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64. It follows that the right of public access would potentially be frustrated, to that extent, without any objective reason. The effectiveness of that right would thereby be substantially reduced (see, by analogy, Case C‑353/99 P Council v Hautala [2001] ECR I‑9565, paragraph 26).
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36. As regards the assessment of the distinctive character of such marks, the Court has already held that it is inappropriate to apply to slogans criteria which are stricter than those applicable to other types of sign ( OHIM v Erpo Möbelwerk , paragraphs 32 and 44).
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861,401 |
50. As regards the proposal to amend the Meststoffenwet and adopt a regulation governing storage capacity for livestock manure, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see Case C-127/99 Commission v Italy [2001] ECR I-8305, paragraph 38, and Case C-122/02 Commission v Belgium [2003] ECR I-833, paragraph 11).
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37. It follows that "genuine use" of the mark entails use of the mark on the market for the goods or services protected by that mark and not just internal use by the undertaking concerned. The protection the mark confers and the consequences of registering it in terms of enforceability vis-à-vis third parties cannot continue to operate if the mark loses its commercial raison d'être , which is to create or preserve an outlet for the goods or services that bear the sign of which it is composed, as distinct from the goods or services of other undertakings. Use of the mark must therefore relate to goods or services already marketed or about to be marketed and for which preparations by the undertaking to secure customers are under way, particularly in the form of advertising campaigns. Such use may be either by the trade mark proprietor or, as envisaged in Article 10(3) of the Directive, by a third party with authority to use the mark.
| 0 |
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56. In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid (see, in particular, Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 11; Case C‑53/00 Ferring [2001] ECR I-9067, paragraph 21; and Case C-372/97 Italy v Commission , cited above, paragraph 52).
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109. Il y a lieu de constater que les décisions 2010/413 et 2010/644 sont fondées sur l’article 29 TUE, que le règlement d’exécution n o 668/2010 est fondé sur l’article 291, paragraphe 2, TFUE et le règlement n o 423/2007, et que le règlement n o 961/2010 est fondé sur l’article 215 TFUE. Ces dispositions des traités donnaient au Conseil la compétence pour adopter les actes litigieux, contenant des mesures restrictives autonomes, distinctes de mesures recommandées spécifiquement par le Conseil de sécurité.
| 0 |
861,403 |
63. In paragraph 34 of Lakebrink and Peters-Lakebrink , the Court stated that the scope of the case-law arising from Schumacker extends to all the tax advantages connected with the non-resident’s ability to pay tax which are granted neither in the State of residence nor in the State of employment.
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29 Any obligation systematically to notify such information is contrary to the freedom to market insurance products within the Community, which Directives 92/94 and 92/96 are designed to achieve.
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23
Admittedly, the intended use of a product may also constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties. However, the intended use of a product is a relevant criterion only where the classification cannot be made on the sole basis of the objective characteristics and properties of the product (judgment of 9 June 2016, MIS, C‑288/15, EU:C:2016:424, paragraph 24).
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24
Moreover, according to equally settled case-law, the intended use of a product may also constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (judgments of 20 June 2013 in Agroferm, C‑568/11, EU:C:2013:407, paragraph 41, and of 4 March 2015 in Oliver Medical, C‑547/13, EU:C:2015:139, paragraph 47). In addition, the intended use of a product is a relevant criterion only where the classification cannot be made on the sole basis of the objective characteristics and properties of the product (judgments of 16 December 2010 in Skoma-Lux, C‑339/09, EU:C:2010:781, paragraph 47, and of 28 April 2016, in Oniors Bio, C‑233/15, EU:C:2016:305, paragraph 33).
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8. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia , Case C-71/99 Commission v Germany [2001] ECR I-5811, paragraph 29, and Case C-110/00 Commission v Austria [2001] ECR I-7545, paragraph 13).
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41. It must therefore be concluded that if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.
| 0 |
861,406 |
47. It is apparent from the order for reference that, contrary to the case which gave rise to Deutsche Telekom v Commission , TeliaSonera, as stated in paragraph 6 of this judgment, was not under any regulatory obligation to supply ADSL input services to operators.
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35 The fact remains, however, that when exercising their powers in this area Member States must ensure both the basic freedoms guaranteed by the Treaty and the effectiveness of directives containing measures to abolish obstacles to the free movement of persons between those States, so that the exercise by citizens of the European Union and members of their family of the right to reside in the territory of any Member State may be facilitated (see Joined Cases C-193/97 and C-194/97 De Castro Freitas and Escallier v Ministre des Classes Moyennes et du Tourisme [1998] ECR I-6747, paragraph 23).
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861,407 |
62. It follows that in a situation such as that referred to by the national court in its second question, where a body of materials consists of several separate modules, it is necessary, in order to assess whether an extraction and/or re-utilisation allegedly made from one of the modules covered a substantial part, evaluated quantitatively, of the contents of a database, to determine first whether that module itself constitutes a database within the meaning of Directive 96/9 (see, in that regard, Case C-444/02 Fixtures Marketing [2004] ECR I-10549, paragraphs 19 to 32) and, in addition, fulfils the criteria laid down in Article 7(1) of the Directive for protection by the sui generis right.
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60. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC ( Commission v Ireland , cited above, paragraph 31).
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861,408 |
52. In that regard, it should be borne in mind that it is not for the Court, in the context of the judicial cooperation established by Article 267 TFEU, to give a ruling on the interpretation of provisions of national law, or to decide whether the interpretation given by the national court of those provisions is correct. The Court must take account, under the division of jurisdiction between it and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (Case C‑518/08 Fundación Gala-Salvador Dalí and VEGAP EU:C:2010:191, paragraph 21 and the case-law cited, and Case C‑212/10 Logstor ROR Polska EU:C:2011:404, paragraph 30).
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28. Thus it is clear from the seventh recital in the preamble to the Directive that "attainment of the objectives at which this approximation [of the laws of the Member States] is aiming requires that the conditions for obtaining and continuing to hold a registered trade mark are, in general, identical in all Member States" . The eighth recital states that "in order to reduce the total number of trade marks registered and protected in the Community and, consequently, the number of conflicts which arise between them, it is essential to require that registered trade marks must actually be used or, if not used, be subject to revocation" , and the ninth recital states that "it is fundamental, in order to facilitate the free circulation of goods and services, to ensure that henceforth registered trade marks enjoy the same protection under the legal systems of all the Member States" . Articles 10 to 15 of the Directive lay down the substantive conditions to which both maintenance of the rights conferred by the use of a mark on its proprietor and challenges to those rights on grounds, inter alia, of lack of genuine use ─ a concept which is essential to maintaining rights to the mark ─ are subject.
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21. The actual period of the letting is thus not, of itself, the decisive factor in determining whether a contract is one for the letting of immovable property under Community law, even if the fact that accommodation is provided for a brief period only may constitute an appropriate basis for distinguishing the provision of hotel accommodation from the letting of dwelling accommodation (Case C-346/95 Blasi [1998] ECR I-481, paragraphs 23 and 24).
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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.
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53
In that regard, it is apparent from the settled case-law of the Court that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (judgment in Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 44 and the case-law cited).
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73 The use of renewable energy sources for producing electricity, which a statute such as the amended Stromeinspeisungsgesetz is intended to promote, is useful for protecting the environment in so far as it contributes to the reduction in emissions of greenhouse gases which are amongst the main causes of climate change which the European Community and its Member States have pledged to combat.
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15 As the Court held in its judgment in Case 66/85 Lawrie-Blum v Land Baden Wuerttemberg [1986] ECR 2145, paragraphs 19 to 21, a person engaged in preparatory training in the course of occupational training must be regarded as a worker if the training period is completed under the conditions of genuine and effective activity as an employed person.
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26. Such a restriction is permissible only if it relates to situations which are not objectively comparable or if it is justified by an overriding reason in the public interest (judgment in Nordea Bank Danmark , C‑48/13, EU:C:2014:2087, paragraph 23 and the case-law cited).
| 0 |
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69. However, measures which restrict the freedom to provide services may be justified by the objective of combating drug tourism and the accompanying public nuisance only if they are suitable for securing the attainment of that objective and do not go beyond what is necessary in order to attain it (see, to that effect, Omega , paragraph 36; Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union [2007] ECR I-10779, paragraph 75; and Case C‑244/06 Dynamic Medien [2008] ECR I-505, paragraph 42).
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14 The answer to the first question submitted must therefore be that heading 61.08 of the Combined Nomenclature of the Common Customs Tariff, as amended by Regulations No 2658/87 and No 3174/88, must be interpreted as meaning that not only sets of two knitted garments which, according to their outward appearance, are to be worn exclusively in bed but also sets used mainly for that purpose must be considered to be pyjamas.
The second question
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42 The Court has consistently held that if a charge is incompatible with Article 95 of the Treaty, it is prohibited to the extent to which it discriminates against imported products (see, to this effect, Case 68/79 Just [1980] ECR 501, paragraph 14, and Case C-72/92 Scharbatke [1993] ECR I-5509, paragraph 10).
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37. À cet égard, il résulte de la jurisprudence qu’est recevable le pourvoi formé contre un arrêt du Tribunal en ce que celui-ci a rejeté une exception d’irrecevabilité soulevée par une partie à l’encontre d’un recours, alors que le Tribunal a, dans la suite du même arrêt, rejeté ce recours comme non fondé (arrêts du 26 février 2002, Conseil/Boehringer, C‑23/00 P, Rec. p. I‑1873, point 50, ainsi que du 22 février 2005, Commission/max.mobil, C‑141/02 P, Rec. p. I‑1283, points 50 et 51).
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24. While it is true that the second subparagraph of Article 1(d) of Directive 89/48 provides that the professions covered by that provision are to be deemed to be regulated professions where they are pursued by a member of the organisation or association concerned, that deemed equivalence, as observed by the Advocate General in point 57 of his Opinion, is not full equivalence, and those professions do not constitute regulated professions within the meaning of Article 1(c) of that directive. Consequently, the recognition mechanism provided for in point (a) of the first subparagraph of Article 3 thereof cannot, contrary to the Court’s ruling in paragraphs 45 and 47 of Price , be relied on by members of such professions who apply for recognition. Furthermore, contrary to what seems to follow from paragraphs 36, 45, 46 and 48 of Price , it is the mechanism of recognition provided for in point (b) of the first subparagraph of Article 3 of Directive 89/48 which is applicable to a profession falling under the second subparagraph of Article 1(d) of that directive.
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64. Although the national court seised is not, therefore, obliged, if the defendant contests the applicant’s allegations, to conduct a comprehensive taking of evidence at the stage of determining jurisdiction, it must be pointed out that both the objective of the sound administration of justice, which underlies Regulation No 44/2001, and respect for the independence of the national court in the exercise of its functions require the national court seised to be able to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the defendant’s allegations.
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96. It follows that, while restrictions of the free movement of capital between nationals of States party to the EEA Agreement must be assessed in the light of Article 40 of and Annex XII to that agreement, those provisions have the same legal scope as the substantially identical provisions of Article 56 EC (see Case C‑521/07 Commission v Netherlands [2009] ECR I‑4873, paragraph 33, and Commission v Italy , paragraph 66).
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18 In those cases there was a direct link between the deductibility of the contributions and the tax on the sums payable by the insurers under death and old-age insurance policies, a link which had to be preserved in order to preserve the integrity of the relevant fiscal regime, whereas there is no direct link whatsoever in this case between the grant of the interest rate subsidy to borrowers on the one hand and its financing by means of the profit tax on financial establishments on the other.
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861,416 |
93. Or, une telle répétition de comportements infractionnels d’un État membre, dans un secteur spécifique de l’action de l’Union, constitue un indicateur de ce que la prévention effective de la répétition future d’infractions analogues au droit de l’Union est de nature à requérir l’adoption d’une mesure dissuasive, telle que la condamnation au paiement d’une somme forfaitaire (voir arrêt Commission/Italie, C‑196/13, EU:C:2014:2407, point 116 et jurisprudence citée).
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16 IT FOLLOWS FROM THOSE CONSIDERATIONS THAT THE PRICE ACTUALLY PAID OR PAYABLE , ON WHICH THE TRANSACTION VALUE IS BASED ACCORDING TO ARTICLE 3 ( 1 ) OF COUNCIL REGULATION NO 1224/80 , MUST BE ADJUSTED WHERE THAT IS NECESSARY IN ORDER TO AVOID THE SETTING OF AN ARBITRARY OR FICTITIOUS CUSTOMS VALUE .
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61
In order to assess whether a penalty is consistent with the principle of proportionality, account must be taken, inter alia, of the nature and the degree of seriousness of the infringement which the penalty is intended to sanction and of the means of establishing the amount of the penalty (see, to that effect, judgments of 8 May 2008, Ecotrade, C‑95/07 and C‑96/07, EU:C:2008:267, paragraphs 65 to 67; and of 20 June 2013, Rodopi-M 91, C‑259/12, EU:C:2013:414, paragraph 38).
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61. In that regard, it should be pointed out that while one of the documents referred to in paragraphs 58 and 59 above specifies that the lagoons of the upper Somme and the canals of the Aa river delta suffer from eutrophication, it defines that term as ‘enrichment in nutrients … which can lead to plant growth’, so that it is not possible to tell from that document whether the waters referred to satisfy the third and fourth criteria for eutrophication.
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57. According to settled case-law, that principle of invalidity can be relied on by anyone, and the courts are bound by it once the conditions for the application of Article 81(1) EC are met and so long as the agreement concerned does not justify the grant of an exemption under Article 81(3) EC (see on the latter point, inter alia, Case 10/69 Portelange [1969] ECR 309, paragraph 10). Since the invalidity referred to in Article 81(2) EC is absolute, an agreement which is null and void by virtue of this provision has no effect as between the contracting parties and cannot be invoked against third parties (Case 22/71 Béguelin [1971] ECR 949, paragraph 29). Moreover, it is capable of having a bearing on all the effects, either past or future, of the agreement or decision concerned (see Case 48/72 Brasserie de Haecht [1973] ECR 77, paragraph 26, and Courage and Crehan , cited above, paragraph 22).
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8 IT FOLLOWS FROM THE PURPOSE ASSIGNED TO THE PRE-CONTENTIOUS STAGE OF THE PROCEEDINGS FOR FAILURE OF A STATE TO FULFIL ITS OBLIGATIONS THAT A LETTER GIVING FORMAL NOTICE IS INTENDED TO DELIMIT THE SUBJECT-MATTER OF THE DISPUTE AND TO INDICATE TO THE MEMBER STATE WHICH IS INVITED TO SUBMIT ITS OBSERVATIONS THE FACTORS ENABLING IT TO PREPARE ITS DEFENCE .
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28. According to the case-law of the Court, such an abuse might lie in the imposition of a price which is excessive in relation to the economic value of the service provided (see Case 26/75 General Motors Continental v Commission [1975] ECR 1367, paragraph 12, and United Brands and United Brands Continentaal v Commission , paragraph 250).
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44. Consequently, whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the Directive, which is that no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive screening, be regarded as not being likely to have such effects ( WWF , paragraph 45).
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30. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 39, and Michaniki [2008] ECR I‑0000, paragraph 34).
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39 Nevertheless, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Bosman, paragraph 61; Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20; Case C-322/98 Kachelmann [2000] ECR I-7505, paragraph 17).
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34. According to consistent case-law, in the context of competition law, the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (see, in particular, Case C‑41/90 Höfner and Elser [1991] ECR I‑1979, paragraph 21, and Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 38).
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80 The Court has held, in proceedings concerning the application of Article 93(2) of the Treaty, that publication of a notice in the Official Journal of the European Communities is an appropriate means of informing all the parties concerned that a procedure has been initiated (Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 17). That communication is intended to obtain from persons concerned all information required for the guidance of the Commission with regard to its future action (Case 70/72 Commission v Germany [1973] ECR 813, paragraph 19). Such a procedure also guarantees to the other Member States and the sectors concerned an opportunity to make their views known (Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 13). The same principles apply in regard to the Fifth Code.
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112. It is therefore important that mechanisms be established which ensure the creation of a genuine market for certificates in which supply can match demand, reaching some kind of balance, so that it is actually possible for the relevant suppliers to obtain certificates under fair terms (see, to that effect, Ålands Vindkraft , EU:C:2014:2037, paragraph 114).
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43 It must be recalled that the Treaty provisions concerning freedom of movement for persons do not prevent the adoption of rules or practices excluding foreign players from certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, such as, for example, matches between national teams from different countries. The Court stressed, however, that that restriction on the scope of the provisions in question must remain limited to its proper objective and cannot be relied upon to exclude the whole of a sporting activity (see Case 13/76 Donà v Mantero [1976] ECR 1333, paragraphs 14 and 15, and Bosman, paragraphs 76 and 127).
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50 It is settled law that it is for the Court of First Instance alone to assess the value to be attached to the items of evidence adduced before it (Case C-136/92 P Commission v Brazzelli Lualdi [1994] ECR I-1981, paragraph 66, and Blackspur DIY and Others v Council and Commission, cited above, paragraph 29).
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40. En effet, la valeur transactionnelle doit refléter la valeur économique réelle d’une marchandise importée et tenir compte de l’ensemble des éléments de cette marchandise qui présentent une valeur économique (arrêts Compaq Computer International Corporation, précité, point 30, et du 15 juillet 2010, Gaston Schul, C‑354/09, Rec. p. I‑7449, point 29 et jurisprudence citée).
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19. In that regard, it is apparent from the case-law that it is in particular a taxable person’s intention, confirmed by objective evidence, to use an item or a service for business purposes which makes it possible to determine whether, at the time when he carries out the input transaction, the taxable person is acting as such and must therefore be entitled to deduct the VAT payable or paid in respect of that item or services (see, to that effect, Lennartz , paragraph 8 and Case C-400/98 Breitsohl [2000] ECR I-4321, paragraph 34).
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36. In that connection, it is true that the Court has recognised that it may be legitimate for a Member State, in order to ensure that the grant of assistance to cover the maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State, to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that State, and that if a risk exists that a Member State may have to bear such an unreasonable burden, similar considerations may apply as regards the award by that State of education or training grants to students wishing to study in other Member States ( Morgan and Bucher , paragraphs 43 and 44 and the case-law cited).
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56. In particular, when that proprietor registers its own trade mark as a keyword with a referencing service provider in order to have an advertisement appear under the heading ‘sponsored links’, it will sometimes – if its trade mark has also been selected as a keyword by a competitor – have to pay a higher price per click than the competitor if it wishes to ensure that its advertisement appears before that of the competitor ( Google France and Google , paragraph 94).
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6 HOWEVER , THE NEED FOR A UNIFORM INTERPRETATION OF COMMUNITY REGULATIONS MAKES IT IMPOSSIBLE FOR THAT PASSAGE TO BE CONSIDERED IN ISOLATION AND REQUIRES THAT IT SHOULD BE INTERPRETED AND APPLIED IN THE LIGHT OF THE VERSIONS EXISTING IN THE OTHER OFFICIAL LANGUAGES .
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24
In answering that question, it must be noted from the outset that it is apparent from the second subparagraph of Article 1(1) of Directive 98/59, which makes it clear that that directive only applies when there are at least five ‘redundancies’, that the directive distinguishes between ‘redundancies’ and ‘terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned’ (see, to that effect, judgment of 11 November 2015, Pujante Rivera, C‑422/14, EU:C:2015:743, paragraphs 44 and 45).
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45. Moreover, that interpretation is confirmed by the purpose of Directive 98/59, as is clear from its preamble. Recital 8 in the preamble states that, in order to calculate the number of redundancies provided for in the definition of collective redundancies, other forms of termination of employment contracts on the initiative of the employer should be equated to redundancies, provided that there are at least five ‘redundancies’. As observed by the Advocate General at point 43 of her Opinion, it is those ‘true’ redundancies which the EU legislature intended to cover by the adoption of provisions relating to collective redundancies.
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43
Only a contract concluded for pecuniary interest may constitute a public contract coming within the scope of Directive 2004/18, the pecuniary nature of the contract meaning that the contracting authority which has concluded a public contract receives a service which must be of direct economic benefit to that contracting authority (see, to that effect, judgment of 25 March 2010, Helmut Müller, C‑451/08, EU:C:2010:168, paragraphs 47 to 49). The synallagmatic nature of the contract is thus an essential element of a public contract, as observed by the Advocate General in point 36 of his Opinion.
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42. It is also apparent from settled case-law that Article 267 TFEU does not make available a means of redress to the parties to a case pending before a national court, so that the Court cannot be compelled to evaluate the validity of Union law on the sole ground that that question has been put to it by one of the parties in its written observations (see judgment in MSD Sharp & Dohme , C‑316/09, EU:C:2011:275, paragraph 23 and the case-law cited).
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34. Those provisions are intended to specify and to limit the effects of force majeure with regard to export refunds (see, to that effect, Case C‑263/97 First City Trading and Others [1998] ECR I‑5537, paragraph 41).
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41 En ce qui concerne les dispositions du règlement n_ 3665/87 relatives à la force majeure, il est de jurisprudence constante que, la notion de force majeure n'ayant pas un contenu identique dans les divers domaines d'application du droit communautaire, sa signification doit être déterminée en fonction du cadre légal dans lequel elle est destinée à produire ses effets (voir, notamment, arrêt du 7 décembre 1993, Huygen e.a., C-12/92, Rec. p. I-6381, point 30). Le règlement n_ 3665/87 n'est donc pas contraire aux principes généraux du droit communautaire en ce qu'il précise et limite les effets de la force majeure en matière de restitutions à l'exportation.
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30
The Court notes in that regard that, according to settled case-law, the right of taxable persons to deduct the VAT due or paid on goods purchased and services received as inputs from the VAT which they are liable to pay is a fundamental principle of the common system of VAT established by EU law (see judgments of 8 January 2002 in Metropol and Stadler, C‑409/99, EU:C:2002:2, paragraph 42, and of 6 September 2012 in Tóth, C‑324/11, EU:C:2012:549, paragraph 23).
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Dans le cadre de la procédure de coopération entre les juridictions nationales et la Cour instituée à l’article 267 TFUE,
il appartient à celle‑ci de donner au juge national une réponse utile qui lui permette de trancher le litige dont il est saisi.
Dans cette optique, il incombe, le cas échéant, à la Cour de reformuler les questions qui lui sont soumises (arrêts du 4 septembre
2014, eco cosmetics et Raiffeisenbank St. Georgen, C‑119/13 et C‑120/13, EU:C:2014:2144, point 32, ainsi que du 16 juillet
2015, Abcur, C‑544/13 et C‑545/13, EU:C:2015:481, point 33).
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23 The term "worker" used in Article 41(1) of the Cooperation Agreement therefore covers a Moroccan national such as the claimant before the national court who is incapable of working following an industrial accident suffered by him in the Member State in which he has been living for more than five years and who applies for a disability allowance.
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34 A legislative provision such as the one at issue in the main proceedings has the effect of dissuading nationals of a Member State residing in the Netherlands from investing their capital in companies which have their seat in another Member State. It is also clear from the legislative history of that provision that the exemption of dividends, accompanied by the limitation of that exemption to dividends on shares in companies which have their seat in the Netherlands, was intended specifically to promote investments by individuals in companies so established in the Netherlands in order to increase their equity capital.
| 0 |
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67. If the question of the burden of proof concerning distinctive character acquired by use which has been made of a mark in the context of invalidity proceedings were a matter for the national law of the Member States, the consequence for proprietors of trade marks could be that protection would vary according to the legal system concerned, with the result that the objective of ‘the same protection under the legal systems of all the Member States’ set out in recital 10 in the preamble to Directive 2008/95, where it is described as ‘fundamental’, would not be attained (see, by analogy, Case C‑405/03 Class International EU:C:2005:616, paragraph 73 and the case-law cited, and Case C‑479/12 H. Gautzsch Großhandel EU:C:2014:75, paragraph 40).
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11 TO THAT END, FOR THE PURPOSES OF LIABILITY TO CAPITAL DUTY THE PROVISION IS INTENDED TO APPLY TO THE RAISING OF CAPITAL WHICH, WHILE HAVING THE SAME ECONOMIC FUNCTION AS CAPITAL COMPANIES PROPERLY SO CALLED, NAMELY THE EARNING OF PROFIT BY THE POOLING OF CAPITAL IN A SEPARATE FUND, DOES NOT SATISFY THE CRITERIA OF A CAPITAL COMPANY AS DEFINED IN ARTICLE 3*(1 ).
| 0 |
861,432 |
25. In relation to VAT, it follows, first, from Articles 2, 250(1) and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), which reproduce inter alia the provisions of Article 2 of the Sixth Directive and of Article 22(4) and (8) of that directive in the version resulting from Article 28h thereof, and second, from Article 4(3) TEU that every Member State is under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory and for preventing evasion (see Case C-132/06 Commission v Italy [2008] ECR I-5457, paragraphs 37 and 46).
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23. In paragraph 38 of EMAG Handel Eder , the Court held that, even if two successive supplies give rise only to a single movement of goods, they must be regarded as having followed each other in time.
| 0 |
861,433 |
18. In that regard, the Court notes that it is settled case‑law that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the question referred to it (see, inter alia, Case C‑286/05 Haug [2006] ECR I‑4121, paragraph 17, and Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 46).
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14 The system of remedies set up by the Treaty distinguishes between the remedies provided for in Articles 169 and 170, which permit a declaration that a Member State has failed to fulfil its obligations, and those contained in Articles 173 and 175, which permit judicial review of the lawfulness of measures adopted by the Community institutions, or the failure to adopt such measures . Those remedies have different objectives and are subject to different rules . In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot therefore plead the unlawfulness of a decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision .
| 0 |
861,434 |
17
In that connection, the Court has on many occasions held that it had jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations in which the facts of the cases before the national courts fell outside the scope of that law, provided that those provisions had been rendered applicable by national law, which had adopted, for purely internal situations, the same approach as that provided for under EU law. In such cases, according to the settled case-law of the Court, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, inter alia, judgments of 14 March 2013 in Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 20; 4 December 2014 in FNV Kunsten Informatie en Media, C‑413/13, EU:C:2014:2411, paragraph 18; and 26 November 2015 in Maxima Latvija, C‑345/14, EU:C:2015:784, paragraph 12).
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66 Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration.
| 0 |
861,435 |
34. As regards the division of jurisdiction between the Community judicature and national courts, it is for the national court to determine whether those conditions are fulfilled in the case pending before it. The Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, to that effect, Case C-79/01 Payroll and Others [2002] ECR I-8923, paragraphs 28 and 29). In that connection, and in answer to the questions referred by the national court, it is for that court to take account of the factors stated in the following paragraphs.
The admission condition
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45
It follows from all of the foregoing that a person who has ceased to work in a self-employed capacity, because of an absence of work owing to reasons beyond his control, after having carried on that activity for more than one year, is, like a person who has involuntarily lost his job after being employed for that period, eligible for the protection afforded by Article 7(3)(b) of Directive 2004/38. As set out in that provision, that cessation of activity must be duly recorded.
| 0 |
861,436 |
32. In addition, in the absence of any unifying or harmonising Community measures, Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (Case C‑336/96 Gilly [1998] ECR I‑2793, paragraphs 24 and 30; Case C‑307/97 Saint-Gobain ZN [1999] ECR I‑6161, paragraph 57; and Case C‑379/05 Amurta [2007] ECR I‑0000, paragraph 17). Apart from Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6), the Convention of 23 July 1990 on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (OJ 1990 L 225, p. 10) and Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the form of interest payments (OJ 2003 L 157, p. 38), the application of which in the dispute in the main proceedings has not been invoked, no unifying or harmonising measure designed to eliminate cases of double taxation has as yet been adopted at Community-law level.
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32. The Implementing Regulation therefore expressly provides that the Board of Appeal enjoys, when examining an appeal directed against a decision of the Opposition Division, the discretion deriving from the third subparagraph of Rule 50(1) of the Implementing Regulation and from Article 74(2) of Regulation No 40/94 to decide whether or not to take into account additional or supplementary facts and evidence which were not presented within the time-limits set or specified by the Opposition Division.
| 0 |
861,437 |
53 That definition of the term `onset of the employer's insolvency' cannot, however, preclude the option available to the Member States, acknowledged in Article 9 of the Directive, of applying or introducing provisions that are more favourable to employees, in particular for the purpose of including unpaid remuneration during a period subsequent to the lodging of a request that proceedings to satisfy collectively the claims of creditors be opened (see also the judgment of today's date in Joined Cases C-94/95 and C-95/95 Bonifaci and Others and Berto and Others, cited above, at paragraphs 36 to 43).
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Eu égard aux considérations qui précèdent, le deuxième argument doit être écarté comme étant non fondé.
| 0 |
861,438 |
25. The Court has pointed out that, owing to its non-public and precise nature and its ability to influence significantly the prices of the financial instruments concerned, inside information grants the insider in possession of such information an advantage in relation to all the other actors on the market, who are unaware of it (see judgment in Spector Photo Group and Van Raemdonck , EU:C:2009:806, paragraph 52).
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79. Next, as regards the issue whether, in such cases, the existence of an ‘equivalent legal measure’ within the meaning of clause 5(1) precludes the adoption by the Member State concerned of national legislation which, for the purposes of transposing Directive 1999/70 lays down specific measures, as in Articles 5 to 7 and 11 of Presidential Decree No 164/2004, designed to prevent the misuse of successive fixed-term employment contracts or relationships, it should be noted that, in prescribing the effective and binding adoption of at least one of the measures listed in clause 5(1) of the Framework Agreement intended to prevent the misuse of successive fixed-term employment contracts, where domestic law does not already include equivalent legal measures, clause 5(1) of the Framework Agreement assigns to the Member States the general objective of preventing such misuse, while leaving to them the choice as to how to achieve it ( Impact , paragraph 70 and case-law cited).
| 0 |
861,439 |
21. As the applicant has not requested, even by way of alternative submission, the annulment of Article 1(1), and as it, moreover, stressed in its reply and pointed out at the hearing that such a request by it would have been meaningless and that it was not seeking annulment of that provision, it must necessarily be held that the action is inadmissible (see the above judgments in Commission v Council , paragraphs 45 to 51, Commission v Parliament and Council , paragraphs 29 and 30, and Germany v Commission , paragraphs 33 to 38).
Costs
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29. According to Article 25 of the Sixth Directive, the common flat-rate scheme aims to offset the tax charged on purchases of goods and services made by farmers by way of a flat-rate compensation payment to farmers who carry on their activity in an agricultural, forestry or fisheries undertaking when they supply agricultural products or provide agricultural services. That compensation is calculated by applying a percentage, which has been fixed by the Member States, to the price, excluding tax, of the goods or services supplied by the flat-rate farmer to a taxable purchaser of goods or recipient of services other than a flat-rate farmer. It is paid either by the public authorities or by the taxable purchaser or recipient and excludes any other form of deduction of input VAT.
| 0 |
861,440 |
45. That right to a fair trial means that everyone must be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Such a right is applicable in the context of proceedings brought against a Commission decision (see, to that effect, Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 21).
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21 The general principle of Community law that everyone is entitled to fair legal process, which is inspired by those fundamental rights (see in particular Opinion 2/94 [1996] ECR I-1759, paragraph 33, and judgment in Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 14), and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law.
| 1 |
861,441 |
61. Similarly, it is not relevant that the tax measure at issue in the main proceedings was adopted by the Member State of origin of the person concerned (see, to that effect, Case 115/78 Knoors [1979] ECR 399, paragraph 24; Case C-61/89 Bouchoucha [1990] ECR I-3551, paragraph 13; Case C-19/92 Kraus [1993] ECR I-1663, paragraph 15; Case C-419/92 Scholz [1994] ECR I-505, paragraphs 8 and 9; and Case C-107/94 Asscher [1996] ECR I-3089, paragraph 32).
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14 The Decision does not affect the interests of the applicant companies alone. It also affects the interests of the railways, whose competitive position compared to other modes of transport is favoured by the reduced tariff. It is also of interest to the carriers to whom the applicants may entrust the consignment of their goods and which can, themselves, make use of the railway services. Finally, it concerns their customers, who, depending on the terms of the sales contracts, may be induced to bear some or all of the transport costs.
| 0 |
861,442 |
73. The Commission rightly points out that, under the second indent of Article 1(4) of Directive 91/689, the Member States concerned must notify the Commission of cases in which it classifies waste other than that in the LHW as hazardous ( Fornasar and Others , paragraph 51). It has not, however, replied to the argument of the Republic of Austria that it complied with that obligation when it formally notified the Commission of the 1997 regulation transposing the LHW.
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72. In the circumstances of this case, however, as found in paragraph 66 above, the Decree of 2004 contains no details of the actual circumstances in which the power of veto may be exercised and the criteria it lays down are not, therefore, based on objective verifiable conditions.
| 0 |
861,443 |
20. It is, furthermore, true that the Court has held that the margin of discretion available to the Member States to make provision for product liability is entirely determined by Directive 85/374 itself and must be inferred from its wording, purpose and structure (Case C-402/03 Skov and Bilka [2006] ECR I-199, paragraph 22 and the case-law cited).
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54. En l’occurrence, la vérification, par les SOA, de la capacité technique et financière des entreprises soumises à la certification, de la véracité et du contenu des déclarations, certificats et documents présentés par les personnes auxquelles l’attestation est délivrée ainsi que du maintien des conditions relatives à la situation personnelle du candidat ou du soumissionnaire ne saurait être considérée comme une activité relevant de l’autonomie décisionnelle propre à l’exercice de prérogatives de puissance publique. Cette vérification est entièrement déterminée par le cadre réglementaire national. En outre, elle est accomplie sous une surveillance étatique directe et elle a pour fonction de faciliter la tâche des pouvoirs adjudicateurs dans le domaine des marchés publics de travaux, sa finalité étant de permettre à ces derniers d’accomplir leur mission en ayant une connaissance précise et circonstanciée de la capacité tant technique que financière des soumissionnaires.
| 0 |
861,444 |
25
In order to determine whether there is a sufficiently serious breach of EU law, it is necessary to take account of all the factors which characterise the situation brought before the national court. Therefore, according to the Court’s case-law, among the factors which can be taken into consideration in that regard are, in particular, the degree of clarity and precision of the rule infringed, the scope of the room for assessment that the infringed rule allows for national authorities, whether the infringement and the damage caused were intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by an EU institution may have contributed to the adoption or maintenance of national measures or practices contrary to EU law, and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 267 TFEU (see, to that effect, judgments of 5 March 1996 in Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 56; of 30 September 2003 in Köbler, C‑224/01, EU:C:2003:513, paragraphs 54 and 55, and of 12 December 2006 in Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 213).
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52 The answer to Questions 2(a) to 2(c), 3(a), 3(b) and 4(c) is therefore that time spent on call by doctors in primary health care teams must be regarded in its entirety as working time, and where appropriate as overtime, within the meaning of Directive 93/104 if they are required to be present at the health centre. If they must merely be contactable at all times when on call, only time linked to the actual provision of primary care services must be regarded as working time.
Whether the work is night work (Questions 4(a) and 4(b))
| 0 |
861,445 |
42 The Community rules and the agreements concluded between the Community, Ukraine and the SEIB provide for a division of powers between the Commission and the agent appointed by Ukraine to arrange the purchase of wheat. It is for that agent - in the present case, Ukrimpex - to select the other contracting party by means of an invitation to tender and to negotiate and conclude the contract. The Commission's role is merely to verify that the conditions for Community financing are fulfilled and, where necessary, to acknowledge, for the purposes of disbursement of the loan, that such contracts are in conformity with the provisions of Decision 91/658 and with the agreements concluded with Ukraine and the SEIB. It is not for the Commission, therefore, to assess the commercial contract with reference to any other criteria.
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60. À cet égard, la Cour a déjà eu l’occasion de préciser que la réglementation des prix de fourniture du gaz naturel doit être proportionnée au regard de son champ d’application personnel et, plus précisément, de ses bénéficiaires. Elle a également jugé que cette exigence de proportionnalité n’est, en principe, pas respectée si cette réglementation bénéficie de manière identique aux particuliers et aux entreprises, en tant que consommateurs finals de gaz (voir, en ce sens, arrêt Federutility e.a., C-265/08, EU:C:2010:205, points 39 et 43).
| 0 |
861,446 |
23 In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, the judgments in Case 61/65 Vaassen (neé Göbbels) [1966] ECR 261; Case 14/86 Pretore di Salò v Persons unkown [1987] ECR 2545, paragraph 7; Case 109/88 Danfoss [1989] ECR 3199, paragraphs 7 and 8; Case C-393/92 Almelo and Others [1994] ECR I-1477; and Case C-111/94 Job Centre [1995] ECR I-3361, paragraph 9).
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104. Article 6(2) of Directive 93/104 satisfies those criteria, since it imposes on Member States in unequivocal terms a precise obligation as to the result to be achieved, which is not coupled with any condition regarding application of the rule laid down by it, which provides for a 48-hour maximum, including overtime, as regards average weekly working time.
| 0 |
861,447 |
30. Further according to that case-law, the acquisition by one or more natural persons residing in a Member State of all the shares in a company registered in another Member State, conferring on those persons definite influence over the company’s decisions and allowing them to determine its activities, is thus covered by the Treaty provisions on the freedom of establishment (see Case C-251/98 Baars [2000] ECR I‑2787, paragraphs 21 and 22, and Case C-208/00 Überseering [2002] ECR I‑9919, paragraph 77).
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28. Parmi ces éléments de rattachement figure, notamment, l’existence d’un «établissement stable à partir duquel les opérations sont effectuées», en cause dans la présente procédure.
| 0 |
861,448 |
22. Next, it should be recalled that national legislation which places at a disadvantage certain of the nationals of the Member State concerned simply because they have exercised their freedom to move and to reside in another Member State constitutes a restriction on the freedoms conferred by Article 21(1) TFEU on every citizen of the Union (Case C‑406/04 De Cuyper [2006] ECR I‑6947, paragraph 39, Morgan and Bucher , paragraph 25, and Prinz and Seeberger , paragraph 27).
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19 The Court has consistently held that although the appointing authority has wide discretion in comparing the candidates' merits and reports, especially with a view to the post to be filled, it must exercise it within the self-imposed limits contained in the notice of vacancy ( see the judgment of 30 October 1974 Grassi, cited above ).
| 0 |
861,449 |
55
It cannot be excluded a priori that a taxpayer is able to provide relevant documentary evidence enabling the tax authorities of the Member State of taxation to ascertain, clearly and precisely, the nature and genuineness of the income arising from pensions in another Member State (see, by analogy, judgment of 27 January 2009 in Persche, C‑318/07, EU:C:2009:33, paragraph 53).
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53. In that context, the Court has decided that the possibility cannot be excluded a priori that the taxpayer is able to provide relevant documentary evidence enabling the tax authorities of the Member State of taxation to ascertain, clearly and precisely, the nature and genuineness of the expenditure incurred in other Member States (see Case C‑254/97 Baxter and Others [1999] ECR I‑4809, paragraph 20, and Case C‑39/04 Laboratoires Fournier [2005] ECR I‑2057, paragraph 25).
| 1 |
861,450 |
47. As the Court held in paragraph 26 of its judgment in Case C-260/98 Commission v Greece [2000] ECR I-6537, an analysis of those definitions shows that the scope of the term economic activities is very wide, and that the term is objective in character, in the sense that the activity is considered per se and without regard to its purpose or results (see also Case 235/85 Commission v Netherlands [1987] ECR 1471, paragraph 8, and, to that effect, in particular Case 268/83 Rompelman [1985] ECR 655, paragraph 19, and Case C-497/01 Zita Modes [2003] ECR I-14393, paragraph 38).
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53. As regards the type of correction applied, it should be noted that, in the light of Document VI/5330/97, a flat-rate correction may be applied where it is not possible to determine precisely the losses suffered by the Community.
| 0 |
861,451 |
34. The notion of ‘personal injuries’ covers any type of damage, in so far as compensation for such damage is provided for as part of the civil liability of the insured under the national law applicable in the dispute, resulting from an injury to physical integrity, which includes both physical and psychological suffering ( Haasová , paragraph 47, and Drozdovs , paragraph 38).
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50. The 18th, 19th and 22nd recitals of the SME Recommendation, as well as point 3.2 of the SME Guidelines, make it clear that the purpose of the independence criterion is to ensure that the measures intended for SMEs genuinely benefit the enterprises for which size represents a handicap and not enterprises belonging to a large group which have access to funds and assistance not available to competitors of equal size. It also follows that, in order to ensure that only genuinely independent SMEs are included, there has to be a way of eliminating legal arrangements in which SMEs form an economic group much stronger than such an SME. It must also be ensured that the definition is not circumvented on formal grounds.
| 0 |
861,452 |
19. It should be noted in that regard that the fundamental right to the inviolability of the home is a general principle of EU law (see, to that effect, judgments in Hoechst v Commission , 46/87 and 227/88, EU:C:1989:337, paragraph 19; Dow Benelux v Commission , 85/87, EU:C:1989:379, paragraph 30; and Dow Chemical Ibérica and Others v Commission , 97/87 to 99/87, EU:C:1989:380, paragraph 16) as now expressed in Article 7 of the Charter, which corresponds to Article 8 of the ECHR.
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28. As discussed in the reply to the first two questions, an introduction is considered unlawful when goods, including those concealed in a vehicle without its driver’s knowledge, were not declared by that driver upon presentation to customs.
| 0 |
861,453 |
35. According to settled case-law, the only commercial practices which can be regarded by national law as unfair without a case-by-case assessment against the provisions of Articles 5 to 9 of the Directive are those listed in Annex I to the Directive. Consequently, a practice not covered by that annex may be declared unfair only after an examination of its unfairness in accordance with the criteria set out in Articles 5 to 9 (see, to that effect, Case C-304/08 Plus Warenhandelsgesellschaft [2010] ECR I-217, paragraphs 41 to 45, and Mediaprint Zeitungs- und Zeitschriftenverlag , paragraphs 30 to 34).
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20 As the Advocate General observes in point 25 of his Opinion, the TVergG does not contain any specific provisions on challenges to, or withdrawals by, members of the Landesvergabeamt.
| 0 |
861,454 |
129. It should be noted in that connection that the Court has already held that the fact that the legislation of the competent Member State does not guarantee a patient covered by that legislation, who has been authorised to receive hospital treatment in another Member State in accordance with Article 22(1)(c) of Regulation No 1408/71, a level of payment equivalent to that to which he would have been entitled if he had received hospital treatment in the competent Member State is an unjustified restriction of the freedom to provide services within the meaning of Article 49 EC (see Vanbraekel , paragraphs 43 to 52).
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55. It is not disputed that the ‘single economic entity’ concept was developed for the purposes of determining the normal value. The General Court thus rightly set out, in paragraphs 178 and 179 of the judgment under appeal, the specific situations in which it may be concluded that there is such an entity for the calculation of the normal value. However, it does not follow from those considerations that that concept is to be applied only in relation to the domestic markets of producer-exporters. If a producer exports his products to the European Union through the intermediary of a legally separate undertaking, but over which it holds economic control, the requirement of a finding reflecting the economic reality of the relations between that producer and that sales company militates more in favour of applying the ‘single economic entity’ concept when calculating the export price.
| 0 |
861,455 |
31. It must be observed in that regard that, under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case pending before it both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, to that effect, in particular, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59; Case C‑454/98 Schmeink & Cofreth and Strobel [2000] ECR I‑6973, paragraph 37; and Case C‑97/09 Schmelz [2010] ECR I‑0000, paragraph 28).
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11IT FOLLOWS THAT THE FAMILY BENEFITS OR ALLOWANCES WERE NOT ' ' PAYABLE ' ' UNDER THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE MEMBERS OF THE FAMILY WERE RESIDING .
| 0 |
861,456 |
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).
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11 One of the basic data of this method is the figure relating to the total domestic use of cereals. In the present case, Eurostat published on 21 July 1988, that is a year after the end of the 1986/87 marketing year, the figure of 5 141 000 tonnes which had been notified by the Hellenic authorities and which the Commission took as basis for the calculation which led to the contested financial adjustment. The amount of that adjustment was notified by letter of 10 February 1989 to the Hellenic authorities which, by a telex message of 17 April 1989, notified a new figure, namely 4 489 000 tonnes, that is 652 000 tonnes less than the first. The Commission refused to take it into account and on 15 November 1989 adopted the contested decision. On 6 December 1989, Eurostat published the amended figure.
| 0 |
861,457 |
26. It should be borne in mind at the outset that, as the German Government maintains, the exemptions envisaged in Article 13 of the Sixth Directive are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, inter alia, Case C‑2/95 SDC [1997] ECR I‑3017, paragraph 20; Case C‑141/00 Kügler [2002] ECR I‑6833, paragraph 28; and Case C‑45/01 Dornier [2003] ECR I‑12911, paragraph 42). However, the interpretation of the terms used in that provision must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT (see Kügler , paragraph 29, and Dornier , paragraph 42).
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21 The Italian Government contends that the only nationals upon whom the right in question is conferred are those who are both residents of the Province of Bolzano and members of its German-speaking community, the aim of the rules in issue being to recognise the ethnic and cultural identity of persons belonging to the protected minority. Accordingly, the right of that protected minority to the use of its own language need not be extended to nationals of other Member States who are present, occasionally and temporarily, in that region, since provision has been made to enable such persons to exercise the rights of the defence adequately, even where they have no knowledge of the official language of the host State.
| 0 |
861,458 |
51. The risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion (see, inter alia, Case C‑342/97 Lloyd Schuhfabrik Meyer [1999] ECR I‑3819, paragraph 17; Case C‑120/04 Medion [2005] ECR I‑8551, paragraph 26; and Case C‑102/07 adidas and adidas Benelux [2008] ECR I‑2439, paragraph 28).
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43. Indeed, the objective of sustaining and developing viable agriculture on the basis of social and land planning considerations entails keeping land intended for agriculture in such use and continuing to make use of it under appropriate conditions. In that context, prior supervision by the competent authorities does not merely reflect a need for information but is intended to ensure that the transfer of agricultural land will not lead to their ceasing to be used as intended or to a use which might be incompatible with their long-term agricultural use.
| 0 |
861,459 |
28. On the other hand, where a plant protection product covered by marketing authorisation granted in accordance with the provisions of the Directive in one Member State is imported into another Member State as a parallel import of a plant protection product already covered by marketing authorisation in the Member State of importation, the provisions of the Directive on the procedure for the issue of marketing authorisation do not apply (see, in relation to pharmaceutical products, Case C‑201/94 Smith & Nephew and Primecrown [1996] ECR I‑5819, paragraph 21, and, in relation to plant protection products, British Agrochemicals Association , paragraph 31). None the less, such a situation falls within the scope of the provisions of the EC Treaty on the free movement of goods.
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35. The findings of the Court of First Instance in paragraphs 39 to 42 of the judgment under appeal that, first, the level of attention paid by the average consumer to the shape and colour of confectionery is not high, and, second, that the three-dimensional shape of the mark applied for is a basic geometric shape are findings of fact (see, to that effect, Henkel v OHIM , paragraph 56, and Deutsche SiSi-Werke v OHIM , paragraph 47, respectively).
| 0 |
861,460 |
87. In this respect, the Court has had occasion to rule that the exception in the first paragraph of Article 45 EC does not extend to certain activities that are auxiliary or preparatory to the exercise of official authority (see, to that effect, Thijssen , paragraph 22; Commission v Spain , paragraph 38; Servizi Ausiliari Dottori Commercialisti , paragraph 47; Commission v Germany , paragraph 38; and Commission v Portugal , paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, Reyners , paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, Thijssen , paragraphs 21 and 22; Case C‑393/05 Commission v Austria , paragraphs 36 and 42; Commission v Germany , paragraphs 38 and 44; and Commission v Portugal , paragraphs 36 and 41), powers of constraint (see, to that effect, inter alia, Commission v Spain , paragraph 37) or powers of coercion (see, to that effect, Case C‑47/02 Anker and Others [2003] ECR I‑10447, paragraph 61, and Commission v Portugal , paragraph 44).
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10 IT FOLLOWS THAT IS ONLY AS REGARDS THE QUELLMEHL USED FOR BREAD-MAKING THAT THE ABOLITION OF THE PRODUCTION REFUNDS FOR QUELLMEHL WAS INCOMPATIBLE WITH THE PRINCIPLE OF EQUALITY FOR THE REASONS ACCEPTED BY THE COURT IN ITS JUDGMENT OF 19 OCTOBER 1977 .
| 0 |
861,461 |
23 Article 234 of the Treaty is of general scope and applies to any international agreement, irrespective of subject-matter, which is capable of affecting application of the Treaty (Case 812/79 Attorney General v Burgoa [1980] ECR 2787, paragraph 6; Case C-158/91 Levy [1993] ECR I-4287, paragraph 11; Case C-62/98 Commission v Portugal [2000] ECR I-5171, paragraph 43).
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64 In that regard, it need merely be pointed out that, as is clear from the objective of the Regulation and from the considerations set out in paragraphs 57 to 59 of this judgment, a prohibition on the use and marketing of HCFCs which is designed to protect the ozone layer cannot be regarded as disproportionate to the aim pursued.
| 0 |
861,462 |
27. À ces fins, la Cour peut extraire de l’ensemble des éléments fournis par la juridiction nationale, et notamment de la motivation de la décision de renvoi, les normes et les principes du droit de l’Union qui appellent une interprétation compte tenu de l’objet du litige au principal (voir en ce sens, notamment, arrêts du 29 novembre 1978, Redmond, 83/78, Rec. p. 2347, point 26; du 23 octobre 2003, Inizan, C‑56/01, Rec. p. I‑12403, point 34, et Byankov, précité, point 58). En vue de fournir à la juridiction qui lui a adressé une question préjudicielle une réponse utile, la Cour peut ainsi être amenée à prendre en considération des normes du droit de l’Union auxquelles le juge national n’a pas fait référence dans l’énoncé de sa question (arrêts du 27 mars 1990, Bagli Pennacchiotti, C‑315/88, Rec. p. I‑1323, point 10, et du 3 avril 2008, Militzer & Münch, C‑230/06, Rec. p. I‑1895, point 19).
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59. Ainsi, s’agissant de la directive 2000/78, la Cour a jugé, au point 54 de l’arrêt HK Danmark, précité, que ladite notion devait être entendue comme visant l’élimination des diverses barrières qui entravent la pleine et effective participation des personnes handicapées à la vie professionnelle sur la base de l’égalité avec les autres travailleurs.
| 0 |
861,463 |
49. In that connection, it must be recalled that the Court has already held, as regards the general principle of equal treatment in the context of grounds such as age or sex, that a difference of treatment which is based on a characteristic related to such grounds does not constitute discrimination — that is to say, an infringement of Article 21(1) of the Charter — where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate (see, to that effect, as regards discrimination on grounds of age, Case C‑229/08 Wolf EU:C:2010:3, paragraph 35, and Case C‑447/09 Prigge and Others EU:C:2011:573, paragraph 66; and, as regards discrimination based on sex, Case 222/84 Johnston EU:C:1986:206, paragraph 40, and Case C‑273/97 Sirdar EU:C:1999:523, paragraph 25).
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29 The Edinburgh Decision must thus be interpreted as defining the seat of the Parliament as the place where 12 ordinary plenary part-sessions must take place on a regular basis, including those during which the Parliament is to exercise the budgetary powers conferred upon it by the Treaty. Additional plenary part-sessions cannot therefore be scheduled for any other place of work unless the Parliament holds the 12 ordinary plenary part-sessions in Strasbourg, where it has its seat.
| 0 |
861,464 |
26. Article 51(1) of the Charter confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (see judgments in Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraph 19, and Torralbo Marcos , C‑265/13, EU:C:2014:187, paragraph 29).
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62. The Commission observes that the appellant’s argument that the Court of First Instance assumed the existence of motives unfavourable to SGL Carbon is irrelevant. When setting fines, the Commission has a wide discretion without being bound by a precise mathematical formula.
| 0 |
861,465 |
156. According to settled case-law, an infringement of Article 81(1) EC can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (judgment in Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited).
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50. To exclude group relief for losses incurred by non-resident subsidiaries prevents such practices, which may be inspired by the realisation that the rates of taxation applied in the various Member States vary significantly.
| 0 |
861,466 |
37. The situation at issue in the main proceedings must be distinguished from that in which articles of precious metal are hallmarked by the producers themselves in the Member State of exportation. That latter situation is likely to result in fraud against which, there being no European Union rules, it is for the Member States, who have a wide discretion, to take the measures they consider appropriate for that purpose (see, to that effect, Houtwipper , paragraphs 20 to 22).
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43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC.
| 0 |
861,467 |
26. The Court has already held that the application of a national rule intended to prevent abuse must not prejudice the full effect and uniform application of European Union law in the Member States ( Walcher , paragraph 37).
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21. À cet égard, il convient de rappeler que le but de la procédure précontentieuse est de donner à l’État membre la possibilité de se conformer aux obligations découlant pour lui du droit de l’Union ou de faire utilement valoir ses moyens de défense à l’encontre des griefs formulés par la Commission. La régularité de la procédure précontentieuse constitue une garantie essentielle non seulement pour la protection des droits de l’État membre en cause, mais également pour assurer que la procédure contentieuse éventuelle aura pour objet un litige clairement défini (voir en ce sens, notamment, arrêt du 13 décembre 2001, Commission/France, C‑1/00, Rec. p. I‑9989, point 53).
| 0 |
861,468 |
78. It must be borne in mind that, in accordance with settled case-law (see, in particular, Case 8/81 Becker [1982] ECR 53, paragraph 25; Case C-193/91 Mohsche [1993] ECR I-2615, paragraph 17; Case C-134/99 IGI [2000] ECR I-7717, paragraph 36; and Kügler , cited above, paragraph 51), wherever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State.
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93. Consequently, where the imported goods are seized and simultaneously or subsequently destroyed by the competent authorities before going beyond the first customs office situated inside the customs territory of the Community, it must be found that neither the chargeable event for VAT has occurred nor has that VAT become chargeable for the purposes of that article. That appears to be the situation in the two cases in the main proceedings in which the goods were transported by sea.
| 0 |
861,469 |
25. After judgment was delivered in Metock and Others (C‑127/08, EU:C:2008:449) and in accordance with Directive 2004/38, Mr Njume was by decision of 3 December 2008 granted permission to reside in Ireland for five years as the spouse of a Union citizen residing and exercising rights under the FEU Treaty in Ireland. That permission to reside, which had retroactive effect from 11 October 2007, was accompanied by the issue of a residence card.
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46 Second, where the Commission enjoys substantial freedom of assessment, as it does when applying Article 87 EC, the Court, in reviewing whether that freedom was lawfully exercised, cannot substitute its own assessment for that of the competent authority but must restrict itself to examining whether that authority's assessment is vitiated by a manifest error or misuse of powers (see, in particular, Case C-169/95 Spain v Commission [1997] ECR I-135, paragraph 34, and Case C-288/96 Germany v Commission [2000] ECR I-8237, paragraph 26).
| 0 |
861,470 |
39. Union citizens in comparable situations to sponsor S and sponsor G fall within the scope of Article 45 TFEU. Any Union citizen who, under an employment contract, works in a Member State other than that of their place of residence falls within the scope of Article 45 TFEU (see, to that effect, Case C‑152/03 Ritter‑Coulais [2006] ECR I‑1711, paragraph 31; Case C‑212/05 Hartmann [2007] ECR I‑6303, paragraph 17; and Case C‑202/11 Las [2013] ECR, paragraph 17).
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46. En revanche, il est notoire que, dans l’Union, l’espèce chevaline se trouve dans une situation différente de celle des espèces citées au point précédent. En effet, ainsi que l’a souligné la Commission, les chevaux ne sont pas, à titre habituel et de manière générale, destinés à être utilisés dans la préparation des denrées alimentaires, même si certains d’entre eux serviront effectivement pour la consommation humaine ou animale.
| 0 |
861,471 |
31. It is clear that Ms Schulz-Delzers left France in order to reside in Germany and her status as worker within the meaning of Article 39 EC is not in dispute. Thus, it is in the light only of Article 39 EC that it is necessary to examine the questions referred (see, to that effect, inter alia, Leyman , paragraphs 18 to 20 and case-law cited).
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13 AS THE COURT HAS REPEATEDLY HELD , THE DECISIVE CRITERION FOR THE CLASSIFICATION OF GOODS FOR CUSTOMS PURPOSES IS IN GENERAL TO BE SOUGHT IN THEIR CHARACTERISTICS AND OBJECTIVE PROPERTIES AS DEFINED IN THE WORDING OF THE RELEVANT HEADING OF THE COMMON CUSTOMS TARIFF AND OF THE NOTES TO THE SECTIONS OR CHAPTERS .
| 0 |
861,472 |
30. With regard to companies, it should be noted that it is their registered office, central administration or principal place of business, within the meaning of Article 48 EC, that serves as the connecting factor with the legal system of a particular Member State, like nationality in the case of natural persons. To accept that the Member State of establishment may freely apply different treatment solely because the registered office, central administration or principal place of business of a company is situated in another Member State would deprive Article 43 EC of its substance (see, to that effect, Case 270/83 Commission v France [1986] ECR 273, paragraph 18; Case C-330/91 Commerzbank [1993] ECR I-4017, paragraph 13; Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 42; Marks & Spencer , paragraph 37; and Test Claimants in Class IV of the ACT Group Litigation , paragraph 43). Freedom of establishment is thus designed to guarantee the benefit of national treatment in the host Member State, by prohibiting all discrimination based on the place where the registered office, central administration or principal place of business of a company is situated ( Commission v France , paragraph 14; Saint-Gobain ZN , paragraph 35; and Test Claimants in Class IV of the ACT Group Litigation , paragraph 43).
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42 Freedom of establishment thus defined includes, pursuant to Article 58 of the Treaty, the right of companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community, to pursue their activities in the Member State concerned through a branch or agency (Case C-264/96 ICI [1998] ECR I-4695, paragraph 20, and the case-law cited therein, and Case C-307/97 Saint-Gobain ZN [1999] ECR I-6161, paragraph 34). With regard to companies, it should be noted in this context that it is their corporate seat in the above sense that serves as the connecting factor with the legal system of a particular State, like nationality in the case of natural persons (ICI, cited above, paragraph 20, and the case-law cited therein, and Saint-Gobain ZN, cited above, paragraph 35). Acceptance of the proposition that the Member State in which a company seeks to establish itself may freely apply to it a different treatment solely by reason of the fact that its registered office is situated in another Member State would thus deprive Article 52 of all meaning (Commission v France, cited above, paragraph 18).
| 1 |
861,473 |
52
As is apparent from the answer to the first two questions, the decision of a Member State to extradite a Union citizen, in a situation such as that of the main proceedings, comes within the scope of Article 18 TFEU and Article 21 TFEU and, therefore, of EU law for the purposes of Article 51(1) of the Charter (see, to that effect, by analogy, judgment of 26 February 2013 in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 25 to 27).
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27. Elle concerne les emplois qui comportent une participation, directe ou indirecte, à l’exercice de la puissance publique et aux fonctions qui ont pour objet la sauvegarde des intérêts généraux de l’État ou des autres collectivités publiques, et supposent ainsi, de la part de leurs titulaires, l’existence d’un rapport particulier de solidarité à l’égard de l’État ainsi que la réciprocité des droits et devoirs qui sont le fondement du lien de nationalité (voir arrêt Colegio de Oficiales de la Marina Mercante Española, précité, point 39 et jurisprudence citée).
| 0 |
861,474 |
15. Where, however, a transaction comprises several elements, the question arises whether it is to be regarded as consisting of a single supply or of several distinct and independent supplies which must be assessed separately from the point of view of VAT. According to the Court’s case-law, in certain circumstances several formally distinct services, which could be supplied separately and thus give rise, in turn, to taxation or exemption, must be considered to be a single transaction when they are not independent (Case C-425/06 Part Service [2008] ECR I-897, paragraph 51).
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74 Since no such information is available, it has not been proved that the Hellenic Republic has failed fully to comply with the obligation to dispose of toxic and dangerous waste from the area of Chania in accordance with Article 5 of Directive 78/319.
| 0 |
861,475 |
30 The first paragraph of Article 59 of the Treaty prohibits restrictions on freedom to provide services within the Community in general. Consequently, that provision covers not only restrictions laid down by the State of destination but also those laid down by the State of origin. As the Court has frequently held, the right freely to provide services may be relied on by an undertaking as against the State in which it is established if the services are provided for persons established in another Member State (see Case C-18/93 Corsica Ferries Italia v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783, paragraph 30; Peralta, cited above, paragraph 40, and Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 14).
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23 Those companies argue in the alternative that Article 47(5) of the 1990 Law constitutes a provision more favourable to employees, within the meaning of Article 7 of the directive. They maintain that Article 47(5) of the 1990 Law encourages the transfer of undertakings and limits dismissals, thereby preserving employees' jobs in accordance with the objectives of the directive.
| 0 |
861,476 |
16. As a preliminary point, it should be observed that it is settled case-law that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in a case is a matter for the national court (see, inter alia, Case C‑235/95 Dumon and Froment [1998] ECR I‑4531, paragraph 25; Case C-13/05 Chacón Navas [2006] ECR I‑6467, paragraph 32, and Case C‑251/06 ING. AUER [2007] ECR I-0000, paragraph 19).
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Il convient de rappeler que, selon une jurisprudence constante, la motivation de l’arrêt attaqué doit faire apparaître de façon claire et non équivoque le raisonnement du Tribunal, de manière à permettre aux intéressés de connaître les justifications de la décision prise et à la Cour d’exercer son contrôle juridictionnel (voir, notamment, arrêt du 26 mai 2016, Rose Vision/Commission, C‑224/15 P, EU:C:2016:358, point 24 et jurisprudence citée).
| 0 |
861,477 |
49. Furthermore, it is necessary to recall that, according to settled case-law of the Court, the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts (see, in particular, Case C-382/92 Commission v United Kingdom [1994] ECR I-2435, paragraph 36 and Case C-300/95 Commission v United Kingdom [1997] ECR I-2649, paragraph 37).
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43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC.
| 0 |
861,478 |
21 Article 51 of the Treaty entrusted the Council with the task of adopting such measures in the field of social security as are necessary to provide freedom of movement for workers. The provisions of Regulation No 1408/71 must therefore be interpreted in the light of that objective (see, in particular, the judgment in Case C-406/93 Reichling v INAMI [1994] ECR I-4061, paragraph 21).
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39. A Member State may therefore take the view, in the exercise of its discretion referred to in paragraph 19 of the present judgment, that, unlike the case of a pharmacy operated by a pharmacist, the operation of a pharmacy by a non-pharmacist may represent a risk to public health, in particular to the reliability and quality of the supply of medicinal products at retail level, because the pursuit of profit in the course of such operation does not involve moderating factors such as those, noted in paragraph 37 of the present judgment, which characterise the activity of pharmacists (see by analogy, with regard to the provision of social welfare services, Case C-70/95 Sodemare and Others [1997] ECR I‑3395, paragraph 32).
| 0 |
861,479 |
34. In that regard, it should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. The presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment in FOA , C‑354/13, EU:C:2014:2463, paragraph 45 and the case-law cited).
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15 However, as is pointed out in the experts' report, contrary to the applicants' claim, tariff F is a public tariff whose conditions of availability are public and perfectly open, by contrast with the previous system, which was embodied in contracts entered into direct between Gasunie and Netherlands ammonia producers . Secondly, like tariff E, tariff F is also applicable to individual plants . Finally, like tariffs A to E, tariff F is available to all customers who fulfil the objective conditions prescribed for its application .
| 0 |
861,480 |
58. In this connection, it is true that preventing possible tax evasion, avoidance and abuse is an objective recognised and encouraged by Directive 2006/112 and European Union law cannot be relied on for fraudulent or abusive ends (see, inter alia, Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraphs 68 and 71; Joined Cases C-80/11 and C-142/11 Mahagében and Dávid [2012] ECR, paragraph 41; and Bonik , paragraphs 35 and 36).
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8ALTHOUGH IN GENERAL THE PRINCIPLE OF LEGAL CERTAINTY PRECLUDES A COMMUNITY MEASURE FROM TAKING EFFECT FROM A POINT IN TIME BEFORE ITS PUBLICATION , IT MAY EXCEPTIONALLY BE OTHERWISE WHERE THE PURPOSE TO BE ACHIEVED SO DEMANDS AND WHERE THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED ARE DULY RESPECTED .
AS REGARDS MONETARY COMPENSATORY AMOUNTS IN PARTICULAR THE SYSTEM INTRODUCED BY REGULATION NO 974/71 IMPLIES IN PRINCIPLE THAT THE MEASURES ADOPTED TAKE EFFECT AS FROM THE OCCURRENCE OF THE EVENTS WHICH GIVE RISE TO THEM , SO THAT IN ORDER TO MAKE THEM FULLY EFFECTIVE IT MAY BE NECESSARY TO PROVIDE FOR THE APPLICABILITY OF NEWLY-FIXED MONETARY COMPENSATORY AMOUNTS TO FACTS AND EVENTS WHICH OCCURRED SHORTLY BEFORE THE PUBLICATION OF THE REGULATION FIXING THEM IN THE OFFICIAL JOURNAL .
IT IS INHERENT IN THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS THAT TRADERS MUST EXPECT ANY APPRECIABLE CHANGE IN THE MONETARY SITUATION POSSIBLY TO ENTAIL THE EXTENSION OF THE SYSTEM TO NEW CATEGORIES OF GOODS AND THE FIXING OF NEW AMOUNTS .
IN THIS CASE ON THE DATE LAID DOWN FOR THE APPLICABILITY OF THE NEW AMOUNTS , THE COMMISSION ADOPTED SPECIAL MEASURES FOR THEM TO BE BROUGHT TO THE ATTENTION OF THE VARIOUS SECTORS OF INDUSTRY CONCERNED .
THE APPLICABILITY OF REGULATION NO 649/73 TO EVENTS OCCURRING AS FROM 26 FEBRUARY 1973 , THAT IS TO SAY DURING A PERIOD OF TWO WEEKS BEFORE ITS ACTUAL PUBLICATION , WAS THEREFORE NOT SUCH AS TO JEOPARDIZE EXPECTATIONS DESERVING PROTECTION .
IN THE LIGHT OF THIS FINDING IN RELATION TO REGULATION NO 649/73 , AND HAVING REGARD TO THE EXTRAORDINARY SITUATION PREVAILING AT THE TIME , NO OVERRIDING CONSIDERATION PERTAINING TO LEGAL CERTAINTY PREVENTS REGULATION NO 741/73 , ADOPTED ON 5 MARCH 1973 , FROM ALTERING THE MONETARY COMPENSATORY AMOUNTS RESULTING FROM THE AFOREMENTIONED REGULATION FROM BEING GIVEN EFFECT AS FROM 5 MARCH 1973 , NOTWITHSTANDING THE FACT THAT REGULATION NO 649/73 HAD NOT YET BEEN PUBLISHED IN THE OFFICIAL JOURNAL .
| 0 |
861,481 |
90
Furthermore, a provision of that kind would be rendered redundant if the Member States were able to retain their own systems of protection for designations of origin and geographical indications for the purposes of Regulations No 1234/2007 and No 479/2008 and have them coexist with that resulting from those regulations (see, by analogy, judgment of 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraph 120).
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72. The fact remains that the dispute before the referring court relates exclusively to the effect of the national legislation at issue in the main proceedings on the situation of a resident company which has distributed dividends to shareholders whose holding gives them definite influence over the decisions of that company and enables them to determine its activities (see, to that effect, Test Claimants in the FII Group Litigation , paragraph 38).
| 0 |
861,482 |
18. The prohibition on measures having an effect equivalent to restrictions set out in Article 28 EC covers all commercial rules enacted by the Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see, in particular, Case 8/74 Dassonville [1974] ECR 837, paragraph 5; Case 178/84 Commission v Germany [1987) ECR 1227 ( " Beer purity law " ), paragraph 27; and Case C-12/00 Commission v Spain [2003] ECR I-459, paragraph 71).
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71. The Court has consistently held that Article 30 of the Treaty aims to prohibit all rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (Case 8/74 Dassonville [1974] ECR 837, paragraph 5).
| 1 |
861,483 |
93. The Court has thus recognised that it is compatible with EU law to lay down reasonable time-limits for bringing proceedings, on pain of the action being time-barred, in the interests of legal certainty, since such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU law. As regards such time-limits, the Court has also held that, in respect of national legislation which falls within the scope of EU law, it is for the Member States to establish those time-limits in the light, inter alia, of the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration ( Bulicke , paragraph 36, and the order in Berkizi-Nikolakaki , paragraph 49)
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54. Il y a lieu de constater que l’instauration d’une pratique nationale, telle que la présomption de conformité en cause en l’espèce, introduite par l’État membre et exécutée avec son concours a également, au moins potentiellement, un effet sur les importations de produits de construction en cause, en provenance des autres États membres, comparable à celui résultant d’actes gouvernementaux à caractère obligatoire (voir, en ce sens, arrêt Commission/Irlande, précité, point 27).
| 0 |
861,484 |
75. Identification of one of the linking factors recognised by the case-law set out in paragraph 72 above must therefore make it possible to establish the jurisdiction of the court objectively best placed to determine whether the elements that constitute liability do in fact exist, so that only the court within whose jurisdiction the relevant linking factor is situated may validly be seised (judgment in CDC Hydrogen Peroxide , C‑352/13, EU:C:2015:335, paragraph 41 and the case-law cited).
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11 BUT FOR THIS EXCEPTION, AN UNDERTAKING ESTABLISHED IN THE TERRITORY OF A MEMBER STATE WOULD BE REQUIRED TO REGISTER ITS WORKERS, NORMALLY SUBJECT TO THE SOCIAL SECURITY LEGISLATION OF THAT STATE, WITH THE SOCIAL SECURITY SYSTEM OF OTHER MEMBER STATES WHERE THEY WERE SENT TO PERFORM WORK OF SHORT DURATION .
| 0 |
861,485 |
38. It should in this regard be borne in mind that, although the desire to avoid disturbances on the labour market is undoubtedly an overriding reason of general interest (see, to that effect, Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 13), workers employed by an undertaking established in a Member State and who are deployed to another Member State for the purposes of providing services there do not purport to gain access to the labour market of that second State, as they return to their country of origin or residence after the completion of their work (see Rush Portuguesa , paragraph 15; Vander Elst , paragraph 21; and Finalarte , paragraph 22).
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60
Thus, such penalties must not go beyond what is necessary to attain the objectives of ensuring the correct levying and collection of the tax and preventing fraud. In order to assess whether a penalty is consistent with the principle of proportionality, account must be taken inter alia of the nature and the degree of seriousness of the infringement which the penalty seeks to sanction, and of the means of establishing the amount of the penalty (see, to that effect, judgments of 8 May 2008, Ecotrade, C‑95/07 and C‑96/07, EU:C:2008:267, paragraphs 65 to 67, and of 20 June 2013, Rodopi-M 91, C‑259/12, EU:C:2013:414, paragraph 38).
| 0 |
861,486 |
48 Next, it must be borne in mind that the Commission has been given a wide discretion in the application of Article 109 of the OCT Decision. In cases involving such a discretion, the Court of First Instance must restrict itself to considering whether the exercise of that discretion contains a manifest error or constitutes a misuse of power or whether the Commission clearly exceeded the bounds of its discretion (Piraiki-Patraiki, paragraph 40).
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2. This reference has been made in the course of proceedings between Mr Ioannidis and the Office national de l’emploi (National Employment Office, hereinafter ‘ONEM’) regarding the latter’s decision to refuse to grant the respondent the tideover allowance provided for under Belgian law.
Law
Community law
| 0 |
861,487 |
78. In accordance with the case‑law of the Court, the apprehension of internal difficulties cannot justify a failure by a Member State to comply with its obligations under Community law (see, inter alia, Case C‑404/97 Commission v Portugal [2000] ECR I‑4897, paragraph 52; Case C‑310/99 Italy v Commission , cited above, paragraph 105, and Case C‑404/00 Commission v Spain [2003] ECR I‑6695, paragraph 55).
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41. Contrary to the Hellenic Republic’s assertion, the fact that, in such cases of intensive use of a vehicle, it is open to the owner to challenge the application of the fixed scale is not sufficient to prevent a system of taxation from contravening Article 90 EC.
| 0 |
861,488 |
46. Thus, although the Court has accepted that Member States are free to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, it has nevertheless made clear that Member States are not entitled to make the very existence of that right, which derives directly from Directive 93/104, subject to any preconditions whatsoever (see, to that effect, BECTU , paragraph 53).
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16 Heading 99.02 of the Common Customs Tariff provides for an exemption from customs duties for the goods referred to therein with the evident intention of giving favourable treatment to artistic production .
| 0 |
861,489 |
37
In that regard, it should be recalled that the requirement for a body making a reference to be independent is comprised of two aspects. The first, external, aspect presumes that the court exercises its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever (see judgments of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 22, and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 19), and is thus protected against external interventions or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them (see judgments of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 51; of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 30; and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 19).
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19
The scope of that obligation to declare is determined on the basis of the interpretation to be given to the notion of a ‘natural person entering or leaving’ the European Union, referred to in Article 3(1).
| 0 |
861,490 |
43
Lastly, that authority must take account of Article 6 of the Charter of Fundamental Rights of the European Union, in so far as Article 28(2) of the Dublin III Regulation provides for a limitation on the exercise of the fundamental rights to liberty and security (see, to that effect, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 49, and of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraph 36).
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140 In the present case, the arguments put forward in support of the view that the trade agreements provided for specific supply obligations, arguments which moreover are essentially identical to those submitted before the Court of First Instance, do not reveal the existence of a manifest substantive error in the findings of fact made by the Court of First Instance in that connection.
| 0 |
861,491 |
37
Thus, an action for annulment is, in principle, only available against a measure by which the institution concerned definitively determines its position upon the conclusion of an administrative procedure. On the other hand, intermediate measures whose purpose is to prepare for the definitive decision, or measures which are mere confirmation of an earlier measure or purely implementing measures, cannot be treated as acts open to challenge, in that such acts are not intended to produce autonomous binding legal effects compared with those of the act of the EU institution which is prepared, confirmed or enforced (see, to that effect, in particular, judgments of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 55; of 6 December 2007, Commission v Ferriere Nord, C‑516/06 P, EU:C:2007:763, paragraph 29; and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).
|
27 Additional evidence may thus be required where there is suspicion or proof that abuses have been committed.
| 0 |
861,492 |
30. It must be noted at the outset that, although a Member State may designate itself as the entity liable to meet claims for remuneration guaranteed under Directive 2008/94 (see, to that effect, Case C‑441/99 Gharehveran EU:C:2001:551, paragraph 39), the Kingdom of Spain established Fogasa as the guarantee institution in accordance with that directive. It is clear from the case-file before the Court that, in accordance with Article 33 of the Workers’ Statute, Fogasa paid to the applicants in the main proceedings, within the statutory limits, inter alia, the remuneration which had become due during proceedings challenging their dismissals and the compensation for dismissal which had not been paid by their insolvent employers. It is also apparent from that case-file that those payments made by Fogasa discharged the obligation, imposed by Directive 2008/94, to provide minimum protection for employees in the event of the employer’s insolvency; this, however, is a matter which the referring court must verify.
|
41. It is important to note that, according to the case-law of the Court, in the context of consideration of the likelihood of confusion, assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see order in Matratzen Concord v OHIM , paragraph 32; Medion , paragraph 29).
| 0 |
861,493 |
54. It should also be observed that the priority nature of an interlocutory procedure for the review of the constitutionality of a national law, the content of which merely transposes the mandatory provisions of a European Union directive, cannot undermine the jurisdiction of the Court of Justice alone to declare an act of the European Union invalid, and in particular a directive, the purpose of that jurisdiction being to guarantee legal certainty by ensuring that EU law is applied uniformly (see, to that effect, Case 314/85 Foto‑Frost [1987] ECR 4199, paragraphs 15 to 20; Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 27; and Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 53).
|
20
In that regard, it should be recalled that, in accordance with the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, judgment of 6 July 2017, Air Berlin, C‑290/16, EU:C:2017:523, paragraph 22 and the case-law cited) and, in the circumstances of this case, the history of that legislation (judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 30).
| 0 |
861,494 |
59. The Court has repeatedly stated that, as is clear from its preamble, Directive 87/102 was adopted with the dual aim of ensuring both the creation of a common consumer credit market (third to fifth recitals) and the protection of consumers who avail themselves of such credit (sixth, seventh and ninth recitals) (Case C-208/98 Berliner Kindl Brauerei [2000] ECR I-1741, paragraph 20, and Case C-264/02 Cofinoga [2004] ECR I-2157, paragraph 25).
|
35. The arguments put forward by the municipality of Roanne and the French and Polish Governments cannot be accepted.
| 0 |
861,495 |
60
As regards the measure laid down in Article 1(78)(b), subsection 23, of Law No 220/2010, namely, the imposing of sanctions in the form of penalties, in the case of breach of contractual clauses which may be attributed to the concession holder, including in the event of an involuntary breach, it should be noted that penalties are not compatible with EU law if the conditions determining their application are themselves contrary to EU law (see, to that effect, judgment of 6 March 2007, Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 69). The penalties must not go beyond what is strictly necessary for the objectives pursued and a penalty must not be so disproportionate to the gravity of the infringement that it becomes an obstacle to the freedoms enshrined in the Treaty (see, to that effect, judgment of 5 July 2007, Ntionik and Pikoulas, C‑430/05, EU:C:2007:410 paragraph 54).
|
38. As the Advocate General pointed out in paragraphs 47 and 48 of his Opinion, since the possibility of obtaining a deduction for tax purposes can have a significant influence on the donor’s attitude, the inability in Germany to deduct gifts to bodies recognised as charitable if they are established in other Member States is likely to affect the willingness of German taxpayers to make gifts for their benefit.
| 0 |
861,496 |
55 As the Court pointed out in paragraph 8 of its judgment in Commission v Italy, while Articles 92 and 93 of the Treaty, on the one hand, and Article 95 of the Treaty, on the other, pursue the same objective, namely to ensure that the two categories of intervention on the part of a Member State, that is to say, the grant of aid, on the one hand, and the imposition of discriminatory taxation, on the other, do not distort the conditions of competition within the common market, the application of those provisions presupposes distinct conditions peculiar to the two kinds of State measure which they are intended to govern and they differ, furthermore, as to their legal consequences, particularly inasmuch as in the implementation of Articles 92 and 93, unlike Article 95, the intervention of the Commission plays a large part. From this the Court concluded that discriminatory taxation practices are not exempted from the application of Article 95 by reason of the fact that they may at the same time be described as a means of financing State aid (see Commission v Italy, paragraph 9, and Case 17/81 Pabst & Richarz [1982] ECR 1331, paragraph 22).
|
21. In fact, it is apparent from that memorandum that the pharmaceutical form of the medicinal product, to which an excipient may contribute, as noted by the Advocate General in point 11 of his Opinion and the French Government at the hearing, does not form part of the definition of ‘product’, which is understood to mean an ‘active substance’ or ‘active ingredient’ in the strict sense.
| 0 |
861,497 |
30
By its question, the referring court asks, in essence, whether, in the light of the principles defined by the Court in the judgment of 24 October 1996, Elida Gibbs (C‑317/94, EU:C:1996:400, paragraphs 28 and 31), regarding the determination of the taxable amount for VAT and having regard to the principle of equal treatment under EU law, Article 90(1) of the VAT Directive must be interpreted as meaning that the discount granted, in accordance with national law, by a pharmaceutical company to a private health insurance company results, for the purposes of that article, in a reduction of the taxable amount in favour of that pharmaceutical company, when it supplies medicinal products via wholesalers to pharmacies which make supplies to persons covered by private health insurance that reimburses the purchase price of the medicinal products to persons it insures.
|
43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC.
| 0 |
861,498 |
37
In the absence of relevant EU rules, the detailed rules for implementing such measures, which are a matter for the domestic legal order of the Member States under the principle of their procedural autonomy, must not, however, be less favourable than those governing similar domestic situations (principle of equivalence) or render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 95; of 7 September 2006, Vassallo, C‑180/04, EU:C:2006:518, paragraph 37; of 3 July 2014, Fiamingo and Others, C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 63, and order of 11 December 2014, León Medialdea, C‑86/14, not published, EU:C:2014:2447, paragraph 45).
|
38 That argument cannot be accepted.
| 0 |
861,499 |
47
However, a trader may not place reliance on there being no legislative amendment whatever, but can call into question only the arrangements for the implementation of such an amendment (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 78 and the case-law cited).
|
43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC.
| 0 |
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