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36. In that regard, firstly, it should be noted that, according to settled case-law, medical services provided for consideration fall within the scope of the provisions on the freedom to provide services, including situations where care is provided in a hospital environment (see, to that effect, Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 86 and the case-law cited, and Case C‑211/08 Commission v Spain [2010] ECR I‑0000, paragraph 47 and the case-law cited).
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44. In those circumstances, in order to classify a transaction as an intra-Community acquisition, it is necessary to conduct an overall assessment of all the relevant objective evidence in order to determine whether the goods purchased have actually left the territory of the Member State of supply and, if so, in which Member State the final consumption will take place.
| 0 |
861,801 |
24 A duty of the kind described by the national court is not a general tax since it is not intended to apply to all economic transactions in the Member State concerned (see, to this effect, Solisnor-Estaleiros Navais, paragraph 17, and Case C-208/91 Beaulande v Directeur des Services Fiscaux, Nantes [1992] ECR I-6709, paragraph 16). According to Paragraph 14.1.8 of the FAG, Paragraph 1 of the Wiener GStV and Paragraph 1 of the Oö GStG, the duty applies only to a limited category of goods, being levied only on the supply for consideration of ice cream (including fruits processed therein or added thereto) and of beverages, in each case including the containers and accessories sold with the products.
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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 |
861,802 |
103. According to settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgment in Ivansson and Others , C‑307/13, EU:C:2014:2058, paragraph 40).
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40. It is therefore appropriate to recall that, in accordance with settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see, to that effect, judgment in Kurcums Metal , C‑558/11, EU:C:2012:721, paragraph 48 and the case-law cited).
| 1 |
861,803 |
60. From that perspective, it must be held, as the Advocate General noted in point 83 of her Opinion, that the extent of the obligation to give reasons may vary according to the nature of the decision and must be examined, in the light of the proceedings taken as a whole and all the relevant circumstances, taking account of the procedural guarantees surrounding that decision, in order to ascertain whether the latter ensure that the persons concerned have the possibility to bring an appropriate and effective appeal against that decision (see, to that effect, Case C-341/04 Eurofood IFSC [2006] ECR I-3813, paragraph 66, and Gambazzi , paragraphs 40, 45 and 46).
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19. In that respect, the reference date for assessing whether there has been a failure to fulfil obligations under Article 260(1) TFEU is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see judgment of 11 December 2012 in Case C‑610/10 Commission v Spain [2012] ECR I‑0000, paragraph 67).
| 0 |
861,804 |
29. The Court has thus held that, where the language of a new Member State is an official language of the European Union, Article 58 of the 2003 Act of Accession precludes obligations laid down in EU legislation which has not been published, in that language, in the Official Journal of the European Union from being imposed on individuals in that State, even though those persons could have acquainted themselves with that legislation by other means (see, to that effect, Skoma-Lux , paragraph 51, and Balbiino , paragraph 30).
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83. Cette jurisprudence est fondée notamment sur la considération selon laquelle, en l’absence d’incidence sur la solution du litige du non-respect d’un délai de jugement raisonnable, l’annulation de l’arrêt attaqué ne remédierait pas à la violation, par le Tribunal, du principe de protection juridictionnelle effective (arrêt Der Grüne Punkt – Duales System Deutschland/Commission, précité, point 193).
| 0 |
861,805 |
43
It is necessary, for that purpose, to take into account both the objective of the rules of which Article 54 of the CISA forms part and the context in which it occurs (see, to that effect, judgment of 16 October 2014 in Welmory, C‑605/12, EU:C:2014:2298, paragraph 41 and the case-law cited).
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41. It should be recalled that, when interpreting a provision of EU law, it is necessary to consider not only the wording of the provision but also the context in which it occurs and the objective pursued by the rules of which it forms part (judgment in ADV Allround , C‑218/10, EU:C:2012:35, paragraph 26 and the case-law cited).
| 1 |
861,806 |
42 It is clear from the foregoing that the only limitation in time on the possibility of relying on the direct effect of Article 119 of the Treaty in relation to membership of an occupational pension scheme of the kind at issue in the main proceedings and the subsequent payment of a pension is that resulting from Defrenne II.
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68 EVEN IN THE AREAS IN WHICH ARTICLE 119 HAS NO DIRECT EFFECT , THAT PROVISION CANNOT BE INTERPRETED AS RESERVING TO THE NATIONAL LEGISLATURE EXCLUSIVE POWER TO IMPLEMENT THE PRINCIPLE OF EQUAL PAY SINCE , TO THE EXTENT TO WHICH SUCH IMPLEMENTATION IS NECESSARY , IT MAY BE RELIEVED BY A COMBINATION OF COMMUNITY AND NATIONAL MEASURES .
THE TEMPORAL EFFECT OF THIS JUDGMENT
| 1 |
861,807 |
43
According to the case-law of the Court, Article 191(1) TFEU authorises the adoption of measures relating solely to certain specified aspects of the environment, provided that such measures contribute to the preservation, protection and improvement of the quality of the environment (see judgments of 14 July 1998, Safety Hi-Tech, C‑284/95, EU:C:1998:352, paragraph 45, and of 14 July 1998, Bettati, C‑341/95, EU:C:1998:353, paragraph 43).
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11 The possibility cannot be ruled out that the reason for the inclusion in a licensing agreement of a clause imposing an obligation to pay royalty may be unconnected with a patent . Such a clause may instead reflect a commercial assessment of the value to be attributed to the possibilities of exploitation granted by the licensing agreement . That is even more true where, as in the main proceedings, the obligation to pay royalty in respect of two devices, one being patented after the agreement was entered into and the other being complementary to the first, was embodied in a licensing agreement entered into before the patent was granted .
| 0 |
861,808 |
26 However, the measures which the Member States are required to take for the implementation of that provision must be consistent with the principle of proportionality (see, in particular, Verband Sozialer Wettbewerb v Clinique Laboratories and Estée Lauder, cited above, paragraph 16, and Case C-77/97 Unilever [1999] ECR I-431, paragraph 27).
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41. Next, it should be noted that Article 4 of Directive 2001/14 establishes a division of powers as between Member States and infrastructure managers with regard to charging schemes: the Member States are to establish a charging framework, while the determination and collection of the charge are tasks to be performed by the infrastructure manager.
| 0 |
861,809 |
39. Since the Parliament and the French Government submit in their respective pleadings that a large part of the appeal is inadmissible on the ground that the appellant merely reproduces his pleas in law to the Court of First Instance without indicating precisely the contested passages of the judgment under appeal or the legal arguments specifically advanced in support of the appeal, it should be noted that under Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1), first subparagraph, (c) of the Rules of Procedure of the Court of Justice, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance (Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraphs 34 and 35, and Case C-76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraphs 46 and 47).
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50. Or, il est de jurisprudence constante que la détermination de la signification et de la portée des termes pour lesquels le droit communautaire ne fournit aucune définition doit être établie conformément au sens habituel en langage courant de ceux-ci, tout en tenant compte du contexte dans lequel ils sont utilisés et des objectifs poursuivis par la réglementation dont ils font partie (voir en ce sens, notamment, arrêt du 10 mars 2005, easyCar, C‑336/03, Rec. p. I‑1947, point 21 et jurisprudence citée).
| 0 |
861,810 |
60. As regards the national rules adopted by the Member States in the area of VAT, the Court has held inter alia that the status of taxable person, once recognised, cannot, save in situations of fraud or abuse, be withdrawn from the taxpayer with retrospective effect, without infringing the principles of the protection of legitimate expectations and legal certainty, as that would retrospectively deprive the taxable person of the right to deduct VAT on the investment expenditure he had incurred (see, to that effect, Case C-400/98 Breitsohl [2000] ECR I‑4321, paragraphs 34 to 38).
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41. As the Advocate General stated at point 32 of his Opinion, it is necessary to define the scope to be accorded to the legitimate requirement of the balanced allocation of the power to impose taxes between the Member States. In particular, it must be noted that such a justification was accepted by the Court in the judgment in Marks & Spencer only in conjunction with two other grounds, based on the taking into account of tax losses twice and on tax avoidance (see, to that effect, Marks & Spencer , paragraphs 43 and 51).
| 0 |
861,811 |
131. With regard to pensions, it must be noted that, according to the settled case-law of the Court in relation to Article 119 of the Treaty, or, with effect from 1 May 1999, in relation to Article 141 EC, which concern the principle of equal treatment of men and women in relation to pay, the term ‘pay’ within the meaning of the second subparagraph of Article 141(2) EC covers pensions which depend on the employment relationship between worker and employer, excluding those deriving from a statutory scheme, to the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship than by considerations of social policy (see, in particular, Case 80/70 Defrenne [1971] ECR 445, paragraphs 7 and 8; Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, paragraphs 16 to 22; Case C‑262/88 Barber [1990] ECR I‑1889, paragraphs 22 to 28; and Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker [2003] ECR I‑12575, paragraphs 56 to 64).
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28. Even if there is no harmonisation in the field, such a restriction on the fundamental principle of freedom to provide services can be based only on rules justified by overriding requirements relating to the public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established (see, among others, Corsten , paragraph 35).
| 0 |
861,812 |
34. At the hearing before the Court, Dunamenti Erőmű submitted that, in paragraphs 78 and 79 of the judgment in OTP Bank (C‑672/13, EU:C:2015:185), the Court held that it is necessary to determine whether a State measure constitutes State aid, before examining whether that aid is to be classified as new aid or existing aid.
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38. Il résulte de ces considérations qu’il n’y a pas lieu de limiter dans le temps les effets du présent arrêt.
Sur les dépens
| 0 |
861,813 |
25 The Court held at paragraph 21 of the judgment in Rönfeldt that the question referred by the national court in that case had to be construed as asking whether the loss of social security advantages which the workers concerned incurred because conventions between Member States had been rendered inoperative by the entry into force of Regulation No 1408/71 was compatible with Articles 48 and 51 of the Treaty. The reply given in that case accordingly relates to all social security advantages covered by Regulation No 1408/71, whether they are acquired once and for all or whether they cover the insured for a temporary period. In that connection it must be observed that, whilst the principles laid down in Rönfeldt relate to retirement benefits, which are undoubtedly characterised by immutability, they also apply to invalidity benefits which, like unemployment benefit, can vary and, in certain cases, be temporary (see to that effect Case C-475/93 Thévenon [1995] ECR I-3813, paragraphs 2, 26 and 27, and Joined Cases C-31/96, C-32/96 and C-33/96 Naranjo Arjona and Others [1997] ECR I-5501, paragraphs 2 and 29). There is therefore no real qualitative difference between those various benefits in terms of their classification in Rönfeldt as social security advantages.
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27 Consequently, the particular circumstances which prompted the Court in Roenfeldt to allow the exception to the rule laid down by Article 6 of Regulation No 1408/71 are not present in a case such as that which is the subject of the main proceedings.
| 1 |
861,814 |
55. That is true of a residence condition such as the one to which the grant of the benefit at issue in the main proceedings is subject, which can be more easily met by national workers than by those from other Member States, since the latter workers above all, particularly in the case of unemployment or invalidity, tend to leave the country in which they were formerly employed to return to their countries of origin (see, to that effect, Paraschi , cited above, paragraph 24, and Case C‑290/00 Duchon [2002] ECR I‑3567, paragraph 38).
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35. In order to assess whether such a penalty is consistent with the principle of proportionality, the nature and the degree of seriousness of the infringement which that penalty seeks to sanction must, inter alia, be taken into account, as must also the means of establishing the amount of that penalty.
| 0 |
861,815 |
58. Toutefois, il convient d’écarter l’argument du Royaume de Belgique selon lequel, en l’absence d’harmonisation en la matière, des mesures nationales, telles que celles en cause dans la présente affaire, qui affectent la libre circulation des marchandises entre les États membres, sont acceptables. En effet, l’absence d’harmonisation ne peut constituer une justification du maintien de réglementations nationales ayant des effets restrictifs sur la libre circulation des marchandises qu’à condition qu’elles soient justifiées par l’une des raisons d’intérêt général énumérées à l’article 30 CE ou par l’une des exigences impératives consacrées par la jurisprudence de la Cour et que ces réglementations soient propres à garantir la réalisation de l’objectif poursuivi et n’aillent pas au-delà de ce qui est nécessaire pour l’atteindre (voir arrêts du 22 janvier 2002, Canal Satélite Digital, C‑390/99, Rec. p. I‑607, point 33; du 20 juin 2002, Radiosistemi, C‑388/00 et C‑429/00, Rec. p. I‑5845, points 40 à 42; du 8 septembre 2005, Yonemoto, C‑40/04, Rec. p. I‑7755, point 55, et du 10 novembre 2005, Commission/Portugal, C‑432/03, Rec. p. I‑9665, point 42).
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59. In carrying out their tasks, the NRAs are required, pursuant to Article 7(1) of the Framework Directive, to take the utmost account of Article 8 thereof. In accordance with Article 8(1) of that directive, Member States must ensure that the NRAs take all reasonable measures which are aimed at achieving the objectives set out in Article 8. Furthermore, that provision states that the measures taken by the NRA must be proportionate to those objectives.
| 0 |
861,816 |
47 As regards first of all the appellant's argument that his action is directed against an omission on the part of the appointing authority, it must be borne in mind that, according to the case-law of the Court of Justice, a salary statement may constitute a measure adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations, and may therefore be the subject of a complaint and possibly an action (see in particular Case 264/83 Delhez and Others v Commission [1985] ECR 2179, paragraph 20). Therefore, since the monthly pension slips for the period from 1 July 1991 to 30 June 1994 adversely affecting the appellant were sent to him individually, he had an opportunity to submit a complaint under Article 90 of the Staff Regulations against each one of those pension slips within three months of receiving it.
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20 IT MUST BE BORNE IN MIND , AS THE COURT HAS STATED ON SEVERAL OCCASIONS , MOST RECENTLY IN ITS JUDGMENT OF 19 JANUARY 1984 IN CASE 262/80 ( ANDERSEN AND OTHERS V PARLIAMENT ( 1984 ) ECR 195 ), THAT A SALARY STATEMENT MAY CONSTITUTE A MEASURE ADVERSELY AFFECTING AN OFFICIAL AND MAY THEREFORE BE THE SUBJECT OF AN ACTION ; THE FACT THAT THE INSTITUTION CONCERNED IS ONLY APPLYING THE REGULATIONS IN FORCE IS IRRELEVANT IN THAT RESPECT . THE OBJECTION RAISED BY THE COMMISSION MUST THEREFORE BE REJECTED .
ADMISSIBILITY OF THE ACTION TO ESTABLISH LIABILITY
| 1 |
861,817 |
38. In addition, the limitation based on nationality does not relate to specific matches between teams representing their respective countries but applies to official matches between clubs and thus to the essence of the activity performed by professional players. As the Court has also ruled, such a limitation cannot be justified on sporting grounds ( Bosman , paragraphs 128 to 137; Deutscher Handballbund , paragraphs 54 to 56).
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51
In that context, it must be noted that the Portuguese Government did not provide any indication of the reasons which might prevent the national tax authorities from taking into account evidence provided by non-resident financial institutions.
| 0 |
861,818 |
61. It is appropriate, secondly, to point out that the principle of effective judicial protection, which is a general principle of Community law (see, among others, Case 222/84 Johnston [1986] ECR 1651, paragraph 18; Heylens and Others , cited above, paragraph 14; and Case C-226/99 Siples [2001] ECR I-277, paragraph 17), requires that exporters have a legal remedy against decisions taken by competent national authorities under Article 47(4) of Regulation No 3665/87. It is for the Member States to ensure effective judicial scrutiny of the observance of the applicable provisions of Community law (Johnston , cited above, paragraph 19).
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39 Persons not resident in that province therefore have little chance of acquiring the Certificate and it will be difficult, or even impossible, for them to gain access to the employment in question.
| 0 |
861,819 |
31. Mr Ipatau makes reference to the judgment in Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 119 and 121), pursuant to which it is for the Council to adduce evidence that the grounds which are the basis of the decision to include or to continue to include a person in a list of persons subject to sanctions are well founded, and the judgment in Tay Za v Council (C‑376/10 P, EU:C:2012:138, paragraph 71), by which the Court condemned the making of any assumptions about a person, or the inclusion of that person in such a list purely on the basis of their links with other persons. He submits that the General Court erred in law in ruling that the grounds of the disputed acts were sufficient to establish his responsibility for the violations of international electoral standards which occurred during the Presidential elections of 19 December 2010. In that regard, Mr Ipatau argues, first, that there was no reason for him to dissociate himself from the work of the CEC.
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55. Such an exemption would seriously interfere with the objective of Directive 85/337. Its effectiveness would be seriously compromised if the competent authorities of a Member State could, when deciding whether a project must be the subject of an environmental impact assessment, leave out of consideration that part of the project which is located in another Member State (see, by analogy, Case C‑227/01 Commission v Spain [2004] ECR I‑8253, paragraph 53).
| 0 |
861,820 |
34. It is also clear from that case-law that the Member States must exercise their powers in this field in compliance with Community law and, in particular, with Article 1 of the Third Directive, and that national provisions which govern the payment of compensation for personal injuries resulting from road traffic accidents cannot deprive that article of its effectiveness (see, to that effect, Case C-129/94 Ruiz Bernáldez [1996] ECR I-1829, paragraph 19, and Candolin and Others , paragraphs 27 and 28).
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38. In those circumstances, the tax situation of a company which has its registered office in Germany and has a permanent establishment in Austria is less favourable than it would be if the latter were to be established in Germany. By reason of that difference in tax treatment, a German company could be discouraged from carrying on its business through a permanent establishment situated in Austria ( Lidl Belgium , paragraph 25).
| 0 |
861,821 |
71. As regards the three other undertakings concerned, which are active in the petroleum, telecommunications and electricity sectors, it is undeniable that the objective of safeguarding supplies of such products or the provision of such services within the Member State concerned in the event of a crisis may constitute a public-security reason (see, for similar situations, Commission v France , paragraph 47, and Commission v Belgium , paragraph 46) and therefore may justify an obstacle to the free movement of capital.
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30 Finally, where the finding of a failure by a Member State to fulfil its obligations is not bound up with a finding as to the damage flowing therefrom, a Member State may not rely on the argument that the failure to adopt measures to transpose a directive has had no adverse consequences for the functioning of the internal market or of that directive.
| 0 |
861,822 |
78
Such an obligation is liable to render the rental or leasing of vehicles from a company established in another Member State more onerous than when the rental or leasing contract is entered into with a company established in Ireland, in the light, in particular, of the discriminatory nature of such an obligation with respect to amortisation of the tax, to the detriment of rental or leasing undertakings established in another Member State (see, to that effect, judgment of 21 March 2002, Cura Anlagen, C‑451/99, EU:C:2002:195, paragraph 69, and order of 29 September 2010, VAV-Autovermietung, C‑91/10, not published, EU:C:2010:558, paragraph 20).
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37. In accordance with the case-law of the Court, effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions (see, to that effect, Uniplex (UK) EU:C:2010:45, paragraph 32 and the case-law cited).
| 0 |
861,823 |
56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule.
"
8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held:
"66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ...
...
69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55).
...
73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities.
74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ...
"
9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds:
"77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... .
78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37).
"
The appeal
10. By its appeal, Interporc claims that the Court should:
─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs;
─ annul the contested decision in its entirety;
─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance.
11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment).
12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment.
Admissibility of the appeal
Arguments of the parties
13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance.
14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly.
Findings of the Court
15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68).
16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24).
17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49).
18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based.
19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance.
20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule.
21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively.
22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed.
23. It follows from the foregoing that the appeal is admissible.
Substance
The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file
Arguments of the parties
24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal).
25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers.
26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal.
27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90.
Findings of the Court
28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment.
29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81).
30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56).
31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule.
32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case.
33. It follows that the first plea must be rejected.
The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order
Arguments of the parties
34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty.
35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed.
36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred.
37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned.
Findings of the Court
38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions.
39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights.
40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration.
41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied.
42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature.
43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case.
44. The first part of the second plea must therefore be rejected.
The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule
Arguments of the parties
45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case.
46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule.
47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case.
Findings of the Court
48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27).
49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author.
50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents.
51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author.
52. The second part of the second plea must therefore be rejected as unfounded.
The third part of the second plea alleging infringement of the obligation to state reasons
Arguments of the parties
53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities.
54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea.
Findings of the Court
55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48).
56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).
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56. It should be borne in mind that differences in the national laws governing exhaustion of the right of distribution are likely to affect directly the smooth functioning of the internal market. Accordingly, the objective of harmonisation in this area is to remove impediments to free movement.
| 0 |
861,824 |
36 The first point to note is that, although the Court has no jurisdiction, in proceedings brought under Article 177 of the Treaty, to rule on the question whether provisions of national legislation are compatible with Community law, it may provide the national court with all such criteria for the interpretation of Community law as may enable it to answer that question (see Case 97/83 Melkunie [1984] ECR 2367, paragraph 7).
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21. De même, la Cour a déjà jugé que ladite notion a un caractère objectif et qu’elle s’applique indépendamment des buts et des résultats des opérations concernées, sans qu’il existe une obligation pour l’administration fiscale de procéder à des enquêtes en vue de déterminer l’intention de l’assujetti en cause ou encore de tenir compte de l’intention d’un opérateur autre que cet assujetti intervenant dans la même chaîne de livraisons (voir, en ce sens, arrêts Optigen e.a., précité, points 44 à 46 ainsi que 51 et 55; Halifax e.a., précité, points 56 et 57; du 6 juillet 2006, Kittel et Recolta Recycling, C‑439/04 et C‑440/04, Rec. p. I‑6161, points 41 à 44, ainsi que Newey, précité, point 41).
| 0 |
861,825 |
51. Contrary to the arguments put forward by the Commission, by the ground of appeal relating to infringement of the right of access to the file, Solvay is not criticising the findings of fact made at first instance, but the rules applied by the General Court as regards the standard of proof relating to the usefulness of the documents, some of which have been mislaid. The question whether the General Court applied the correct legal standard when determining the usefulness of those documents for Solvay’s defence is a question of law, which is amenable to review by the Court of Justice on appeal (see, to that effect, Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 40, and Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 117).
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42. Where there has been no prior publication of a contract notice, such a limitation period of six months is likely not to enable a person harmed to gather the necessary information with a view to a possible action, thus preventing that action from being brought.
| 0 |
861,826 |
48. On the other hand, the EU legislation also takes into consideration the fact that exporters may encounter practical difficulties in obtaining the customs documents from the authorities of the non-member country of importation, upon whom they have no means of exerting pressure. It is in that context that it enables the competent national authorities to grant the exporter concerned extensions of time (see, to that effect, judgment in Eribrand , EU:C:2003:364, paragraphs 41 and 42).
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60. It follows from all of the foregoing that the FEG’s arguments relating to the breach of the rights of the defence are not supported by convincing evidence capable of demonstrating that such a breach may have resulted from the excessive duration of the phase of the administrative procedure preceding notification of the statement of objections and that on the date of notification the FEG’s opportunities to defend itself were already thereby compromised.
| 0 |
861,827 |
23 The Court found in its judgment, first, that the German-Danish convention had been replaced with effect from 1 April 1973 by the rules of Community law contained in Regulation No 1408/71 (paragraph 14) and that the question was therefore whether, and how, Community law required account to be taken of insurance periods completed in Denmark before Regulation No 1408/71 entered into force in that country following its accession to the Communities, for the purpose of granting a retirement pension in some other Member State (paragraph 15).
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139. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see, inter alia, Commission v Sytraval and Brink’s France , paragraph 63; Bertelsmann and Sony Corporation of America v Impala , paragraph 166; and Melli Bank v Council , paragraph 93).
| 0 |
861,828 |
35. The national court, in assessing the facts characterising the transaction in question, must take into account the type of undertaking or business concerned. It follows that the degree of importance to be attached to each criterion indicating a transfer within the meaning of Directive 2001/23 will necessarily vary according to the activity carried on, or indeed the production or operating methods employed in the relevant undertaking, business or part of a business (see Süzen , paragraph 18; Joined Cases C-173/96 and C-247/96 Hidalgo and Others [1998] ECR I-8237, paragraph 31, and Abler and Others , paragraph 35).
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50. Article 3(1)(c) TFEU states that the Union is to have exclusive competence in the area of monetary policy for the Member States whose currency is the euro.
| 0 |
861,829 |
59. The rule set out in Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94 confers on the proprietor of a trade mark exclusive rights entitling him to prevent any third party from importing goods bearing that mark, offering the goods, or putting them on the market or stocking them for those purposes, whilst Article 7 of the directive and Article 13 of the regulation have laid down an exception to that rule, providing that the trade mark proprietor’s rights are exhausted where the goods have been put on the market in the EEA – or, in the case of a Community trade mark, in the EU – by the proprietor himself or with his consent (see, inter alia, Case C‑16/03 Peak Holding [2004] ECR I‑11313, paragraph 34; Case C‑324/08 Makro Zelfbedieningsgroothandel and Others [2009] ECR I-10019, paragraph 21, and Case C‑127/09 Coty Prestige Lancaster Group [2010] ECR I‑0000, paragraphs 28 and 46).
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31 On that point it should be stated that, as the Austrian Government acknowledged at the hearing, the register enables the competent authorities to reduce the expenditure of the Austrian social security system, inasmuch as the pharmaceutical companies are generally required to agree to lower prices in consideration for the inclusion on the register of one of their medicinal products since that inclusion means that the cost will automatically be borne by the scheme. Under those conditions inclusion of a medicinal product in that register thus constitutes a measure intended to control prices.
| 0 |
861,830 |
51. With regard to the complaint that the General Court erred in law in holding that the Council was not bound to produce proof of the materiality of the transactions concerned, it must be borne in mind that it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded (judgment in Commission and Others v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121). Since the facts relating to the actual existence of the relevant transactions may be regarded as being undisputed in the present case, the General Court did not err in law.
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25. Since luxury goods are high-class goods, the aura of luxury emanating from them is essential in that it enables consumers to distinguish them from similar goods.
| 0 |
861,831 |
21. In order to answer that question, it is appropriate to bear in mind the settled case‑law of the Court, according to which a taxable person may choose whether or not to integrate into his business, for the purposes of applying the Sixth Directive, part of an asset which is given over to his private use (see, inter alia, Case C‑291/92 Armbrecht [1995] ECR I-2775, paragraph 20, and Seeling , paragraph 40).
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6. Following, inter alia, the judgment in Costa and Cifone (C‑72/10 and C‑77/10, EU:C:2012:80), the betting and gambling sector was reformed by Decree-Law No 16 of 2 March 2012 laying down urgent provisions related to fiscal simplification, improving effectiveness and reinforcing monitoring procedures (GURI No 52 of 2 March 2012, p. 1), converted, after amendment, into statute by Law No 44 of 26 April 2012 (GURI No 99 of 28 April 2012, Ordinary Supplement No 85, p. 1 et seq.; consolidated text, p. 23 et seq., ‘Decree-Law No 16’).
| 0 |
861,832 |
20 Thus, in Case 89/81 Staatssecretaris van Financiën v Hong Kong Trade [1982] ECR 1277, paragraph 6, the Court held that it was apparent from the First Directive (Council Directive 67/227/EEC of 11 April 1967 on the harmonization of the legislation of the Member States concerning turnover tax (OJ, English Special Edition 1967, p. 16) that one of the principles on which the VAT system was based was neutrality, in the sense that within each country similar goods should bear the same tax burden whatever the length of the production and distribution chain.
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23. According to the settled case-law of the Court, 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 objects of the rules of which it is part (judgments in Csonka and Others , C‑409/11, EU:C:2013:512, paragraph 23, and Vnuk , C‑162/13, EU:C:2014:2146, paragraph 42).
| 0 |
861,833 |
22. Indeed, in accordance with settled case-law, a national measure in an area which has been the subject of exhaustive harmonisation at European Union level must be assessed in the light of the provisions of that harmonising measure and not in the light of those of the Treaty (Case C‑322/01 Deutscher Apothekerverband [2003] ECR I‑14887, paragraph 64, and Case C‑205/07 Gysbrechts and Santurel Inter [2008] ECR I‑9947, paragraph 33).
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47. Identifying the elements of a matter which must be categorised as essential must be based on objective factors amenable to judicial review, and requires account to be taken of the characteristics and particular features of the field concerned (see, to that effect, judgment in Parliament v Council , C‑355/10, EU:C:2012:516, paragraphs 67 and 68).
| 0 |
861,834 |
22. A national court before which an action relating to a contract which may be covered by that directive has been brought is required to determine, taking into account all the evidence and in particular the terms of that contract, whether the purchaser may be categorised as a consumer within the meaning of that directive (see, by analogy, judgment in Faber , C‑497/13, EU:C:2015:357, paragraph 48).
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94. Il y a donc lieu, pour la Cour, de décider qu’une violation, par une juridiction de l’Union, de son obligation résultant de l’article 47, deuxième alinéa, de la Charte de juger les affaires qui lui sont soumises dans un délai raisonnable doit trouver sa sanction dans un recours en indemnité porté devant le Tribunal, un tel recours constituant un remède effectif.
| 0 |
861,835 |
22. A failure to fulfil obligations may arise due to the existence of an administrative practice which infringes Community law, even if the applicable national legislation itself complies with that law (see Case C-441/02 Commission v Germany [2006] ECR I-3449, paragraph 47).
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28. Consequently, and in view of the strict interpretation which it must be given as a derogation, the second subparagraph of Article 17(6) of the Sixth Directive cannot be regarded as permitting a Member State to maintain a restriction of the right to deduct VAT which may also apply in a general manner to any expenditure related to the acquisition of goods, irrespective of its nature or purpose.
| 0 |
861,836 |
31. The general principle of equal treatment, as a general principle of Community law, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case 106/83 Sermide [1984] ECR 4209, paragraph 28; Joined Cases C‑133/93, C‑300/93 and C‑362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraphs 50 and 51; Case C‑313/04 Franz Egenberger [2006] ECR I‑6331, paragraph 33, and Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑9895, paragraph 23).
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26. Rather, it is necessary that that public service should be provided under the control of a public authority and that that undertaking should have special powers beyond those which result from the normal rules applicable in relations between individuals (see, to that effect, Rieser Internationale Transporte , paragraphs 25 to 27).
| 0 |
861,837 |
26. Article 13A(1)(g) of the Sixth Directive does not specify the conditions and procedures for recognising such organisations (see Case C‑498/03 Kingscrest Associates and Montecello [2005] ECR I‑4427, paragraph 49). In consequence, it is in principle for the national law of each Member State to lay down the rules in accordance with which that recognition may be granted to such organisations. Member States have a discretion in that respect (see inter alia, to that effect, Kügler , paragraph 54; Kingscrest Associates and Montecello , paragraphs 49 and 51; and Case C‑415/04 Stichting Kinderopvang Enschede [2006] ECR I‑1385, paragraph 23).
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58. The fact that that scheme is simply an extension of the scheme which expired on 31 December 2009, assuming that be proved, is not decisive because the extension of an existing aid scheme creates a new aid which is distinct from the scheme which was extended (see, to that effect, Case C‑138/09 Todaro Nunziatina & C. [2010] ECR I‑4561, paragraphs 46 and 47).
| 0 |
861,838 |
42. In those circumstances, the Court, applying the case-law cited in paragraph 38 above and taking into account the constituent elements of German care insurance benefits, held essentially in paragraphs 22 to 25 of Molenaar that benefits such as those provided under the German care insurance scheme, even if they have their particular characteristics, must be regarded as ‘sickness benefits’ within the meaning of Article 4(1)(a) of Regulation No 1408/71.
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39 Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1119, paragraphs 18 and 19, and Bosman, cited above, paragraph 96).
| 0 |
861,839 |
47. In paragraphs 21 to 24 of the judgment in Case C‑7/94 Gaal [1995] ECR I‑1031, the Court rejected the argument that there was a close relationship between Articles 10 and 11 of Regulation No 1612/68 on the one hand and Article 12 of that regulation on the other, so that Article 12 granted the right of equal treatment in access to education in the host Member State only to children who satisfied the conditions set out in Articles 10 and 11. In paragraph 23 of Gaal , the Court expressly stated that Article 12 contains no reference to Articles 10 and 11.
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110. Admittedly, provided that an appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see, in particular, Case C-41/00 P Interporc v Commission [2003] ECR I-2125, paragraph 17, and Storck v OHIM , paragraph 48).
| 0 |
861,840 |
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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54. À cet égard, il résulte d’une jurisprudence constante que la Commission peut, dans l’exercice des compétences dont elle dispose en vertu des articles 107 TFUE et 108 TFUE, arrêter des lignes directrices qui ont pour objet d’indiquer la manière dont elle entend exercer, au titre des mêmes articles, son pouvoir d’appréciation à l’égard d’aides nouvelles ou à l’égard de régimes d’aides existants (arrêt du 18 juin 2002, Allemagne/Commission, C‑242/00, Rec. p. I‑5603, point 27).
| 0 |
861,841 |
29. It is for the national court, which alone has jurisdiction to assess the facts, to determine whether, in the light of facts relating to the nature of the work done and the conditions in which it is carried out, work of equal value to that performed by Ms Nikoloudi exists within OTE, without necessarily taking account of the working schedule on the basis of which the work is performed (see, to this effect, Case C-400/93 Royal Copenhagen [1995] ECR I‑1275, paragraph 43, and JämO , cited above, paragraphs 20 and 49).
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35 It follows that Sardegna Lines is individually concerned by Decision 98/95.
| 0 |
861,842 |
47. The Commission recalls also that the Court, in its judgments in Intertanko and Others (C‑308/06, EU:C:2008:312) and Air Transport Association of America and Others (C‑366/10, EU:C:2011:864), did not accept that it can review the validity of a directive in relation to an international agreement even though that agreement contained references to it.
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11 The directive thus gives two definitions of medicinal products: a definition of medicinal products "by virtue of their presentation" and a definition of medicinal products "by virtue of their function". A product is a medicinal product if it falls within either of those definitions.
| 0 |
861,843 |
44. In the context of that cooperation, it is for the national court seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and 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 concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see to that effect, inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59; Case C‑379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; Case C‑153/00 Der Weduwe [2002] ECR I‑11319, paragraph 31; Case C‑318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I‑905, paragraph 41; and Schmidberger , paragraph 31).
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26 Secondly, it follows from Krid, paragraph 32, and, by analogy, from Kziber, paragraph 25, Yousfi, paragraph 24, and Hallouzi-Choho, paragraph 25, that the term `social security' contained in that provision must be deemed to bear the same meaning as the identical term used in Regulation No 1408/71.
| 0 |
861,844 |
35. Such a difference in treatment can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions ( Bidar , paragraph 54 and case-law cited).
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17 FURTHERMORE , THE ASSIGNMENT , IN THE INTERESTS OF THE PROPER ADMINISTRATION OF JUSTICE , OF EXCLUSIVE JURISDICTION TO THE COURTS OF ONE CONTRACTING STATE IN ACCORDANCE WITH ARTICLE 16 OF THE CONVENTION RESULTS IN DEPRIVING THE PARTIES OF THE CHOICE OF THE FORUM WHICH WOULD OTHERWISE BE THEIRS AND , IN CERTAIN CASES , RESULTS IN THEIR BEING BROUGHT BEFORE A COURT WHICH IS NOT THAT OF THE DOMICILE OF ANY OF THEM .
| 0 |
861,845 |
7 It must be borne in mind that, according to settled case-law, 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 that the Court cannot take account of any subsequent changes (see, in particular, Case C-69/99 Commission v United Kingdom [2000] ECR I-10979, paragraph 22; Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26, and Case C-110/00 Commission v Austria [2001] ECR I-7545, paragraph 13).
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66. More specifically, the data must be "collected for specified, explicit and legitimate purposes" (Article 6(1)(b) of Directive 95/46) and must be "adequate, relevant and not excessive" in relation to those purposes (Article 6(1)(c)). In addition, under Article 7(c) and (e) of the directive respectively, the processing of personal data is permissible only if it "is necessary for compliance with a legal obligation to which the controller is subject" or "is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller ... to whom the data are disclosed" .
| 0 |
861,846 |
59. However, it cannot be denied that the withdrawal of that advantage constitutes a clear disadvantage in terms of cash-flow. In this connection, the Court has repeatedly held that the exclusion of a cash-flow advantage in a cross-border situation where it is available in an equivalent domestic situation is a restriction on the freedom of establishment (see, to that effect, inter alia, Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraphs 44, 54 and 76; Case C-436/00 X and Y [2002] ECR I-10829, paragraphs 36 to 38; Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 32; and Case C-347/04 Rewe Zentralfinanz [2007] ECR I-2647, paragraph 29).
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27. It follows that such a derogation must necessarily be interpreted strictly, as any derogation from or exception to a general rule is to be inte rpreted strictly.
| 0 |
861,847 |
27. It is settled case-law that national courts do not have the power to declare acts of the Community institutions invalid. The main purpose of the jurisdiction conferred on the Court by Article 234 EC is to ensure that Community law is applied uniformly by national courts. That requirement of uniformity is particularly vital where the validity of a Community act is in question. Differences between courts of the Member States as to the validity of Community acts would be liable to jeopardise the very unity of the Community legal order and undermine the fundamental requirement of legal certainty (Case 314/85 Foto-Frost [1987] ECR 4199, paragraph 15; Case C-27/95 Bakers of Nailsea [1997] ECR I-1847, paragraph 20; and Case C-461/03 Gaston Schul Douane-expediteur [2005] ECR I‑0000, paragraph 21). The Court of Justice alone therefore has jurisdiction to declare a Community act invalid (Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415, paragraph 17, and Case C-6/99 Greenpeace France and Others [2000] ECR I‑1651, paragraph 54).
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39. Par ailleurs, il convient de souligner que la présence d’un élément figuratif ne suffit pas, à elle seule, à établir que la marque possède un caractère distinctif au sens de l’article 7, paragraphe 1, sous b), du règlement n° 40/94. Il convient toujours de vérifier si une telle marque permet au consommateur moyen du produit concerné, normalement informé et raisonnablement attentif et avisé, de distinguer, sans procéder à une analyse et sans faire preuve d’une attention particulière, ce produit de ceux d’autres entreprises (voir, en ce sens, arrêt du 7 octobre 2004, Mag Instrument/OHMI, C-136/02 P, Rec. p. I-9165, point 32).
| 0 |
861,848 |
15
In that regard, it should be noted that the provisions of Title II of Regulation No 1408/71, which includes Article 14(2), constitute, according to the settled case-law of the Court, a complete and uniform system of conflict rules, the aim of which is to ensure that workers moving within the Union are subject to the social security scheme of only one Member State, in order to prevent the national legislation of more than one Member State from being applicable and to avoid the attendant complications of such a situation (judgment of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 29 and the case-law cited).
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53. In the light of the foregoing, it remains to be determined whether the criterion adopted by the competent authority for the granting of the right of access is applied to the economic operators concerned in a non-discriminatory manner. As stated however by the Advocate General in point 35 of his Opinion, that examination is subsumed, in essence, in the issue of whether the bus lanes policy confers on Black Cabs a selective economic advantage. Consequently, that issue will be dealt with in examining the existence of such an advantage.
| 0 |
861,849 |
43. In the case in the main proceedings, the price surcharge is imposed on transmitted electricity. In that regard, it must be borne in mind that electricity constitutes a product for the purposes of the provisions of the Treaty (Case C-393/92 Almelo [1994] ECR I-1477, paragraph 28, and Case C-158/94 Commission v Italy [1997] ECR I-5789, paragraph 17).
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21 Proceeding on the basis of the normal value thus constructed for sales by Mita to OEMs, the Council and the Commission arrived at a dumping margin lower than the margin calculated for sales of plain paper photocopiers marketed under Mita' s own brand name, and that dumping margin, together with those ascertained for all Mita' s sales channels, was taken into account in calculating a weighted dumping margin on the basis of which the anti-dumping duty was set .
| 0 |
861,850 |
42
First of all, it should be borne in mind that Regulation No 2988/95, in accordance with Article 1 thereof, introduces general rules relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to EU law in order, as is clear from the third recital of the regulation, to counter acts detrimental to the financial interests of the European Union in all areas (judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 20 and the case-law cited).
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20. Firstly, it is appropriate to recall that Regulation No 2988/95 introduces, in accordance with Article 1 thereof, ‘general rules … relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to [EU] law’ and, as is apparent from the third recital in the preamble to that regulation, in order to ‘[counter] acts detrimental to the [EU’s] financial interests … in all areas’ (see judgments in Handlbauer , C‑278/02, EU:C:2004:388, paragraph 31 ; Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , C‑278/07 to C‑280/07, EU:C:2009:38, paragraph 20; and Pfeifer & Langen , C‑564/10, EU:C:2012:190, paragraph 36).
| 1 |
861,851 |
53 The Court has already held that the system whereby movement certificates are regarded as evidence of the origin of products is founded on the principle of mutual reliance and cooperation between the competent authorities of the exporting State and those of the importing State. A system of that kind cannot therefore function properly unless the procedures for administrative cooperation are strictly complied with (see, to that effect, Case C-432/92 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Anastasiou and Others [1994] ECR I-3087, paragraphs 38 and 40).
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32. According to the Court’s case law, as the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not within the discretion of the Member States or of the institutions themselves, the Treaties alone may, in particular cases, empower an institution to amend a decision-making procedure established by the Treaties. Accordingly, to acknowledge that an institution can establish secondary legal bases, whether for the purpose of strengthening or easing the detailed rules for the adoption of an act, is tantamount to according that institution a legislative power which exceeds that provided for by the Treaties (see judgment in Parliament v Council , C‑133/06, EU:C:2008:257, paragraphs 54 to 56).
| 0 |
861,852 |
32. In that regard, it must be held that, contrary to the submission of Smart Technologies, the findings of the General Court in paragraph 31 of the judgment under appeal do not disclose a misreading of the principles established by the Court of Justice, inter alia in paragraph 45 of Audi v OHIM , in which the Court held that, in so far as the public perceives the mark as an indication of the commercial origin of goods or services, the fact that the mark is at the same time understood — perhaps even primarily understood — as a promotional formula has no bearing on its distinctive character.
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8 The Spanish Government contended in addition that the extension of the transitional scheme on exemptions beyond the period provided for in Article 28(4) allows Article 28(4)(3)(b) to be interpreted as meaning that Member States may reintroduce into their law the exemption of the activities in question, in particular where it is necessary to ensure equality of treatment for authors residing in their territory in relation to authors residing in the territory of other Member States who continue to grant such exemption.
| 0 |
861,853 |
32. According to the Court, criteria such as the calorific value of the waste, the amount of harmful substances contained in the incinerated waste or whether or not the waste has been mixed cannot, by contrast, be taken into consideration ( Commission v Germany , paragraph 47).
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13 In the light of that purpose of Article 37, the guidance which the Commission, assisted by highly qualified groups of experts, can give to the Member State concerned is of very great importance, owing, in particular, to the Commission' s unique overview of developments in the nuclear power industry throughout the territory of the Community .
| 0 |
861,854 |
30. It follows that, as regards the marketing in one Member State of products or components lawfully manufactured and marketed in another Member State, and in the absence of Community harmonisation, the requirement of conformity to standard NBN S 21-100 imposed by the Belgian regulations may have the effect of forcing economic operators of other Member States to adapt their apparatus and equipment to the requirements of standards or technical regulations of the Member State of importation and to bear the additional costs associated with such adaptation ( Commission v Belgium , paragraph 17; Case C-14/02 ATRAL [2003] ECR I-4431, paragraph 63; and Commission v Italy , paragraph 19), or of deterring them from marketing the products concerned in Belgium (Case 45/87 Commission v Ireland [1988] ECR I- 4929, paragraph 19, and Commission v Belgium , paragraph 18).
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57. The national concerned must therefore, on account of circumstances existing in his country of origin, have a well-founded fear of being personally the subject of persecution for at least one of the five reasons listed in the Directive and the Geneva Convention.
| 0 |
861,855 |
21 In that connection, the Court has consistently held (Case C-192/89 Sevince [1990] ECR I-3461, paragraph 30; Case 237/91 Kus [1992] ECR I-6781, paragraphs 12 and 22; Case C-434/93 Bozkurt [1995] ECR I-1475, paragraph 26) that legal employment within the meaning of the first indent of Article 6(1) presupposes a stable and secure situation as a member of the labour force of a Member State and, by virtue of this, implies the existence of an undisputed right of residence.
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41. The aforementioned obligation has as its corollary the principle of the irrevocability of the customs declaration once it has been accepted, a principle the exceptions to which are strictly defined by the relevant European Union legislation.
| 0 |
861,856 |
43. As the Court has already held, in relation to direct taxes, the situations of residents and of non-residents are generally not comparable, because the income received in the territory of a Member State by a non-resident is in most cases only a part of his total income, which is concentrated at his place of residence, and because a non-resident's personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is easier to assess at the place where his personal and financial interests are centred, which in general is the place where he has his usual abode (Schumacker , paragraphs 31 and 32; Gschwind , paragraph 22; Case C-87/99 Zurstrassen [2000] ECR I-3337, paragraph 21).
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78. As regards the retail price, it is clear from the very wording of the second contractual clause that that price is not imposed, but recommended by the supplier, without a maximum sale price even being stipulated. The method for calculating the recommended sale price is, in that regard, irrelevant, provided that a degree of freedom is left to the reseller enabling him actually to determine the sale price. However, there would be no such freedom in the event that the supplier imposed a fixed distribution margin on the reseller from which he could not depart.
| 0 |
861,857 |
32 However, it is also clear from that case-law that mere exercise of the right of ownership by its holder cannot, in itself, be regarded as constituting an economic activity. The Court has so held with regard to financial holdings acquired by holding companies in other undertakings (see, in particular, the judgments in Polysar Investments Netherlands, cited above, paragraph 13, and in Case C-333/91 Sofitam v Ministre chargé du Budget [1993] ECR I-3513, paragraph 12).
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22 In other words, it may be acknowledged that, in principle, the application by the host Member State of its minimum-wage legislation to providers of services established in another Member State pursues an objective of public interest, namely the protection of employees.
| 0 |
861,858 |
65. It should be noted in this regard that, according to the Court’s settled case-law, although the transposition of a directive into domestic law does not necessarily require the provisions of the directive to be reproduced in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient, it is nevertheless necessary that that legal context be sufficiently clear and precise as to enable the parties concerned to be fully informed of their rights and, if necessary, avail themselves of those rights before the national courts (judgment of 29 October 2009 in Case C‑474/08 Commission v Belgium , paragraph 19 and case-law cited).
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35. In this connection, given the power accorded to the Member States to determine the level of protection of public health, it must be accepted that Member States may require that medicinal products be supplied by pharmacists enjoying genuine professional independence. They may also take measures which are capable of eliminating or reducing a risk that that independence will be prejudiced because such prejudice would be liable to affect the degree to which the provision of medicinal products to the public is reliable and of good quality.
| 0 |
861,859 |
118. The provisions of Chapter 3 of Title II of the EAEC Treaty form a coherent whole conferring on the Commission powers of some considerable scope in order to protect the population and the environment against the risks of nuclear contamination (see Land de Sarre and Others , paragraph 11, and Commission v Council , paragraph 79).
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47. According to settled case-law, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters (see, inter alia, Case C-396/02 DFDS [2004] ECR I-8439, paragraph 27, and case-law cited).
| 0 |
861,860 |
20
In the first place, it must be recalled that general principles of law, which include the principle of proportionality, form part of the EU legal order. They must accordingly be observed not only by the EU institutions but also by Member States in the exercise of the powers conferred on them by EU directives (see, to that effect, inter alia, judgments of 21 February 2008 in Netto Supermarkt, C‑271/06, EU:C:2008:105, paragraph 18, and of 10 September 2009 in Plantanol, C‑201/08, EU:C:2009:539, paragraph 43).
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60. In addition, it is not apparent from any provision of that regulation that such a failure leads to the invalidity of the procedure for service.
| 0 |
861,861 |
30 In that regard, it should be borne in mind that, according to the settled case-law of the Court, the choice of the legal basis for a Community measure must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure (see, inter alia, Case C-300/89 Commission v Council [1991] ECR I-2867, known as `Titanium dioxide', paragraph 10, and Case C-269/97 Commission v Council [2000] ECR I-2257, paragraph 43).
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52. Accordingly, it cannot be considered that the provisions of Directive 98/59, referred to by the question posed, have been, as such, made applicable in a direct and unconditional way by national law to a situation such as that in the main proceedings.
| 0 |
861,862 |
40. However, when giving a preliminary ruling the Court may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, inter alia, Case C-79/01 Payroll and Others [2002] ECR I‑8923, paragraph 29, and Manfredi and Others , paragraph 48).
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21 ALTHOUGH THE LANDBOUWSCHAP CANNOT BE CONSIDERED TO BE DIRECTLY AND INDIVIDUALLY CONCERNED BY DECISION 85/215 AS A RECIPIENT OF THE CONTESTED AID, IT IS NONE THE LESS TRUE THAT, AS THE LANDBOUWSCHAP RIGHTLY ARGUES, ITS POSITION AS NEGOTIATOR OF GAS TARIFFS IN THE INTERESTS OF THE GROWERS IS AFFECTED BY DECISION 85/215 .
| 0 |
861,863 |
18 In that regard, it should be noted that the general principle laid down in the first paragraph of Article 7 can only apply subject to the special provisions of the Treaty (see in particular the judgment in Case 8/77 Sagulo, Brenca and Bakhouche [1977] ECR 1495, paragraph 11) and that the purpose of the second paragraph of Article 7 is to enable the Council to adopt, having regard to the rights and interests concerned, the provisions needed in order effectively to eliminate discrimination on grounds of nationality in areas where its powers are not based on any of the special provisions governing the various fields covered by the Treaty. However, measures adopted under the second paragraph of Article 7 of the Treaty do not necessarily have to be limited to rules governing the rights which derive from the first paragraph of that article but may also be concerned with matters in respect of which rules appear to be required in order to ensure that those rights can be effectively exercised.
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11 THE FIRST PARAGRAPH OF ARTICLE 7 OF THE EEC TREATY STATES : ' WITHIN THE SCOPE OF APPLICATION OF THIS TREATY , AND WITHOUT PREJUDICE TO ANY SPECIAL PROVISIONS CONTAINED THEREIN , ANY DISCRIMINATION ON GROUNDS OF NATIONALITY SHALL BE PROHIBITED ' . WITH REGARD TO THE QUESTION PUT BY THE COURT MAKING THE REFERENCE IT SHOULD BE POINTED OUT THAT THE GENERAL PRINCIPLE OF ARTICLE 7 CAN ONLY APPLY SUBJECT TO THE SPECIAL PROVISIONS OF THE TREATY . THESE SPECIAL PROVISIONS INCLUDE THE REGULATIONS AND DIRECTIVES , INCLUDING AMONG THESE DIRECTIVE NO 68/360 , PROVIDED FOR IN ARTICLE 49 TO BRING ABOUT , BY PROGRESSIVE STAGES , FREEDOM OF MOVEMENT . IN SO FAR AS THIS DIRECTIVE IMPOSES SPECIAL OBLIGATIONS ( SUCH AS THE POSSESSION OF A PASSPORT OR AN IDENTITY CARD ) ON THE NATIONALS OF A MEMBER STATE WHO ENTER THE TERRITORY OF ANOTHER MEMBER STATE OR RESIDE THERE , THE PERSONS AFFECTED THEREBY CANNOT BE SIMPLY PUT ON THE SAME FOOTING AS NATIONALS OF THE COUNTRY OF RESIDENCE .
| 1 |
861,864 |
35. As is apparent from Case C‑224/98 D’Hoop [2002] ECR I‑6191, paragraphs 29 to 34, a national of a Member State who goes to another Member State and pursues secondary education there exercises the freedom to move guaranteed by Article 18 EC.
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32. It is clear from the descriptions of such vehicles in the explanatory notes on the CN and the HS that an essential characteristic of dumpers is to have a tipping hopper or an opening bottom for the transport of rubble and various materials. There is, by contrast, no indication in those notes that the form or functioning of the tipping hoppers can constitute, by themselves, decisive criteria for the classification of a vehicle as a dumper.
| 0 |
861,865 |
44
That said, it is apparent from the case-law of the Court of Justice and from the case-law of the European Court of Human Rights that the right of access to a court is not an absolute right and that, consequently, it may involve proportionate restrictions that pursue a legitimate aim and do not adversely affect the very essence of that right, including restrictions linked to the payment of court costs (see, to that effect, judgments of 22 December 2010 in DEB, C‑279/09, EU:C:2010:811, paragraphs 45, 52 and 60, and 6 October 2015 in Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraphs 72 and 79, and ECtHR, 8 June 2006, V.M. v. Bulgaria, CE:ECHR:2006:0608JUD004572399, § 41 and 42 and the case-law cited).
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36
Next, it should be noted that, according to the Court’s settled case-law, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (judgment of 17 February 2016, Salutas Pharma, C‑124/15, EU:C:2016:87, paragraph 29 and the case-law cited).
| 0 |
861,866 |
124. As the Cour t has recalled in paragraph 32 of the present judgment, as long as the European Union has not acceded to the ECHR, it does not constitute a legal instrument which has been formally incorporated into European Union law. However, in accordance with settled case-law, fundamental rights, which include the right to property, form an integral part of the general principles of law the observance of which the Court ensures (see, to this effect, Case 44/79 Hauer [1979] ECR 3727, paragraphs 15 and 17). Protection of the right to property is, moreover, provided for in Article 17 of the Charter.
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15 THE COURT ALSO EMPHASIZED IN THE JUDGMENT CITED , AND LATER IN THE JUDGMENT OF 14 MAY 1974 , NOLD ( 1974 ) ECR 491 , THAT FUNDAMENTAL RIGHTS FORM AN INTEGRAL PART OF THE GENERAL PRINCIPLES OF THE LAW , THE OBSERVANCE OF WHICH IT ENSURES ; THAT IN SAFEGUARDING THOSE RIGHTS , THE COURT IS BOUND TO DRAW INSPIRATION FROM CONSTITUTIONAL TRADITIONS COMMON TO THE MEMBER STATES , SO THAT MEASURES WHICH ARE INCOMPATIBLE WITH THE FUNDAMENTAL RIGHTS RECOGNIZED BY THE CONSTITUTIONS OF THOSE STATES ARE UNACCEPTABLE IN THE COMMUNITY ; AND THAT , SIMILARLY , INTERNATIONAL TREATIES FOR THE PROTECTION OF HUMAN RIGHTS ON WHICH THE MEMBER STATES HAVE COLLABORATED OR OF WHICH THEY ARE SIGNATORIES , CAN SUPPLY GUIDELINES WHICH SHOULD BE FOLLOWED WITHIN THE FRAMEWORK OF COMMUNITY LAW . THAT CONCEPTION WAS LATER RECOGNIZED BY THE JOINT DECLARATION OF THE EUROPEAN PARLIAMENT , THE COUNCIL AND THE COMMISSION OF 5 APRIL 1977 , WHICH , AFTER RECALLING THE CASE-LAW OF THE COURT , REFERS ON THE ONE HAND TO THE RIGHTS GUARANTEED BY THE CONSTITUTIONS OF THE MEMBER STATES AND ON THE OTHER HAND TO THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF 4 NOVEMBER 1950 ( OFFICIAL JOURNAL C 103 , 1977 , P . 1 ).
| 1 |
861,867 |
17 As the Court has held on several occasions, a comparison of the national systems shows that the problem of disputing charges which have been unlawfully claimed or refunding charges which have been paid when not due is settled in different ways in the various Member States, and even within a single Member State, according to the various kinds of taxes or charges in question. In certain cases, objections or claims of this type are subject to specific procedural conditions and time-limits under the law with regard both to complaints submitted to the tax authorities and to legal proceedings. In other cases, claims for repayment of charges which were paid but not due must be brought before the ordinary courts, mainly in the form of claims for the refunding of sums paid but not owed, such actions being available for varying lengths of time, in some cases for the limitation period laid down under the general law (see Case 68/79 Just v Ministry for Fiscal Affairs [1980] ECR 501, paragraphs 22 and 23; Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205, paragraphs 23 and 24; Case 811/79 Amministrazione delle Finanze dello Stato v Ariete [1980] ECR 2545, paragraphs 10 and 11, and Case 826/79 Amministrazione delle Finanze dello Stato v Mireco [1980] ECR 2559, paragraphs 11 and 12).
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44 Van Uden and the Commission do not share that view. In the Commission's view, provisional measures must be taken to mean those whose validity lapses when the main issue is determined or on the expiry of a specified period. They may comprise positive measures, that is to say an order to perform some act such as the handing-over of property or the payment of a sum of money.
| 0 |
861,868 |
84. According to a consistent body of case-law, for the purposes of applying Article 81(1) EC, there is no need to take account of the actual effects of an agreement once it appears that its object is to restrict, prevent or distort competition (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraphs 122 and 123, and also Limburgse Vinyl Maatschappij and Others v Commission , paragraph 491). As regards, in particular, agreements of an anti-competitive nature which, as in the present case, are reached at meetings of competing undertakings, the Court of Justice has already held that Article 81(1) EC is infringed where those meetings have as their object the restriction, prevention or distortion of competition and are thus intended to organise artificially the operation of the market ( Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 508 and 509). For the reasons stated by the Advocate General at points 134 to 137 of his Opinion, it would be inappropriate to nuance that case-law in the sense proposed by the appellant.
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36. Furthermore, as Shield Mark, the intervening Governments and the Commission have stated, sound signs are not by nature incapable of distinguishing the goods or services of one undertaking from those of other undertakings.
| 0 |
861,869 |
35. Account must also be taken, however, of the fact that such a method of making available to the public is to be distinguished, in principle, from traditional modes of distribution by the ubiquitous nature of the content of a website, which can be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the operator of the website in regard to its consultation beyond that person’s Member State of establishment and outside of that person’s control (see, to that effect, Joined Cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof [2010] ECR I-12527, paragraph 68, and Joined Cases C-509/09 and C-161/10 eDate Advertising and Others [2011] ECR I-10269, paragraph 45).
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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 |
861,870 |
33. With regard to objective justification of such a restriction, it is to be borne in mind that the Court has on several occasions held that planning requirements relating, on the one hand, to the object of ensuring sufficient and permanent access to a balanced range of high-quality treatment in the Member State concerned and, on the other, to the wish to control costs and avoid, so far as possible, any waste of financial, technical and human resources may justify the requirement of prior authorisation for financial responsibility on the part of the competent institution for treatment proposed in another Member State (see, to that effect, Case C‑157/99 Smits and Peerbooms [2001] ECR I‑5473, paragraphs 76 to 81; Müller-Fauré and van Riet , paragraphs 76 to 81, and Watts , paragraphs 108 to 110).
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38. In response to those arguments, it must be pointed out, first, that the Second Directive is intended, in accordance with Article 54(3)(g) of the EC Treaty, to coordinate the safeguards which are required by Member States of companies or firms within the meaning of the second paragraph of Article 58 of the Treaty with a view to making such safeguards equivalent and protecting the interests of members and others. The Second Directive thus seeks to ensure a minimum level of protection for shareholders in all the Member States.
| 0 |
861,871 |
20. As the Court has held before on many occasions, any pecuniary charge, however small, and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect, within the meaning of Article 23 EC (see Case 158/82 Commission v Denmark [1983] ECR 3573, paragraph 18; Legros and Others , paragraph 13; Case C-426/92 Deutsches Milch-Kontor [1994] ECR I-2757, paragraph 50; Joined Cases C-485/93 and C-486/93 Simitzi [1995] ECR I-2655, paragraph 15; and Case C-347/95 UCAL [1997] ECR I-4911, paragraph 18).
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32
Where the various language versions differ, the scope of the provision in question cannot be determined on the basis of an interpretation which is exclusively textual, but must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgment of 26 May 2016, Envirotec Denmark, C‑550/14, EU:C:2016:354, paragraph 28 and the case-law cited).
| 0 |
861,872 |
29. It must be pointed out that in considering equivalent two technical processes which result in an identical product, namely an outer surface of plastic, the explanatory notes in question comply with the case-law under which the decisive criterion for the tariff classification of goods lies in their objective characteristics and qualities, as defined in the relevant heading of the Common Customs Tariff and in the notes to the relevant sections or chapters (Case 200/84 Daiber [1985] ECR 3363, paragraph 13; Case C-11/93 Siemens Nixdorf [1994] ECR I-1945, paragraph 11; and Case C-339/98 Peacock [2000] ECR I-8947, paragraph 9).
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90. The intention underlying Article 87(1) EC and the private investor test is thus to prevent the recipient public undertaking from being placed, by means of State resources, in a more favourable position than that of its competitors (see, to that effect, Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 14, and Case C-6/97 Italy v Commission , paragraph 16).
| 0 |
861,873 |
19. Regarding the latter condition in particular, which is the subject of the first question referred, it is in principle for the national law of each Member State to lay down the rules in accordance with which that recognition may be granted to organisations seeking it. Member States have a discretion in that respect (see judgment in Zimmermann , C-174/11, EU:C:2012:716, paragraph 26).
|
65. Il y a lieu de rappeler qu’il appartient à la Cour, dans chaque affaire et en fonction des circonstances de l’espèce dont elle se trouve saisie ainsi que du niveau de persuasion et de dissuasion qui lui paraît requis, d’arrêter les sanctions pécuniaires appropriées, notamment pour prévenir la répétition d’infractions analogues au droit de l’Union (voir arrêts Commission/Espagne, C‑184/11, EU:C:2014:316, point 58 et jurisprudence citée, ainsi que Commission/Italie, C‑196/13, EU:C:2014:2407, point 86).
| 0 |
861,874 |
16
In that regard, it is necessary to recall that questions concerning EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is obvious that the interpretation of EU law that is sought is unrelated 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 of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 30 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 |
861,875 |
69. It follows from the foregoing considerations that the Commission has not established that the French legal order brings about a situation capable of depriving persons insured under the French system of the right to an additional reimbursement in the situation referred to in paragraph 53 of Vanbraekel and Others .
|
29 There would be discrimination if expenses necessarily included in the selling price of a product when it was sold by a sales department forming part of the manufacturer' s organization were not included when that product was sold by a company which, although financially controlled by the manufacturer, was a legally distinct entity .
| 0 |
861,876 |
70. As the Court has held, the fact that a national measure may be consistent with a provision of secondary legislation – in the present case, Article 22 of Regulation No 1408/71 – does not have the effect of removing that measure from the scope of the provisions of the Treaty. Moreover, Article 22(1) of Regulation No 1408/71 is intended to enable an insured person, authorised by the competent institution, to go to another Member State to receive treatment there which is appropriate to his condition, to receive sickness benefits in kind, on account of the competent institution but in accordance with the legislation of the State in which the services are provided, in particular where the need for the transfer arises because of the state of health of the person concerned, without that person incurring additional expenditure. On the other hand, Article 22 of Regulation No 1408/71, interpreted in the light of its purpose, is not intended to regulate and accordingly does not in any way prevent reimbursement by the Member State of affiliation, at the tariffs in force in the competent State, of costs incurred in connection with treatment provided in another Member State, even without prior authorisation ( Kohll , paragraphs 25 to 27).
|
24. In such circumstances, to the extent that the second question seeks an interpretation of Articles 3 EC, 10 EC and 81 EC, it must be declared inadmissible.
| 0 |
861,877 |
20. As regards the exemptions provided for by the Sixth Directive, it should be recalled that these constitute independent concepts of Community law which must be placed in the general context of the common system of VAT introduced by the Sixth Directive (see, inter alia, Case 235/85 Commission v Netherlands [1987] ECR 1471, paragraph 18; Case C-2/95 SDC [1997] ECR I-3017, paragraph 21, and Cimber Air , paragraph 23).
|
33. The question whether a dissemination of information has a promotional objective must be determined by undertaking a detailed examination of all the relevant circumstances of the case, which is for the national court (see, to that effect, Damgaard , paragraph 23).
| 0 |
861,878 |
36. According to settled case‑law, in proceedings under Article 234 EC, 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 Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑221/07 Zablocka‑Weyhermüller [2008] ECR I‑0000, paragraph 20; and Case C‑169/07 Hartlauer [2009] ECR I‑0000, paragraph 24).
|
52. Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.
| 0 |
861,879 |
70. It is true that the Court’s case-law provides that in proceedings under Article 258 TFEU for failure to fulfil obligations it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is therefore the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumptions (see, inter alia, Case C-494/01 Commission v Ireland [2005] ECR I-3331, paragraph 41; Commission v Portugal , paragraph 32; Case C-335/07 Commission v Finland [2009] ECR I-9459, paragraph 46; and the judgment of 10 December 2009 in Case C-390/07 Commission v United Kingdom , paragraph 43).
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28. According to the first sentence of Article 5(1) of Directive 89/104, the registered trade mark confers an exclusive right on its owner. In accordance with Article 5(1)(a), the holder of that exclusive right shall be entitled to prevent all third parties not having his consent from using in the course of trade any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered. Article 5(3) of that directive sets out in a non-exhaustive way the types of use which the owner may prohibit under Article 5(1).
| 0 |
861,880 |
74
To that end, the Court ensures that Article 4a(1) of Framework Decision 2002/584 is interpreted and applied in accordance with the requirements of Article 6 of the ECHR and the relevant case-law of the European Court of Human Rights (see, to that effect, judgments of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraphs 78 to 80, and of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629, paragraphs 87 to 89).
|
113 It is, moreover, established that, in certain circumstances, abuse may occur if an undertaking in a dominant position strengthens that position in such a way that the degree of dominance reached substantially fetters competition (Europemballage and Continental Can, paragraph 26).
| 0 |
861,881 |
36 Further, in answer to the question, it should be borne in mind that it has also consistently been held that the principle that a Member State may incur liability for loss and damage caused to individuals as a result of breaches of Community law for which it can be held responsible is inherent in the system of the Treaty (see, in particular, Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 31; Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94 Dillenkofer and Others v Germany [1996] ECR I-4845, paragraph 20; Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit International and Others v Bundesamt für Finanzen [1996] ECR I-5063, paragraph 47; and Case C-319/96 Brinkmann Tabakfabriken v Skatteministeriet [1998] ECR I-5255, paragraph 24).
|
29 As regards the substance, Article 29(1) of the Staff Regulations sets out the successive stages which must be observed when a vacant post in an institution is to be filled. Under that provision, the appointing authority must examine, in order of priority, first, the possibilities of promotion or transfer within the institution in which the vacancy arises, second, the possibility of holding competitions internal to the institution and, third, what applications for transfer have been made by officials of other institutions, before initiating a competition procedure on the basis of either qualifications or tests or of both qualifications and tests (see Case 176/73 Van Belle v Council [1974] ECR 1361, paragraphs 5 and 6).
| 0 |
861,882 |
46. It has been consistently held (see, in particular, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 240 to 243, and the case‑law cited) that the Commission enjoys a wide discretion as regards the method used for calculating fines and that it can, in this respect, take account of numerous factors, whilst complying with the ceiling on turnover laid down in Article 15(2) of Regulation No 17.
|
22 IN ANSWERING THE QUESTIONS RAISED BY THE NATIONAL COURT IT SHOULD FIRST BE EMPHASIZED THAT , AS COMMUNITY LAW STANDS AT PRESENT , THE HARMONIZATION OF NATIONAL LEGISLATION ON MEDICINAL PRODUCTS FOR HUMAN USE COVERS ONLY PROPRIETARY MEDICINAL PRODUCTS , THAT IS TO SAY MEDICINAL PRODUCTS PLACED ON THE MARKET UNDER A SPECIAL NAME AND IN A SPECIAL PACK . OTHER MEDICINAL PRODUCTS AS WELL AS PHARMACEUTICAL SUBSTANCES OR COMBINATIONS OF PHARMACEUTICAL SUBSTANCES NOT MEETING THE COMMUNITY DEFINITION OF MEDICINAL PRODUCT ARE NOT THEREFORE SUBJECT TO CONTROLS AND DO NOT REQUIRE PRIOR MARKETING AUTHORIZATION UNDER THE RELEVANT COMMUNITY RULES . SECONDLY , SUBJECT TO ARTICLE 30 ET SEQ . OF THE TREATY CONCERNING PRODUCTS IMPORTED FROM OTHER MEMBER STATES , COMMUNITY LAW DOES NOT AFFECT THE RIGHT OF MEMBER STATES TO SUBJECT SUCH SUBSTANCES TO CONTROLS OR TO REQUIRE PRIOR AUTHORIZATION IN ACCORDANCE WITH THEIR OWN NATIONAL LAW ON MEDICINAL PRODUCTS .
| 0 |
861,883 |
50. The Court of Justice has repeatedly held that the free movement of capital may be limited by national legislation only if it is justified by one of the reasons mentioned in Article 65 TFEU or by overriding reasons in the public interest within the meaning of the Court’s case-law (see the judgment of 14 February 2008 in Case C‑274/06 Commission v Spain , paragraph 35, and Commission v Poland , paragraph 55).
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53. According to the case-law, although framework decisions may not, as laid down in Article 34(2)(b) EU, entail direct effect, their binding character nevertheless places on national authorities, and particularly national courts, an obligation to interpret national law in conformity (Case C-105/03 Pupino [2005] ECR I-5285, paragraphs 33 and 34).
| 0 |
861,884 |
24
Second, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. In this regard, the Court is not bound either by the Opinion delivered by the Advocate General or by the reasoning which led to that Opinion. As a consequence, the fact that a party disagrees with the Advocate General’s Opinion, irrespective of the questions examined in the Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 31 and the case-law cited).
|
7 THE STAFF REGULATIONS COVER 'OFFICIALS' APPOINTED UNDER THE CONDITIONS PROVIDED FOR THEREIN .
| 0 |
861,885 |
15 According to the case-law of the Court, in proceedings under Article 169 of the Treaty for failure to fulfil obligations it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission's responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (Case 96/81 Commission v Netherlands, cited above, paragraph 6).
|
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).
| 0 |
861,886 |
18. The first part of the second plea and the fourth plea put forward in the present case are identical to the first part of the second plea and the fourth plea in Case C-293/00 Netherlands v Commission [2003] ECR I-12775, in which judgment has been given today. As those pleas were rejected in that case (see paragraphs 20 to 30), and in the absence of any new arguments on the part of the Netherlands Government as regards the present case, those pleas must be rejected on the same grounds.
First plea and second part of the second plea
Arguments of the parties
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23. This arrangement may be explained by the fact that the absence of just one of the conditions is liable to have a seriously deleterious effect on the success of the fight against classical swine fever.
| 1 |
861,887 |
61. However, when the national authorities send a person a report drawing attention to an irregularity in which that person is said to have played a part in connection with a specific operation, ask the person for further information concerning that operation or apply a penalty to the person in connection with that operation, those authorities adopt acts relating to investigation or legal proceedings concerning the irregularity which are sufficiently specific for the purposes of the third subparagraph of Article 3(1) of Regulation No 2988/95 (Case C‑367/09 SGS Belgium and Others [2010] ECR I‑0000, paragraph 69).
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47 CIRCULAR NO 1237 WHICH FOLLOWED ORDER NO 1236 GAVE THE EX WORKS PRICE OF SUGAR, FROM WHICH THE MAXIMUM STANDARD CONSUMER PRICE IS DIRECTLY DERIVED, SINCE IT IS THE RESULT OF ADDING TOGETHER ITEMS, OF WHICH SOME ARE TAKEN FROM THE COMMUNITY PROVISIONS FIXING THE DERIVED INTERVENTION PRICE AND THE REMAINDER FROM THE PROVISIONS ADOPTED BY CIP .
| 0 |
861,888 |
59
Furthermore, it cannot be inferred from the Court’s case-law that Article 101(1) TFEU concerns only either (i) the undertakings operating on the market affected by the restrictions of competition or indeed on the markets upstream or downstream of that market or neighbouring markets or (ii) undertakings which restrict their freedom of action on a particular market under an agreement or as a result of a concerted practice. Indeed, it follows from well-established case-law of the Court that the text of Article 101(1) TFEU refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the internal market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraphs 34 and 35 and the case-law cited).
|
33 In that regard, it is clear, first of all, that activities relating to the organisation of fairs, exhibitions and other similar initiatives meet needs in the general interest.
| 0 |
861,889 |
30. It is true that the granting of a tax credit in relation to corporation tax due in another Member State would entail, for the Federal Republic of Germany, a reduction in its tax receipts in relation to dividends paid by companies established in other Member States. However, it has been consistently held in the case-law that reduction in tax revenue cannot be regarded as an overriding reason in the public interest which may be relied on to justify a measure which is, in principle, contrary to a fundamental freedom ( Verkooijen , cited above, paragraph 59, and Manninen , paragraph 49).
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28. Secondly, as the national court has pointed out, the holiday pay linked to the retirement pension provides the recipients with means of subsistence. As the Commission has observed, the aim of that pay is, more exactly, to ensure that pensioners receive a financial supplement so that they may take a holiday.
| 0 |
861,890 |
34. It should be noted, at the outset, that, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (see, in particular, Case C‑80/94 Wielockx [1995] ECR I‑2493, paragraph 16; Case C‑35/98 Verkooijen [2000] ECR I‑4071, paragraph 32; and Case C‑422/01 Skandia and Ramstedt [2003] ECR I‑6817, paragraph 25).
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43 Enfin, s'agissant de l'argument du gouvernement autrichien concernant la difficulté d'établir, dans certains cas, le caractère trompeur d'une indication ayant trait à la santé, il y a lieu de constater qu'il appartient aux juridictions nationales, dans toutes les situations douteuses, de forger leur conviction en prenant en considération l'attente présumée d'un consommateur moyen, normalement informé et raisonnablement attentif et avisé (voir, en ce sens, arrêt du 4 avril 2000, Darbo, C-465/98, Rec. p. I-2297, point 20).
| 0 |
861,891 |
28. With regard to the exercise of the rights of the defence, to which the question submitted for a preliminary ruling refers, the Court has pointed out that this occupies a prominent position in the organisation and conduct of a fair trial and is one of the fundamental rights deriving from the constitutional traditions common to the Member States and from the international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, among which the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, is of particular importance (see, to that effect, Krombach , paragraphs 38 and 39).
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25. Nor can the plant in question be regarded on its own as a co-incineration plant, that is to say, in accordance with the first subparagraph of Article 3(5) of Directive 2000/76, as a plant whose main purpose is the generation of energy or production of material products, which either uses wastes as a regular or additional fuel or in which waste is thermally treated for the purpose of its disposal (see Case C‑251/07 Gävle Kraftvärme [2008] ECR I‑7047, paragraph 35, and Lahti Energia , paragraph 26).
| 0 |
861,892 |
42 As the Court has held (see the judgment in Joined Cases C-60 and C-61/84 Cinéthèque v Fédération Nationale des Cinémas Français [1985] ECR 2605, paragraph 25, and the judgment in Case C-12/86 Demirel v Stadt Schwaebisch Gmund [1987] ECR 3719, paragraph 28), it has no power to examine the compatibility with the European Convention on Human Rights of national rules which do not fall within the scope of Community law. On the other hand, where such rules do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the European Convention on Human Rights.
|
38 By virtue of that principle, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution intends to pursue (Schräder, cited above, paragraph 22).
| 0 |
861,893 |
24 First of all, it should be recalled that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-166/97 Commission v France [1999] ECR I-1719, paragraph 18, and Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 14). Thus, in the present case, measures adopted by Ireland after 8 June 1998 cannot be taken into account.
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10 TO INTERPRET THIS PROVISION IT IS NECESSARY TO EXAMINE IT IN THE LIGHT OF THE GENERAL STRUCTURE BOTH OF THE ATHENS AGREEMENT, OF WHICH IT FORMS PART, AND OF THE TOTALITY OF THE PROVISIONS CONTAINED IN THE PROTOCOL ITSELF .
| 0 |
861,894 |
41 The unconditional right to take up any employment freely chosen by the person concerned, untramelled, moreover, by any priority for workers of Member States, provided for by the second indent of the first paragraph of Article 7 of Decision No 1/80 would be rendered wholly meaningless if the competent national authorities were able to impose conditions or restrictions of any sort on the application of the specific rights which were conferred on migrant workers by that decision (see inter alia, by analogy, Case C-36/96 Günaydin [1997] ECR I-5143, paragraphs 37 to 39 and 50).
|
42. The Commission submits that, where urban, suburban and regional transport services have not been excluded from the scope of Regulation No 1191/69 under the second subparagraph of Article 1(1), the national legislature must regulate the operation of a scheduled service either by imposing public service obligations, in accordance with Sections II to IV of the regulation, or by means of contracts providing for those obligations and complying with the provisions of Section V of the regulation.
Findings of the Court
| 0 |
861,895 |
72. In paragraphs 57 and 58 of Kügler , cited above, the Court added that, in order to determine which organisations should be recognised as charitable within the meaning of Article 13A(1)(g) of the Sixth Directive, the national authorities should, in accordance with Community law and subject to review by the national courts, take a number of factors into consideration. Those factors include the public interest of the activities of the taxable person in question, the fact that other taxable persons carrying on the same activities already have similar recognition, and the fact that the costs incurred for the treatment in question may be largely met by health insurance schemes or other social security bodies.
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57. However, it follows from Article 16 of Directive 96/92 that although, for the organisation of access to the system, Member States may choose between the negotiated access procedure and the single buyer procedure, both sets of procedure must be operated in accordance with objective, transparent and non-discriminatory criteria.
| 0 |
861,896 |
78. However, it is also clear from settled case-law that the conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 87 EC are not met if the recipient public undertaking could, in circumstances which correspond to normal market conditions, obtain the same advantage as that which has been made available to it through State resources. In the case of public undertakings, that assessment is made by applying, in principle, the private investor test (see, to that effect, Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 20; Case C-482/99 France v Commission [2002] ECR I-4397, paragraphs 68 to 70; and Comitato ‘Venezia vuole vivere’ and Others v Commission, paragraph 91 and the case-law cited).
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36. "Genuine use" must therefore be understood to denote use that is not merely token, serving solely to preserve the rights conferred by the mark. Such use must be consistent with the essential function of a trade mark, which is to guarantee the identity of the origin of goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin.
| 0 |
861,897 |
50. Concerning those two forms of investment, the Court has stated that national measures must be regarded as ‘restrictions’ within the meaning of Article 56(1) EC if they are likely to prevent or limit the acquisition of shares in the undertakings concerned or to deter investors of other Member States from investing in their capital (see Commission v Portugal , paragraphs 45 and 46; Case C‑483/99 Commission v France [2002] ECR I‑4781, paragraph 40; Commission v Spain , paragraphs 61 and 62; Case C‑98/01 Commission v United Kingdom [2003] ECR I‑4641, paragraphs 47 and 49; Case C‑174/04 Commission v Italy [2005] ECR I‑4933, paragraphs 30 and 31; and Commission v Netherlands , paragraph 20).
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34. In the second place, it must be stated that, in a commercial agency contract, it is the commercial agent who performs the obligation which characterises that contract and who, for the purpose of applying the second indent of Article 5(1)(b) of the regulation, provides the services.
| 0 |
861,898 |
71. As the Court has already held, where the proprietor of a trade mark affixes that mark to items that it gives away, free of charge, in order to promote the sale of its goods, those items are not distributed in any way with the aim of them penetrating the market (see Case C‑495/07 Silberquelle [2009] ECR I-137, paragraphs 20 to 22). Where such items are supplied free of charge, they thus cannot, as a rule, be regarded as being put on the market by the trade mark proprietor.
|
31 However, that provision cannot be construed as reserving to the Member States the power to adapt as they please the rules governing Turkish workers already integrated in their labour force, permitting them to adopt unilaterally measures preventing certain categories of workers who already satisfy the conditions of Article 6(1) from benefiting from the progressively more extensive rights enshrined in the three indents of that paragraph.
| 0 |
861,899 |
73. First, as is apparent from the provisions of Directives 77/504, 87/328 and 91/174, referred to in paragraphs 3 to 6 and 15 above and paragraph 33 of Centre d’insémination de la Crespelle , the pedigree conditions, so far as intra‑Community trade in bovine semen from pure-bred animals is concerned, have been fully harmonised at Community level.
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41. In that connection, it must be observed that the sole fact that judges are treated as judicial office holders is insufficient in itself to exclude the latter from enjoying the rights provided for by that framework agreement.
| 0 |
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