‘goods’ are defined as products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions (Case 7/68 Commission v Italy [1968] ECR 617, 626 and Case C-97/98 Jägerskiöld [1999] ECR I‑7319, paragraph 30). | 107
In those circumstances, it is contrary to the principle of international law of the relative effect of treaties to take the view that the territory of Western Sahara comes within the scope of the Association Agreement, which is applicable to relations between the European Union and the Kingdom of Morocco. | 0 |
6,539 | 33. It is not necessary, in that respect, to establish that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have such an effect (see, to that effect, judgments in O’Flynn , EU:C:1996:206, paragraph 21; Öztürk , EU:C:2004:232, paragraph 57; and Celozzi , EU:C:2007:35, paragraph 27). | À cet égard, il convient de relever que la décision de poursuite ou de renonciation à un recours en manquement relève de la compétence exclusive de la Commission (voir arrêt du 7 février 1979, France/Commission, 15/76 et 16/76, EU:C:1979:29, point 27) et qu’il n’appartient pas, dès lors, à la Cour de statuer sur une telle demande. | 0 |
6,540 | 63 According to the Court' s judgment in Suiker Unie (cited above, at paragraphs 26 and 173), a concerted practice refers to a form of coordination between undertakings which, without having been taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them. In the same judgment, the Court added that the criteria of coordination and cooperation must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the Common Market. | 17 Article 3 of the directive thus leaves the Member State a discretion in determining the date from which payment of claims must be ensured. However, as is already implicit in the Court' s case-law (see the judgments in Case 71/85 Netherlands v FNV [1986] ECR 3855 and Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453, paragraph 15), the right of a State to choose among several possible means of achieving the result required by a directive does not preclude the possibility for individuals of enforcing before the national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the directive alone. | 0 |
6,541 | 26 Even if the aims pursued by the Italian legislation may be regarded as aims of "public policy" within the meaning of those provisions, it follows a fortiori from what has been said above that the obligations at issue are not indispensable for achieving those aims and thus cannot be regarded as justified from the point of view of those provisions (see the judgment in Case C-3/88 Commission v Italy [1989] ECR 4035, paragraph 15). | 11. À cet égard, 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 (voir, notamment, arrêts du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9, et du 3 février 2011, Commission/Belgique, C‑391/10, point 8). | 0 |
6,542 | 41 Finally, it should be noted that in the absence of Community provisions, Member States are free to chose the modes of proof of the various matters defined in the directives which they transpose, provided that the effectiveness of Community law is not thereby undermined (see in particular, in that regard, Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633, paragraphs 17 to 25 and 35 to 39; Case 222/82 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraphs 17 to 21; and Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Ministry of Agriculture, Fisheries and Food [1996] ECR I-389, paragraphs 49 to 51). | 34. Given, first, that the difference in treatment provided for by the provision at issue in the main proceedings is directly on grounds of sex and, second, that Directive 76/207 contains no exception, applicable in the present case, to the principle of equal treatment, it must be concluded that that difference in treatment constitutes discrimination on grounds of sex. | 0 |
6,543 | 94. It should be noted in this connection that according to well-established case‑law, Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17; Kohll , paragraph 33; and Smits and Peerbooms , paragraph 61). | 5 THIS EXPLANATION IS SUPPORTED BY THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE RELATING TO HEADING 23.07, IN WHICH IT IS STATED THAT " THIS HEADING EXCLUDES : ... ( B ) SIMPLE MIXTURES OF CEREAL GRAINS ... ( C ) PREPARATIONS WHICH, WHEN ACCOUNT IS TAKEN, IN PARTICULAR, OF THE NATURE, PURITY AND PROPORTIONS OF THE COMPONENTS, THE HYGIENE REQUIREMENTS COMPLIED WITH DURING MANUFACTURE AND, WHERE APPROPRIATE, THE INDICATIONS GIVEN ON THE PACKAGING OR ANY OTHER INFORMATION CONCERNING THEIR USE, CAN BE USED INDIFFERENTLY FOR FEEDING ANIMALS OR AS HUMAN FOOD ".
THESE NOTES PERMIT TWO DISTINCT CRITERIA TO BE DEDUCED : FIRST, FROM THE PARTICULAR USE TO WHICH THE PRODUCT IS TO BE PUT AS FORAGE AND, SECONDLY, FROM THE IMPOSSIBILITY OF USING THE SAME PRODUCT FOR HUMAN CONSUMPTION . | 0 |
6,544 | 27 The test for establishing the existence of a transfer within the meaning of Directive 77/187 is whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (Case 24/85 Spijkers [1986] ECR 1119, paragraphs 11 and 12, and Case C-234/98 Allen and Others [1999] ECR I-8643, paragraph 23). | 12 CONSEQUENTLY , A TRANSFER OF AN UNDERTAKING , BUSINESS OR PART OF A BUSINESS DOES NOT OCCUR MERELY BECAUSE ITS ASSETS ARE DISPOSED OF . INSTEAD IT IS NECESSARY TO CONSIDER , IN A CASE SUCH AS THE PRESENT , WHETHER THE BUSINESS WAS DISPOSED OF AS A GOING CONCERN , AS WOULD BE INDICATED , INTER ALIA , BY THE FACT THAT ITS OPERATION WAS ACTUALLY CONTINUED OR RESUMED BY THE NEW EMPLOYER , WITH THE SAME OR SIMILAR ACTIVITIES .
| 1 |
6,545 | 31. The directive thus gives two definitions of medicinal products, one ‘by virtue of their presentation’ and one ‘by virtue of their function’. A product is a medicinal product if it falls within either of those definitions (Case C‑60/89 Monteil and Samanni [1991] ECR I-1547, paragraphs 10 and 11). It is also settled case-law that those two definitions are to be broadly construed (see, to that effect, Case 35/85 Tissier [1986] ECR 1207, paragraph 26; Monteil and Samanni , paragraph 23, and Case C‑112/89 Upjohn [1991] ECR I-1703, paragraph 16). | 21 ALTHOUGH THE LANDBOUWSCHAP CANNOT BE CONSIDERED TO BE DIRECTLY AND INDIVIDUALLY CONCERNED BY DECISION 85/215 AS A RECIPIENT OF THE CONTESTED AID, IT IS NONE THE LESS TRUE THAT, AS THE LANDBOUWSCHAP RIGHTLY ARGUES, ITS POSITION AS NEGOTIATOR OF GAS TARIFFS IN THE INTERESTS OF THE GROWERS IS AFFECTED BY DECISION 85/215 . | 0 |
6,546 | 39. It is apparent from the second and tenth recitals in the preamble to Directive 93/37 that that coordination seeks the simultaneous attainment of freedom of establishment and freedom to provide services in respect of public works contracts and the development, at the Community level, of effective competition in that field, by promoting the widest possible expression of interest among contractors in the Member States (see, to that effect, Case C‑225/98 Commission v France [2000] ECR I‑7445, paragraph 34; Case C‑399/98 Ordine degli Architetti and Others [2001] ECR I‑5409, paragraph 52; Joined Cases C‑285/99 and C‑286/99 Lombardini and Mantovani [2001] ECR I-9233, paragraph 34; and Case C‑470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 89). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
6,547 | 64. In that respect, it must be noted that, in the framework of Article 39 EC, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is entitled to freedom of movement as a worker (see, to that effect, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17, and Case C-138/02 Collins [2004] ECR I-2703, paragraph 26). | 119. In that regard, the Court has held, furthermore, that it follows from that provision that, under the system introduced by Regulation No 2081/92, where Member States have the power to adopt decisions, even of a provisional nature, which derogate from the provisions of the regulation, that power is derived from express rules ( Chiciak and Fol , paragraph 32). | 0 |
6,548 | 46. Moreover, it is settled case-law that the exemptions in Article 13 of the Sixth Directive constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another (see, in particular, Case C-349/96 CPP [1999] ECR I-973, paragraph 15, and Commission v Germany , paragraph 44). | 51
It is thus clear from the Guidelines that, in order to be in conformity with the requirements of Article 4(1) of Directive 92/85, the risk assessment of the work of a breastfeeding worker must include a specific assessment taking into account the individual situation of the worker in question in order to ascertain whether her health or safety or that of her child is exposed to a risk. | 0 |
6,549 | 70 As the Court held in Telemarsicabruzzo and in Banchero, cited above (paragraphs 7 and 5 respectively), those requirements are of particular importance in certain areas, such as that of competition, which are characterised by complex factual and legal situations. | 55. However, as the Advocate General observed in point 67 of her Opinion, Article 6(1), first subparagraph, of Directive 2008/98 merely sets out the conditions to be met by the specific criteria which make it possible to determine which waste ceases to be waste, within the meaning of Article 3(1) of that directive, when it has undergone a recovery, including recycling, operation. Therefore, such conditions cannot, in themselves, make it possible directly to establish that certain waste must no longer be regarded as such. Furthermore, it is common ground that such specific criteria have not been laid down by European Union law as regards wood treated in circumstances such as those in the case in the main proceedings. | 0 |
6,550 | 25
It follows from those provisions that the aim pursued by Regulation No 561/2006 is not harmonisation of the penalties, since, on the contrary, that regulation leaves the Member States free to choose the measures to adopt and the penalties necessary to their application (see, to that effect, judgment of 9 February 2012, Urbán, C‑210/10, EU:C:2012:64, paragraph 22). | 41. Thus, Article 13 of Directive 2006/126, headed ‘Equivalences between non-Community model licences’, is designed solely to govern the question of equivalences between rights acquired before the implementation of that directive and the various categories of driving licence defined by the latter. | 0 |
6,551 | 39. Nor can it be maintained that the marketing of medicinal products from other Member States is no more affected than the marketing of medicinal products from regions of Germany which are remote from the hospital to be supplied. For a national measure to be characterised as discriminatory or protective within the meaning of the rules on the free movement of goods, it is not necessary for it to have the effect of favouring national products as a whole or of placing only imported products at a disadvantage and not national products (Joined Cases C‑1/90 and C‑176/90 Aragonesa de Publicidad Exterior and Publivía [1991] ECR I‑4151, paragraph 24, and TK-Heimdienst , paragraph 27). | 29. Accordingly, where there is no likelihood of confusion, Article 5(1)(b) of the Directive could not be relied on by the proprietor of a mark with a reputation to protect himself against impairment of the distinctive character or repute of the mark. | 0 |
6,552 | 23 When addressing that question, it must be borne in mind that in proceedings brought under Article 234 EC the Court does not have jurisdiction to rule on the compatibility of a national measure with Community law. However, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it (see especially Joined Cases C-37/96 and C-38/96 Sodiprem and Others [1998] ECR I-2039, paragraph 22). | 22 When addressing that question, it must be borne in mind that, within the framework of proceedings brought under Article 177 of the Treaty, the Court does not have jurisdiction to give a ruling on the compatibility of a national measure with Community law. However, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it (see, inter alia, Case C-134/95 USSL No 47 di Biella v INAIL [1997] ECR I-195, paragraph 17). | 1 |
6,553 | 24. For such a justification to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, inter alia, Case C‑347/04 Rewe Zentralfinanz [2007] ECR I‑2647, paragraph 62 and the case-law cited). | 50. It is in that context that it must be determined whether and to what extent Articles 30(2) and 31 of Directive 2004/38, the provisions of which must be interpreted in a manner which complies with the requirements flowing from Article 47 of the Charter, permit the grounds of a decision taken under Article 27 of the directive not to be disclosed precisely and in full. | 0 |
6,554 | 48. It is clear that the Rules of Procedure are rules of internal organisation and cannot grant powers to the Parliament which are not expressly acknowledged by a legislative measure, in this case by the 1976 Act (see Joined Cases C‑200/07 and C‑201/07 Marra [2008] ECR I‑0000, paragraph 38). It follows a fortiori that the alleged institutional practice cannot derogate from Article 6 of that act. | 35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71. | 0 |
6,555 | 18
The reasoned opinion and the action brought under Article 258 TFEU must therefore set out the complaints coherently and precisely, in order for the Member State and the Court to be able to appreciate exactly the scope of the breach of EU law complained of, a condition which is necessary to enable the Member State to put forward its defence and the Court to determine whether there is a breach of obligations as alleged (judgments of 14 October 2010, Commission v Austria, C‑535/07, EU:C:2010:602, paragraph 42, and of 3 March 2011, Commission v Ireland, C‑50/09, EU:C:2011:109, paragraph 64 and the case-law cited). | 78. De plus, lorsqu’une réglementation nationale met sur le même plan, aux fins de l’imposition des successions ou des donations, les résidents et les non-résidents ou les biens situés sur le territoire national et ceux situés hors dudit territoire, elle ne peut, sans créer de discrimination, les traiter différemment, dans le cadre de cette même imposition, en ce qui concerne les abattements fiscaux (voir, en ce sens, arrêt Arens‑Sikken, EU:C:2008:490, point 57). | 0 |
6,556 | 40
The Court has added, however, that Article 23(1)(c) makes it possible to presume that such consent exists where commercial usages of which the parties are or ought to have been aware exist in this regard in the relevant branch of international trade or commerce (see, to that effect, judgments of 20 February 1997 in MSG, C‑106/95, EU:C:1997:70, paragraph 19, and of 16 March 1999 in Castelletti, C‑159/97, EU:C:1999:142, paragraphs 20 and 21). | 50. En effet, il ressort de la jurisprudence de la Cour que l’existence d’un intérêt à agir suppose qu’une demande telle que celle faite par la Commission soit susceptible, par son résultat, de procurer un bénéfice à la partie qui l’a intentée (voir, en ce sens, arrêt du 6 octobre 2009, GlaxoSmithKline Services e.a./Commission e.a., C‑501/06 P, C‑513/06 P, C‑515/06 P et C‑519/06 P, Rec. p. I‑9291, point 23 ainsi que jurisprudence citée). | 0 |
6,557 | 22 The Court has consistently held that it is for the national court to decide whether the person liable could have detected the error made by the competent authorities, having regard to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised (see, among others, the judgments in Case C-187/91 Société Coopérative Belovo [1992] ECR I-4963, paragraph 17, Case C-371/90 Beirafrio [1992] ECR I-2728, paragraph 21, and Case C-64/89 Deutsche Fernsprecher [1990] ECR I-2535, paragraph 24). | 23. Moreover, the interpretation of the terms used in that provision must be consistent with the objectives pursued by those exemptions and must comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT (see, by analogy, United Utilities , paragraph 22). | 0 |
6,558 | 44. According to settled case-law, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see, in particular, Case 8/81 Becker [1982] ECR 53, paragraph 25; Joined Cases C‑246/94 to C‑249/94 Cooperativa Agricola Zootecnica S. Antonio and Others [1996] ECR I‑4373, paragraph 17; and Case C‑226/07 Flughafen Köln/Bonn [2008] ECR I‑5999, paragraph 23 and the case-law cited). | 67. Having regard to this duty to ensure accordance with Article 118 TFEU, the enhanced cooperation in question must establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights. | 0 |
6,559 | 29. Furthermore, the Court has already held that where a Member State has a system for preventing or mitigating a series of charges to tax or economic double taxation for dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way (see, to that effect, Case C-315/02 Lenz [2004] ECR I-7063, paragraphs 27 to 49; Manninen , paragraphs 29 to 55, and Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 55). | 40. Consequently, it cannot be maintained that those scientific documents were not taken into account during the legislative procedure. | 0 |
6,560 | 43. Second, the Court has already held that a law such as the BerlBesÜG appears suited to achieving the aim pursued, that is to say, to ensure the preservation of acquired rights (judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraphs 65 to 68). It went on to state that the national legislature did not go beyond what was necessary to achieve the aim pursued by adopting the transitional derogation measures put in place by the BerlBesÜG (judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraphs 69 to 85). | 78 It follows from the foregoing that the Republic of Austria may avail itself of the two-month time-limit even though it failed to answer the Commission's questions promptly.
The Commission's right of objection | 0 |
6,561 | 40
That conclusion is borne out by recital 18 of Directive 2000/31 which states that, although information society services are not solely restricted to services giving rise to online contracting but extend to other services, those services must represent an economic activity. | 67. First of all, whilst in Schindler , Läärä and Zenatti the Court accepted that restrictions on gaming activities may be justified by imperative requirements in the general interest, such as consumer protection and the prevention of both fraud and incitement to squander on gaming, restrictions based on such grounds and on the need to preserve public order must also be suitable for achieving those objectives, inasmuch as they must serve to limit betting activities in a consistent and systematic manner. | 0 |
6,562 | 32. It must be recalled at the outset that Article 49 EC requires the abolition of all restrictions on the freedom to provide services, even if those restrictions apply without distinction to national providers of services and to those from other Member States, when they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where it lawfully provides similar services. Moreover, the freedom to provide services covers both providers and recipients of services (Case C-42/07 Liga Portu§guesa de Futebol Profissional and Bwin International [2009] ECR I-0000, paragraph 51 and the case-law cited). | 325. Moreover, those Guidelines do not require the Sanctions Committee to communicate to the applicant the reasons and evidence justifying his appearance in the summary list or to give him access, even restricted, to that information. Last, if that Committee rejects the request for removal from the list, it is under no obligation to give reasons. | 0 |
6,563 | 32. Thus, where the Commission relies on detailed complaints revealing repeated failures to comply with the provisions of the directive, it is incumbent on the Member State concerned to contest specifically the facts alleged in those complaints. Likewise, where the Commission has adduced sufficient evidence to show that a Member State’s authorities have developed a repeated and persistent practice which is contrary to the provisions of a directive, it is incumbent on that Member State to challenge in substance and in detail the information produced and the consequences flowing therefrom ( Commission v Ireland , paragraphs 46 and 47 and the case-law cited). That obligation rests on the Member States under the duty of genuine cooperation, enshrined in Article 10 EC, throughout the procedure provided for by Article 226 EC. It is apparent from the case-file that the Italian authorities did not fully cooperate with the Commission for the purposes of the investigation of the present case at the stage of the pre-litigation procedure.
Infringement of Articles 4, 8 and 9 of Directive 75/442, Article 2(1) of Directive 91/689 and Article 14(a) to (c) of Directive 1999/31
– Arguments of the parties | 44. That finding cannot be affected by the fact that workers in a situation such as that at issue in the main proceedings begin and finish such journeys at their homes, as that fact stems directly from the decision of their employer to abolish regional offices and not from the desire of those workers. Having lost the ability to freely determine the distance between their homes and the usual place of the start and finish of their working day, they cannot be required to bear the burden of their employer’s choice to close those offices. | 0 |
6,564 | 35. In those circumstances, as rightly observed by the referring court, taxation such as the registration tax at issue in the main proceedings must be regarded as being internal taxation within the meaning of Article 110 TFEU and does not per se constitute a charge having equivalent effect to a customs duty within the meaning of Article 30 TFEU. The mere fact that such a tax must be paid before the vehicle can be registered in the Member State concerned is of no import in that regard (see, by analogy, judgment in Brzeziński , C‑313/05, EU:C:2007:33, paragraphs 23 and 24). | 37. However, it is apparent from the case‑law that, while the criteria for the assessment of distinctive character are the same for different categories of marks, it may be that, for the purposes of applying those criteria, the relevant public’s perception is not necessarily the same in relation to each of those categories and it could therefore prove more difficult to establish distinctiveness in relation to marks of certain categories as compared with marks of other categories (see Proctor & Gamble v OHIM , paragraph 36; OHIM v Erpo Möbelwerk , paragraph 34; and Henkel v OHIM , paragraphs 36 and 38). | 0 |
6,565 | 71 In determining the probative value of those different factors, it must be noted that parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct. It is necessary to bear in mind that, although Article 85 of the Treaty prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors (see the judgment in Suiker Unie, cited above, paragraph 174). | 34 Next, it must be observed that, even if in 46 areas limit values were exceeded only once in only one season, the 1995 season, as mentioned in paragraph 29 of this judgment, that too constitutes an infringement of the Directive. | 0 |
6,566 | 67
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 (judgment 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). | 49. It is true that the WHO Convention seeks to reduce consumption of tobacco products by providing, inter alia, for a comprehensive ban on advertising, promotion and sponsorship in respect of tobacco products. However, the Convention entered into force after the Directive and not all the Member States have ratified it. | 0 |
6,567 | 60. It should be noted in this connection that, even if — in order to ensure full compliance with the Court’s judgment — the penalty payment should be payable in its entirety until such time as the Member State has taken all the measures necessary to bring to an end the failure to fulfil obligations established, nevertheless, in certain specific cases, a penalty which takes account of the progress that the Member State may have made in complying with its obligations may be envisaged (see, to that effect, judgments in Commission v Spain , EU:C:2003:635, paragraphs 43 to 51; in Commission v Italy , EU:C:2011:740, paragraphs 47 to 55; and in Commission v Belgium , EU:C:2013:659, paragraphs 73 and 74). | 66. C’est en effet à l’autorité compétente de l’Union qu’il appartient, en cas de contestation, d’établir le bien-fondé des motifs retenus à l’encontre de la personne concernée, et non à cette dernière d’apporter la preuve négative de l’absence de bien-fondé desdits motifs (voir arrêt Kadi II, point 121). | 0 |
6,568 | 22. However, with regard to the freedom to provide services, in accordance with Article 51(1) EC, Article 49 EC does not apply as such to the air transport sector (see, to that effect, Case C-49/89 Corsica Ferries France [1989] ECR 4441, paragraph 10 and the case-law cited, and Case C‑467/98 Commission v Denmark (‘Open Skies’) [2002] ECR I‑9519, paragraph 123). | 83 Suffice it to observe that the Community can incur non-contractual liability only if, inter alia, the acts alleged against the institution in question were unlawful (see, inter alia, Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 19). | 0 |
6,569 | 27. Au sens de ces articles, la qualité d’assujetti non établi présuppose que l’assujetti ne dispose, au cours de la période de référence, d’aucun des éléments de rattachement identifiés aux articles 1 er desdites directives (voir, en ce sens, arrêt Planzer Luxembourg, précité, point 52). | 22. It follows that the second part of the single plea relied on by FENIN must be dismissed as inadmissible.
The merits
– Arguments of the parties | 0 |
6,570 | 20
As a preliminary point, it must be recalled that, according to Article 96 of the VAT Directive, the same rate of VAT, that is the standard rate fixed by each Member State, is applicable to supplies of goods and services (judgment of 4 June 2015, Commission v United Kingdom, C‑161/14, not published, EU:C:2015:355, paragraph 22 and the case-law cited). | 37 A worker who exercises a statutory right to take parenting leave, which carries with it a parenting allowance paid by the State, is in a special situation, which cannot be assimilated to that of a man or woman at work since such leave involves suspension of the contract of employment and, therefore, of the respective obligations of the employer and the worker. | 0 |
6,571 | 10 The Rotterdam Kantongerecht decided to stay the proceedings and refer to the Court of Justice for a preliminary ruling the same questions as those which had been put by the Utrecht Kantongerecht in Case C-128/93 Fisscher v Voorhuis Hengelo and Stichting Bedrijfspensioenfonds voor de Detailhandel [1994] ECR I-4583, with certain additions. The full text of the questions referred is as follows:
"(1) Does the right to equal pay laid down in Article 119 of the EEC Treaty include the right to join an occupational pension scheme such as that at issue in this case which is made compulsory by the authorities?
(1a) Is the answer to the first question the same:
(a) if the adoption of the Netherlands Occupational Pensions Law was based not only on considerations of social policy (when a pension scheme is set up for a particular sector the costs are borne jointly by all undertakings in that sector) but also by the desire to prevent unfair competition in that sector?
(b) if an automatic obligation to provide cover was provided for in the original draft Law but not in the Law as finally adopted (Tweede Kamer 1948-1949 785, No 6)?
(c) if Thuiszorg lodged no objection to the order making the cover compulsory, or did so but the Minister did not take it up?
(d) whether or not Thuiszorg made an investigation among its employees which might have justified seeking an exemption or the employees were informed of the possibility of having an exemption?
(2) If the answer to Question 1 is in the affirmative, does the temporal limitation imposed by the Court in Barber for pension schemes such as those considered in that case (' contracted-out schemes' ) apply to the right to join an occupational pension scheme such as that at issue in this case, from which the plaintiff was excluded?
(2a) If the answer to Question 1 is in the affirmative, does the temporal limitation imposed by the Court in Barber for pension schemes such as those considered in that case (' contracted-out schemes' ) apply to the payment of a retirement pension?
(3) Where membership of a pension scheme applied in an undertaking is made compulsory by law, are the administrators of the scheme (the occupational pension fund) bound to apply the principle of equal treatment laid down in Article 119 of the EEC Treaty, and may an employee who has been prejudiced by failure to apply that rule sue the pension fund directly as if it were the employer?
In considering this question it may be relevant that the Cantonal Court has no jurisdiction to hear a claim based on unlawful conduct, since the extent of the claim exceeds the limits of its jurisdiction. In this case, therefore, it is relevant to know whether the plaintiff may claim against the pension fund on the basis of her contract of employment.
(4) If under Article 119 of the EEC Treaty the plaintiff is entitled to be a member of the occupational pension scheme from a date prior to 1 January 1991, does that mean that she is not bound to pay the premiums which she would have had to pay had she been admitted earlier to the pension scheme?
(5) Is it relevant that the plaintiff did not act earlier to enforce the rights which she now claims to have?
(6) Do the Protocol concerning Article 119 of the EEC Treaty appended to the Treaty of Maastricht (' the Barber Protocol' ) and the (draft law amending the) transitional Article III of Draft Law 20890, which is intended to implement the Fourth directive, affect the assessment of this case which was brought before the Cantonal Court by writ of summons issued on 2 December 1992?"
First question | 26. As regards the second condition, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion. Where that institution has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (see, inter alia , Bergaderm and Goupil , paragraphs 43 and 44, and Commission v Camar and Tico , paragraph 54). | 0 |
6,572 | 47 As to that, although the imposition of price controls is indeed a factor which may, in certain conditions, distort competition between Member States, that circumstance cannot justify a derogation from the principle of free movement of goods. It is well settled that distortions caused by different price legislation in a Member State must be remedied by measures taken by the Community authorities and not by the adoption by another Member State of measures incompatible with the rules on free movement of goods (see Case 16/74 Winthrop [1974] ECR 1183, paragraph 17; Joined Cases 55/80 and 57/80 Musik-Vertrieb Membran and K-tel International v GEMA [1981] ECR 147, paragraph 24; and Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others [1996] ECR I-3457, paragraph 46). | Quant au bien-fondé de cette quatrième branche, il importe de relever que, après avoir rappelé en substance, au point 102
de l’arrêt attaqué, qu’un acte peut se voir reconnaître, à titre exceptionnel, un effet rétroactif, lorsque le but à atteindre
l’exige et que la confiance légitime des intéressés est dûment respectée (voir, en ce sens, arrêts Amylum/Conseil, 108/81,
EU:C:1982:322, point 4, ainsi que Fedesa e.a., C‑331/88, EU:C:1990:391, point 45), le Tribunal a examiné, aux points 104 à
109 de l’arrêt attaqué, si ces deux critères étaient réunis en ce qui concerne la décision litigieuse. Plus particulièrement,
il a rappelé, au point 105 de cet arrêt, en conformité avec la jurisprudence de la Cour (voir, en ce sens, arrêt Amylum/Conseil,
108/81, EU:C:1982:322, point 8), que le critère relatif au but à atteindre impliquait, dans le cas d’espèce, la nécessité
d’examiner si ladite décision visait à satisfaire à au moins un but d’intérêt général. À cet égard, le point 106 dudit arrêt
est rédigé ainsi: | 0 |
6,573 | 41. Concerning those two forms of investment, the Court has stated that national measures must be regarded as ‘impediments’ for the purposes of Article 63(1) TFEU if they are liable to prevent or limit the acquisition of shares in the undertakings concerned or to deter investors of other Member States from investing in their capital (see Case C‑367/98 Commission v Portugal [2002] ECR I‑4731, paragraphs 45 and 46; Case C‑483/99 Commission v France [2002] ECR I‑4781, paragraph 40; Case C‑463/00 Commission v Spain [2003] ECR I‑4581, paragraphs 61 and 62; Case C‑98/01 Commission v United Kingdom [2003] ECR I‑4641, paragraphs 47 and 49; Case C‑174/04 Commission v Italy [2005] ECR I‑4933, paragraphs 30 and 31; and Commission v Netherlands , paragraph 20). | 31. Those arguments cannot, however, be accepted. | 0 |
6,574 | 17. In that regard, since the Community provision being interpreted lacks a definition to that effect, a trade mark certainly cannot be required to be well known ‘throughout’ the territory of the Member State and it is sufficient for it to be well known in a substantial part of it (see, by analogy, Case C-375/97 General Motors [1999] ECR I‑5421, paragraph 28, concerning the kindred concept of the ‘reputation’ of a trade mark for which Article 5(2) of the Directive refers also to an assessment ‘in the Member State’). | 58. Il résulte d’une jurisprudence bien établie que les États membres ont l’obligation de constater les ressources propres des Communautés. En effet, l’article 2, paragraphe 1, des règlements n os 1552/89 et 1150/2000 doit être interprété en ce sens que les États membres ne peuvent pas se dispenser de constater les créances, même s’ils les contestent, sous peine d’admettre que l’équilibre financier des Communautés soit bouleversé, ne fût-ce qu’à titre temporaire, par le comportement d’un État membre (voir, notamment, arrêts du 16 mai 1991, Commission/Pays-Bas, C‑96/89, Rec. p. I‑2461, point 37, ainsi que du 17 juin 2010, Commission/Italie, C‑423/08, non encore publié au Recueil, point 39 et jurisprudence citée). | 0 |
6,575 | 62. As the Court held in paragraph 59 of Commission v Denmark , it is apparent from Articles 217, 218 and 221 of the Customs Code that those conditions are met when the customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount of duties arising from a customs debt and to determine the debtor (see, to that effect, Case C-460/01 Commission v Netherlands , paragraph 71, and Case C‑104/02 Commission v Germany [2005] ECR I-2689, paragraph 80). Member States may not dispense with determining claims, even where these are disputed; otherwise, it would have to be accepted that the financial equilibrium of the Communities may be disrupted by the conduct of a Member State ( Commission v Denmark , paragraph 60). | 36. L’article 10 bis, premier alinéa, de la directive 85/337, en prévoyant que les décisions, les actes ou les omissions visés audit article doivent pouvoir faire l’objet d’un recours juridictionnel pour en contester la légalité, quant au fond ou à la procédure, n’a aucunement limité les moyens qui peuvent être invoqués à l’appui d’un tel recours (arrêt du 12 mai 2011, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein‑Westfalen, C‑115/09, Rec. p. I‑3673, point 37). | 0 |
6,576 | 29
However, even national legislation which applies without distinction to all services, irrespective of the place of establishment of the provider, is liable to constitute a restriction on the freedom to provide services in so far as it reserves an advantage solely to users of services which comply with certain conditions which are de facto specific to the national market and thus deny that advantage to users of other services which are essentially similar but do not comply with the specific conditions provided for in that legislation. Such legislation affects the situation of users of services as such and is thus liable to discourage them from using the services of certain providers, since the services offered by them do not comply with the conditions laid down in that legislation, thus directly affecting access to the market (see, to that effect, judgments of 10 May 1995, Alpine Investments, C‑384/93, EU:C:1995:126, paragraphs 26 to 28 and 35 to 38, and of 10 November 2011, Commission v Portugal, C‑212/09, EU:C:2011:717, paragraph 65 and the case-law cited). | 86. Once that verification is complete, the competent authorities must, as a second step, conduct an assessment of the specific facts known to it, so as to determine whether support for the organisation concerned in the form of assisting in the collection of funds and regular participation in the events organised by that organisation, which would seem to have been Mr. T.’s situation in the main proceedings, falls within the scope of Article 24(1) of Directive 2004/83. | 0 |
6,577 | 31. An appellant alleging distortion of its own arguments must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and indent (c) of the first subparagraph of Article 112(1) of its Rules of Procedure, indicate precisely the arguments alleged to have been distorted by the General Court (see, by analogy, Aalborg Portland and Others v Commission , paragraph 50). However, the appellant has not indicated precisely those of its arguments which it alleges were distorted in the judgment under appeal. | 30. La Cour a toutefois précisé que, pour que des impôts, droits, prélèvements et taxes puissent relever de l’assiette de la TVA alors même qu’ils ne représentent pas de valeur ajoutée et qu’ils ne constituent pas la contrepartie économique de la livraison du bien, ils doivent présenter un lien direct avec cette livraison (arrêt De Danske Bilimportører, précité, point 17 et jurisprudence citée). | 0 |
6,578 | 22 As regards the criterion of serious difficulties, the Court also held in the Barber judgment that if any male worker concerned could, like Mr Barber, retroactively assert the right to equal treatment in cases of discrimination which, until then, could have been considered permissible in view of the exceptions provided for in Directive 86/378, the financial balance of many occupational schemes might be upset retroactively (paragraph 44). | 60
The Court has also held that, provided that the conditions for recourse to Article 114 TFEU as a legal basis are fulfilled, the EU legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made (judgments in British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 62; Arnold André, C‑434/02, EU:C:2004:800, paragraph 32; Swedish Match, C‑210/03, EU:C:2004:802, paragraph 31; and Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 39). | 0 |
6,579 | 14 Il convient, en pareille hypothèse, pour déterminer la base juridique appropriée, d'apprécier si les mesures considérées se rattachent principalement à un domaine d'action, les effets sur d'autres politiques ne présentant qu'un caractère accessoire, ou si les deux aspects sont également essentiels. Dans le premier cas, le recours à une seule base juridique suffit (arrêts du 4 octobre 1991, Parlement/Conseil, 70/88, Rec. p. I-4529, point 17, et du 26 mars 1996, Parlement/Conseil, C-271/94, Rec. p. I-1689, points 32 et 33); dans l'autre, il est insuffisant (arrêts du 30 mai 1989, Commission/Conseil, 242/87, Rec. p. 1425, points 33 à 37, et du 7 mars 1996, Parlement/Conseil, C-360/93, Rec. p. I-1195, point 30) et l'institution est tenue d'adopter l'acte sur le fondement des deux dispositions qui fondent sa compétence (arrêt du 27 septembre 1988, Commission/Conseil, 165/87, Rec. p. 5545, points 6 à 13). Un tel cumul est toutefois exclu lorsque les procédures prévues pour l'une et l'autre base juridique sont incompatibles (arrêt du 11 juin 1991, Commission/Conseil, C-300/89, Rec. p. I-2867, points 17 à 21). | 24 It is settled case-law that the Commission may refuse to charge to the EAGGF all expenditure incurred if it finds that there are no adequate control procedures (see judgment of 18 May 2000 in Case C-242/97 Belgium v Commission [2000] ECR I-3421, paragraph 122). | 0 |
6,580 | 17. On this point, the Court has also stated on numerous occasions that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Hoeckx , paragraphs 12 to 14; Commission v Luxembourg , paragraph 29, and Celozzi , paragraph 17). | 17. The Court has also stated on numerous occasions that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Hoeckx , paragraphs 12 to 14; Commission v Luxembourg , paragraph 29; Acciardi , paragraph 14; and Meints , paragraph 24). | 1 |
6,581 | 40 In this connection, it must be noted that the likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case (SABEL, paragraph 22). A global assessment implies some interdependence between the relevant factors (Canon, paragraph 17). For example, a likelihood of confusion may be found, despite a lesser degree of similarity between the goods or services covered, where the marks are very similar and the earlier mark, in particular its reputation, is highly distinctive (Canon, paragraph 19). | 73. D’autre part, le pouvoir accordé au Conseil par l’article 108, paragraphe 2, troisième alinéa, TFUE ne trouve à s’appliquer que dans les limites indiquées par cette disposition, à savoir en présence de circonstances exceptionnelles (voir, en ce sens, arrêt du 29 février 1996, Commission/Conseil, C‑122/94, Rec. p. I‑881, point 13). | 0 |
6,582 | 115. It is also clear from settled case-law that the scope of the obligation to state reasons depends on the nature of the measure in question and that, in the case of measures of general application, the statement of reasons may be confined to indicating the general situation which led to the adoption of the measure and the general objectives which it is intended to achieve. In that context, the Court has repeatedly ruled that if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (see, to this effect, Case C-221/09 AJD Tuna [2011] ECR I-0000, paragraph 59 and the case-law cited). | 613 By way of that negative formulation, it merely gave expression to the conclusion which it had reached in the exercise of its unfettered discretion following its assessment of the gravity and duration of the matters established and having regard to Montedison's arguments disputing those facts or casting a different light on them, which it had previously rejected. | 0 |
6,583 | 34. With regard to this second ground for refusal, the Court stated initially in the context of the Brussels Convention that, since recourse to the public policy clause contained in Article 27(1) of that Convention constitutes an obstacle to the achievement of one of the fundamental aims of the Convention, namely to facilitate the free movement of judgments, such recourse is reserved for exceptional cases (Case C-7/98 Krombach [2000] ECR I‑1935, paragraphs 19 and 21, and Eurofood IFSC , paragraph 62). The case-law relating to Article 27(1) of the Convention is transposable to the interpretation of Article 26 of the Regulation ( Eurofood IFSC , paragraph 64). | 33 Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (Masgio, cited above, paragraphs 18 and 19, and Terhoeve, cited above, paragraph 39). | 0 |
6,584 | 86. In accordance with the Court’s case-law, it is for the Member States, in the absence of harmonisation and to the extent that uncertainties continue to exist in the current state of scientific research, to decide on the level of protection of human health and life they wish to ensure and on whether to require prior authorisation for the marketing of foodstuffs, always taking into account the requirements of the free movement of goods within the Community (see Commission v Denmark , paragraph 42; Commission v France , paragraph 49; and Commission v Germany , paragraph 86). | 69. In those circumstances, the first part of the second ground of appeal, alleging that the labels produced by the opposing party cannot in themselves prove use of the earlier trade mark during the relevant period nor support the other evidence, is not such as to justify setting aside the judgment under appeal and must therefore be rejected as ineffective. | 0 |
6,585 | 36 It should be added that, by virtue of the combined provisions of Articles 38 to 46 and Article 7(7) of the EC Treaty, the foregoing considerations apply also to Council regulations on the common organization of the markets for the various agricultural products (see Joined Cases 3/76, 4/76 and 6/76 Kramer and Others [1976] ECR 1279, paragraphs 53 and 54, and Case C-228/91 Commission v Italy [1993] ECR I-2701, paragraph 11, relating to regulations on the common organization of the markets in fishery products). | 11 IT FOLLOWS THAT THE ANSWER TO BE GIVEN TO THE NATIONAL COURT' S FIRST QUESTION IS THAT A FOREIGN JUDGMENT WHICH HAS BEEN RECOGNIZED BY VIRTUE OF ARTICLE 26 OF THE CONVENTION MUST IN PRINCIPLE HAVE THE SAME EFFECTS IN THE STATE IN WHICH ENFORCEMENT IS SOUGHT AS IT DOES IN THE STATE IN WHICH JUDGMENT WAS GIVEN . | 0 |
6,586 | 62
Furthermore, since Article 206(1) of the Customs Code is a derogation from the rule laid down in Article 204(1)(a) thereof, the concepts of ‘force majeure’ and ‘unforeseeable circumstances’, within the meaning of the first of those provisions, must be interpreted strictly (see, by analogy, the judgments of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraph 24; of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 190 and 191; and of 25 January 2017, Vilkas, C‑640/15, EU:C:2017:39, paragraph 56). | 70. Finally, even assuming that that criterion was a response to the need to ensure reliability of supplies ─ an assumption which it is for the national court to verify ─ it should be noted that while the reliability of supplies can, in principle, number amongst the award criteria used to determine the most economically advantageous tender, the capacity of tenderers to provide the largest amount of electricity possible in excess of the amount laid down in the invitation to tender cannot legitimately be given the status of an award criterion. | 0 |
6,587 | 32. First of all, it should be recalled that, as the Court has already held, the concept of aid is wider than that of a subsidy because it embraces not only positive benefits, such as the subsidies themselves, but also measures which, in various forms, mitigate the normal burdens on the budget of an undertaking and which therefore, without being subsidies in the strict meaning of the word, are similar in character and have the same effect (see, inter alia , Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 39; Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, paragraph 13; Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 34; and Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] ECR I-8365, paragraph 38). | 35. S’agissant, en premier lieu, de la question de savoir s’il est possible d’apprécier la validité de la note complémentaire litigieuse au regard de la décision de l’ORD, il convient de rappeler que, compte tenu de leur nature et de leur économie, les accords OMC ne figurent pas en principe parmi les normes au regard desquelles la Cour contrôle la légalité des actes des institutions de l’Union. Ce n’est que dans l’hypothèse où l’Union a entendu donner exécution à une obligation particulière assumée dans le cadre de l’OMC ou dans l’occurrence où l’acte de l’Union renvoie expressément à des dispositions précises des accords OMC qu’il appartient à la Cour de contrôler la légalité de l’acte en cause au regard des règles de l’OMC (voir arrêt du 1 er mars 2005, Van Parys, C‑377/02, Rec. p. I‑1465, points 39 et 40 ainsi que jurisprudence citée). | 0 |
6,588 | 120. It should be recalled that the protection of health and the protection of the environment are essential objectives of the European Union. Article 2 EC states that the Community has, as one of its tasks, to promote ‘a high level of protection and improvement of the quality of the environment’ and Article 3(1)(p) EC states that the activities of the Community are to include a contribution to the attainment of ‘a high level of health protection’ (see, to that effect, Case 240/83 ADBHU [1985] ECR 531, paragraph 13; Case C‑195/90 Commission v Germany [1992] ECR I‑3141, paragraph 29; and Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑10515, paragraph 91). | 73. Par ailleurs, l’effectivité du contrôle juridictionnel garanti par l’article 47 de la Charte exige également que le juge de l’Union s’assure que la décision, qui revêt une portée individuelle pour la personne ou l’entité concernée, repose sur une base factuelle suffisamment solide. Cela implique une vérification des faits allégués dans l’exposé des motifs qui sous-tend ladite décision, de sorte que le contrôle juridictionnel ne soit pas limité à l’appréciation de la vraisemblance abstraite des motifs invoqués, mais porte sur le point de savoir si ces motifs, ou, à tout le moins, l’un d’eux considéré comme suffisant en soi pour soutenir cette même décision, sont étayés (voir arrêt Kadi II, point 119). | 0 |
6,589 | 13. The Court has also held that the investment, however small, of a private undertaking in the capital of an undertaking of which the awarding authority also forms part prevents, in any event, the awarding authority from being able to exercise a control over it similar to that which it exercises over its own departments, given that any private capital investment in an undertaking follows considerations proper to private interests and pursues objectives of a different kind from those pursued by a public authority (see Case C‑26/03 Stadt Halle and RPL Lochau EU:C:2005:5, paragraphs 49 and 50).
Portuguese law | 43. Consequently, a profit-making nature does not determine conclusively whether a retransmission, such as that at issue in the main proceedings, is to be categorised as a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29. | 0 |
6,590 | 19 In particular, Article 40(3) of the Treaty covers all measures relating to the common organization of the agricultural markets, irrespective of the authority which lays them down. Consequently, it is also binding on the Member States when they are implementing the said common organization (see, in particular, Klensch and Others, cited above, paragraph 8, and Case C-351/92 Graff v Hauptzollamt Köln-Rheinau [1994] ECR I-3361, paragraph 18). | 54. It is therefore for the national court to determine whether A has in fact proved that B has exhausted all the possibilities of taking account of the losses which exist in Sweden. | 0 |
6,591 | 47. It is inherent in the principle of the fiscal autonomy of Member States that they determine the evidence that must be provided and the formal and material conditions which must be respected to enable the tax authorities to establish correctly the tax owed on the income earned from investment funds (see, by analogy, judgment in Meilicke and Others , EU:C:2011:438, paragraph 37). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
6,592 | 30. Directive 90/435 seeks, by the introduction of a common system of taxation, to eliminate any disadvantage to cooperation between companies of different Member States as compared with cooperation between companies of the same Member State and thereby to facilitate the grouping together of companies at Community level (Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraph 103). | 103. As appears particularly from the third recital in its preamble, the aim of that directive is, by the introduction of a common system of taxation, to eliminate any disadvantage to cooperation between companies of different Member States as compared with cooperation between companies of the same Member State and thereby to facilitate the grouping together of companies at Community level (Joined Cases C‑283/94, C-291/94 and C-292/94 Denkavit and Others [1996] ECR I‑5063, paragraph 22, and Case C-294/99 Athinaïki Zithopiïa [2001] ECR I‑6797, paragraph 25). | 1 |
6,593 | 46
In that context, it must also be stated that, although Directive 2004/38 requires the host Member State to take account of the individual situation of the person concerned before it adopts an expulsion measure or finds that the residence of that person is placing an unreasonable burden on its social assistance system (judgment in Brey, C‑140/12, EU:C:2013:565, paragraphs 64, 69 and 78), no such individual assessment is necessary in circumstances such as those at issue in the main proceedings. | 31. Article 1 of Directive 2000/78 states that the purpose of the directive is to lay down a general framework, as regards employment and occupation, for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation. The purpose of Directive 2000/43, as is apparent from Article 1 thereof, is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin. | 0 |
6,594 | 18. The referring court is therefore correct in asking its questions with regard to Directive 79/7, which applies to statutory schemes on social security, including statutory pension schemes (Case C‑154/92 van Cant [1993] ECR I‑3811, paragraphs 10 and 11). | 36. It is a matter, secondly, of ensuring a correspondence between deduction of input tax and charging of output tax (see the Opinion of Advocate General Jacobs in Charles and Charles-Tijmens , paragraph 60). | 0 |
6,595 | 36. In those circumstances, it must be held that, by authorising the irrigation project in the irrigable area of the Segarra-Garrigues Canal, the Member State concerned did not fulfil its obligation under the first sentence of Article 4(4) of the Birds Directive to take appropriate measures to avoid, in the areas affected by that project which ought to have been classified as SPAs, the prohibited disturbances, since that obligation exists, in accordance with the case-law of the Court, before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has materialised (see Case C‑355/90 Commission v Spain [1993] ECR I‑4221, paragraph 15). | 15 The Commission' s view must be upheld on this point. Articles 3 and 4 of the directive require Member States to preserve, maintain and re-establish habitats as such, because of their ecological value. Moreover, it follows from the ninth recital in the preamble to the directive that the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds. The obligations on Member States under Articles 3 and 4 of the directive therefore exist before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has materialized. | 1 |
6,596 | 70. Even if, in practice, the authorities of a Member State do not apply a national provision which is at variance with Community law, the principle of legal certainty nevertheless requires that that provision be amended (see, to that effect, Case C‑358/98 Commission v Italy [2000] ECR I‑1255, paragraphs 16 and 17, and Case C‑160/99 Commission v France [2000] ECR I‑6137, paragraph 22). | 34. The Republic of Poland stated before the Court that the requirement at issue in the main proceedings, first, applies only to domestic transactions and, second, is not qualified by any condition as to form and may therefore be satisfied by any appropriate means. It argued that that requirement may be regarded, in principle, as not excessively onerous for taxable persons who are suppliers of goods or services. | 0 |
6,597 | 26. D’autre part, il est de jurisprudence constante que, dans l’intérêt de la sécurité juridique et de la facilité des contrôles, le critère décisif pour le classement tarifaire des marchandises doit être recherché, d’une manière générale, dans leurs caractéristiques et propriétés objectives, telles que définies par le libellé de la position de la NC et des notes de section ou de chapitre (voir, notamment, arrêts Proxxon, C-500/04, EU:C:2006:111, point 21, et Vario Tek, C-178/14, EU:C:2015:152, point 21 et jurisprudence citée). | 13. According to settled case-law, questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of 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, to that effect, Joined Cases C‑222/05 to C-225/05 van der Weerd and Others [2007] ECR I-4233, paragraph 22, and the case-law cited). | 0 |
6,598 | 39. The jurisdiction of the Court of Justice to review the findings of fact by the Court of First Instance therefore extends, inter alia, to the substantive inaccuracy of those findings as apparent from the documents in the file, the distortion of the evidence, the legal characterisation of that evidence and the question whether the rules relating to the burden of proof and the taking of evidence have been observed ( ( Joined Cases C-2/01 P and C‑3/01 P BAI and Commission v Bayer [2004] ECR I-23, paragraphs 47, 61 and 117, and Case C-551/03 P General Motors v Commission [2006] ECR I-3173, paragraphs 51 and 52). | 28 Furthermore, the only derogations from the obligation laid down in Article 4(1) of the directive are those provided for in Articles 4(3), 5(2) and 8, whose provisions are summarised above. It follows that the directive requires the Member States to take steps to ensure that certain results are attained, and that, apart from those derogations, they cannot rely on particular circumstances to justify a failure to fulfil that obligation (see, to that effect, Case C-56/90 Commission v United Kingdom [1993] ECR I-4109, paragraph 43). | 0 |
6,599 | 57. Thirdly, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the referring court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzo and Others [1993] ECR I‑393, paragraph 6; Case C‑341/95 Bettati [1998] ECR I‑4355, paragraph 67; Case C‑67/96 Albany International [1999] ECR I‑5751, paragraph 39; and Cipolla and Others , paragraph 25). | 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 |
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