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18 It is clear from both the wording and the scheme of Article 177 of the Treaty that a national court or tribunal is not empowered to bring a matter before the Court of Justice by way of a reference for a preliminary ruling unless a case is pending before it, in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (see, to that effect, Case 338/85 Pardini v Ministero del Commercio con l'Estero [1988] ECR 2041, paragraph 11, and Joined Cases C-422/93, C-423/93 and C-424/93 Zabala Erasun and Others v Instituto Nacional de Empleo [1995] ECR I-1567, paragraph 28).
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55
Therefore, it seems that those checks are authorised irrespective of the behaviour of the person checked and of circumstances giving rise to a risk of breach of public order.
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861,901 |
34. By contrast, the Court dismissed an objection of inadmissibility based on a claim that the alleged infringement had ceased in a situation in which the procedures for the award of contracts had been conducted entirely before the date on which the period laid down in the reasoned opinion expired, since the contracts had not been fully performed by that date (Case C-328/96 Commission v Austria [1999] ECR I-7479, paragraphs 43 to 45).
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14 IN ORDER TO REPLY TO THE QUESTION PUT TO THE COURT IT MUST BE POINTED OUT IN THE FIRST PLACE THAT THE COURT HAS ALREADY STATED ON NUMEROUS OCCASIONS THAT THE ABOLITION OF RESTRICTIONS ON TRADE BETWEEN MEMBER STATES CONSTITUTES A FUNDAMENTAL PRINCIPLE OF THE COMMON MARKET APPLICABLE TO ALL GOODS , WITH THE RESULT THAT EXCEPTIONS , WHICH IN ANY EVENT MUST BE STRICTLY CONSTRUED , MUST BE CLEARLY LAID DOWN ( SEE THE JUDGMENT OF 20 APRIL 1978 IN JOINED CASES 80 AND 81/77 SOCIETE LES COMMISSIONNAIRES REUNIS SARL V RECEVEUR DES DOUANES ( 1978 ) ECR 927 AND THE CASES REFERRED TO THEREIN ).
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861,902 |
81. It must be noted at the outset that it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, secondly, to assess those facts. However, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, inter alia, judgment in CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 41 and the case-law cited).
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64. It is in its capacity as the Member State in which the shareholder is resident that, when a resident company pays dividends to its resident ultimate shareholders, that Member State grants to such shareholders, on payment of the dividends, a tax credit equal to the fraction of the advance corporation tax paid by the company which made the distributed profits.
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62
In any event, it must be pointed out that the obligation of the national court to ensure the full effectiveness of EU law does not always result in the annulment of a contested decision, where the latter was adopted in infringement of the rights of the defence. According to settled case-law, an infringement of the rights of the defence, in particular the right to be heard, results in the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different (judgments of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 38, and of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraphs 78 and 79).
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56
In those circumstances, the objective of ensuring the successful integration of third-country nationals in the Member State concerned, referred to by the Danish Government, may constitute an overriding reason in the public interest, as the Advocate General noted in point 35 of his Opinion.
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861,904 |
65. So far as concerns conservation objectives, it is apparent from paragraphs 20 and 21 of the judgment in Case C-374/98 Commission v France that the protective legal status which SPAs must obtain does not mean that those objectives have to be specified for each species considered separately. Nor, having regard to what is stated in paragraphs 60 and 61 of the present judgment, can it be held in any event that the conservation objectives must be contained in the same legal measure as that relating to the protected species and habitats of a particular SPA.
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178. As a general principle of Community law, such a right is applicable in the context of proceedings brought against a Commission decision ( Baustahlgewebe v Commission , paragraph 21, and Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I-0000, paragraph 45).
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861,905 |
15 In its judgment in Biehl, the Court deduced from the foregoing that Article 48(2) of the Treaty precluded a Member State from providing in its tax legislation, as in Article 154(6) of the LIR, that sums deducted by way of tax from the salaries and wages of employed persons who were nationals of a Member State and were resident taxpayers for only part of the year because they had taken up residence in the country or left it during the course of the tax year were to remain the property of the Treasury and were not repayable. Even though the criterion of permanent residence in the national territory in connection with obtaining any repayment of excess amounts of tax deducted applied irrespective of the nationality of the taxpayer concerned, there was a risk that it would work in particular against taxpayers who were nationals of other Member States, since it was often those persons who in the course of the year left the country or took up residence there.
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27. However, according to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, to that effect, judgment in SGAE , C‑306/05, EU:C:2006:764, paragraph 34).
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69. With regard to judicial review of the conditions referred to in the previous paragraph, it should be noted that the Community legislature must be allowed a broad discretion in an area such as that in issue in the present case, which involves political, economic and social choices on its part, and in which it is called on to undertake complex assessments. Consequently, the legality of a measure adopted in that area can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue (see, in this regard, Arnold André , paragraph 46, Swedish Match , paragraph 48, and Alliance for Hatural Health and Others , cited above, paragraph 52).
Observations submitted to the Court
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48. With regard to judicial review of the conditions referred to in the previous paragraph, the Community legislature must be allowed a broad discretion in an area such as that concerned in the present case, which involves political, economic and social choices on its part, and in which it is called on to undertake complex assessments. Only if a measure adopted in this field is manifestly inappropriate in relation to the objective which the competent institutions are seeking to pursue can the lawfulness of such a measure be affected (see, to that effect, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 58; Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraphs 55 and 56; Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, paragraph 61; and British American Tobacco (Investments) and Imperial Tobacco , paragraph 123).
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16 The plaintiffs in the main action argue, however, that Mr Thévenon' s pension has to be calculated in accordance with the provisions of the Franco-German convention, since the Court held on similar facts in Roenfeldt that, in the case of migrant workers, bilateral social security conventions must continue to apply, even after the entry into force of Regulation No 1408/71, where an insured person is thereby placed in a more favourable position.
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63. As the Court has already held, that provision gives the Commission general competence to collect any information needed for the achievement of the tasks which have been entrusted to it by the TFEU, so that the Council is not obliged to base acts relating to that activity on the various Treaty provisions which confer specific tasks on the Commission (see, to that effect, Germany v Council , paragraphs 19 and 20).
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861,908 |
44. According to similarly established case-law of the Court, the recognition of such a right requires that the interested person should fulfil all the conditions, as to both form and substance, imposed by the national legislation of that State in order to be able to exercise that right, which may in some cases include the condition that a prior application must have been made for the payment of such benefits (see, by analogy, Ragazzoni , paragraphs 8 and 9; Salzano , paragraphs 7 and 10; Case 153/84 Ferraioli [1986] ECR 1401, paragraph 14; Case C-117/89 Kracht [1990] ECR I-2781, paragraph 11; and Case C-119/91 McMenamin [1992] ECR I‑6393 paragraph 26).
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66. Il convient de rappeler que les autorités nationales compétentes sont tenues, en ce qui concerne les opérations de stockage temporaire, de veiller au respect des obligations résultant de l’article 13 de la directive 2008/98, qui prévoit que les États membres prennent les mesures nécessaires pour assurer que les déchets seront valorisés ou éliminés sans mettre en danger la santé de l’homme et sans que soient utilisés des procédés ou des méthodes susceptibles de porter préjudice à l’environnement. Dans la mesure où les déchets, même stockés temporairement, peuvent causer des dommages importants à l’environnement, il y a lieu en effet de considérer que les dispositions des articles 13 et 36, paragraphe 1, de cette directive visent à mettre en œuvre le principe de précaution, et sont également applicables à l’opération de stockage temporaire (voir, en ce sens, arrêt Commission/Grèce, C‑286/08, EU:C:2009:543, point 72 et jurisprudence citée).
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861,909 |
51. In that context, it must also be recalled that the Court has held, first, that the exemption of products covered by Article 27(1) of Directive 92/83 is the rule and refusal is the exception, and, second, that the power granted to Member States by that provision to lay down conditions for the purpose of ‘ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse’ cannot detract from the unconditional nature of the obligation imposed by that provision to grant exemption (see Italy v Commission , paragraph 50, and Profisa , paragraph 18).
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57. It must be held that the estimate submitted by the Romanian Government does not in itself allow the conclusion to be drawn that the Romanian economy faces the risk of being adversely affected in a serious manner by the repercussions of the present judgment. The condition relating to the existence of serious difficulties cannot, therefore, be considered to be satisfied.
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861,910 |
44. Where national legislation falling within an area which has not been harmonised at European Union level is applicable without distinction to all persons and undertakings operating in the territory of the Member State concerned, it may, notwithstanding its restrictive effect on the freedom to provide services, be justified where it meets an overriding requirement in the public interest and that interest is not already safeguarded by the rules to which the service provider is subject in the Member State in which he is established and in so far as it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it ( Arblade and Others , paragraphs 34 and 35; Case C-224/04 Commission v Germany [2006] ECR I-885, paragraph 31; and Case C-219/08 Commission v Belgium [2009] ECR I-9213, paragraph 14).
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124. Le Tribunal ayant jugé, au point 305 de l’arrêt attaqué, que la Commission n’avait pas pu ouvrir la procédure formelle d’examen avant ladite date à défaut de disposer des informations nécessaires pour ouvrir la procédure formelle d’examen, les Cámaras de Comercio sont recevables à critiquer cette constatation, puisque celle-ci a été effectuée pour la première fois dans l’arrêt attaqué (voir arrêt du 21 février 2008, Commission/Girardot, C‑348/06 P, Rec. p. I‑833, point 50 et jurisprudence citée). En outre, la question de savoir si c’est à bon droit que le Tribunal a fait ladite constatation est liée à celle du caractère raisonnable ou non de la durée de la procédure préliminaire d’examen, qui concerne une question de droit pouvant être soumise au contrôle de la Cour dans le cadre d’un pourvoi et qui, partant, est recevable.
– Sur le fond
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861,911 |
36 It is also settled case-law that the concept of matters relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the Brussels Convention covers all actions which seek to establish the liability of a defendant and are not matters relating to a contract within the meaning of Article 5(1) of that convention (see, in particular, Kalfelis, cited above, paragraph 17; Reichert and Kockler, cited above, paragraph 16; Case C-51/97 Réunion Européenne and Others [1998] ECR I-6511, paragraph 22, and Case C-96/00 Gabriel [2002] ECR I-0000, paragraph 33).
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60. Furthermore, it should be pointed out that, where a Member State is faced with an exceptional situation not allowing it to collect or treat waste water, it remains obliged to adopt appropriate measures to limit pollution under footnote 1 of Annex I to Directive 91/271.
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861,912 |
18. Secondly, it is settled case-law that the first subparagraph of Article 8(1) of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8), which is essentially reproduced in the first subparagraph of Article 8(1) of Directive 98/34, imposes on Member States the duty to notify the Commission of any draft technical regulation (see, in particular, Case C-289/94 Commission v Italy [1996] ECR I-4405, paragraphs 52 and 53, and Case C-145/97 Commission v Belgium [1998] ECR I-2643, paragraph 10).
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42. Nevertheless, the Court considers that it has the task of examining the circumstances in which cases are referred to it by national courts, in order to assess whether it has jurisdiction. The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give advisory opinions on general or hypothetical questions (see, inter alia, Mangold , paragraph 36, and the case-law cited).
| 0 |
861,913 |
119. In that regard, the Court has held, furthermore, that it follows from that provision that, under the system introduced by Regulation No 2081/92, where Member States have the power to adopt decisions, even of a provisional nature, which derogate from the provisions of the regulation, that power is derived from express rules ( Chiciak and Fol , paragraph 32).
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47. Furthermore, it must be borne in mind that the Court must take account, under the division of jurisdiction between the Community judicature and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see, inter alia, Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 10, and Case C‑136/03 Dörr and Ünal [2005] ECR I‑4759, paragraph 46, Conseil général de la Vienne , paragraph 24).
| 0 |
861,914 |
34 In this regard, it is appropriate to recall the case-law of the Court of Justice (see, in particular, Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 34, and Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 62) according to which, although as a general rule the Community judicature undertakes a comprehensive review of the question whether or not the conditions for the application of Article 85(1) are met, its review of complex economic appraisals made by the Commission is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
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70 The Netherlands authorities' practice of accepting a fax is clearly not compatible with that provision. It created a risk of unlawful payment of subsidies making it possible, after an inaccuracy had been found during a customs check made on the basis of a fax, for the trader to lodge another declaration containing the correct information.
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861,915 |
54. The purpose of that progressive rather than immediate introduction of those payments in the new Member States was not to slow down the restructuring of the agricultural sector and not to create significant disparities in income or social imbalances by the granting of aid not proportionate to the income level of farmers and the general population (see, to that effect, judgments in Bábolna , C‑115/10, EU:C:2011:376, paragraph 34, and Poland v Council , C‑273/04, EU:C:2007:622, paragraph 69).
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31 Charges with no upper limit which increase directly in proportion to the nominal value of the capital raised cannot, by their very nature, amount to duties paid by way of fees or dues within the meaning of the Directive. Even if there may be a link in some cases between the complexity of a registration and the amount of capital raised, the amount of such charges will generally bear no relation to the costs actually incurred by the authority on the registration formalities.
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861,916 |
21. It should be noted at the outset that, according to well-established case‑law, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with Community law (see, inter alia, Joined Cases C-397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 37; Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 29; Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I-0000, paragraph 40; and Case C-524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I-0000, paragraph 25).
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12 FIRST , THE APPLICANTS CLAIM THAT THE COMMISSION , IN ARTICLES 1 AND 2 OF ITS DECISION , FOUND THAT THE TWO CONCERTED PRACTICES HAD BEGUN AT THE END OF 1975 , THAT THE CONCERTED PRACTICE BETWEEN MDF , PIONEER AND MELCHERS HAD CEASED IN FEBRUARY 1976 AND THE CONCERTED PRACTICE BETWEEN MDF AND SHRIRO HAD CONTINUED UNTIL THE END OF 1977 , WHEREAS , IN ITS STATEMENT OF OBJECTIONS , THE COMMISSION WAS PROPOSING TO FIND THAT THE TWO INFRINGEMENTS HAD ONLY SUBSISTED DURING THE PERIOD ' ' LATE JANUARY/EARLY FEBRUARY 1976 ' ' .
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861,917 |
48. According to that case-law, although periods of professional inactivity are inherent in on-call duty performed by workers where they are required to be physically present on the employer’s premises, given that, unlike during normal working hours, the need for urgent interventions during such duty cannot be planned in advance and the activity actually performed depends on the circumstances, the decisive factor in considering that the characteristic features of the concept of ‘working time’ within the meaning of Directive 93/104 are present in the case of such on-call duty performed by a worker at his actual workplace is that he is required to be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. Those obligations must therefore be regarded as coming within the ambit of the performance of that worker’s duties (see Simap , paragraph 48, and Jaeger , paragraphs 49 and 63).
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63. According to the Court, the decisive factor in considering that the characteristic features of the concept of " working time" within the meaning of Directive 93/104 are present in the case of time spent on call by doctors in the hospital itself is that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need. In fact, as may be inferred from paragraph 48 of the judgment in Simap , those obligations, which make it impossible for the doctors concerned to choose the place where they stay during waiting periods, must be regarded as coming within the ambit of the performance of their duties.
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184. In that regard, as the Advocate General observed at point 246 of her Opinion, a reduction of a fine, as provided for in the 2002 Leniency Notice, is justified only where an undertaking provides information to the Commission without being asked to do so. It is established case-law that the conduct of the undertaking concerned must not only facilitate the Commission’s task of establishing the existence of the infringement but also reveal a genuine spirit of cooperation (see, to that effect, judgments in Dansk Rørindustri and Others v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 395 and 396, and Schenker & Co. and Others , C‑681/11, EU:C:2013:404, paragraph 48).
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395. Furthermore, and above all, a reduction under the Leniency Notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate genuine cooperation on its part.
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861,919 |
63
In the light of those circumstances, the Court held that it follows from the requirements of legal certainty that it is not possible for a recipient of aid, who could have contested the Commission’s decision relating to that aid and who has allowed the mandatory time limit laid down in that regard by the provisions of the Treaty to expire, to call in question the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities to implement that decision (see, to that effect, judgment of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 12 and 17).
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17 It follows from the same requirements of legal certainty that it is not possible for a recipient of aid, forming the subject-matter of a Commission decision adopted on the basis of Article 93 of the Treaty, who could have challenged that decision and who allowed the mandatory time-limit laid down in this regard by the third paragraph of Article 173 of the Treaty to expire, to call in question the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities for implementing that decision.
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36. En effet, la justification du renvoi préjudiciel est non pas la formulation d’opinions consultatives sur des questions générales ou hypothétiques, mais le besoin inhérent à la solution effective d’un contentieux (voir, notamment, arrêts García Blanco, EU:C:2005:34, point 28, et Pohotovosť, EU:C:2014:101, point 29 et jurisprudence citée).
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17. That difference in the tax treatment of dividends according to the UCITS’ place of residence may discourage, on the one hand, non‑resident UCITS from investing in companies established in France and, on the other, investors resident in France from acquiring shares in non‑resident UCITS.
| 0 |
861,921 |
145. 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 Court’s Rules of Procedure 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 Case C‑131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I‑7795, paragraph 49, and Case C‑227/04 P Lindorfer v Council [2007] ECR I‑6767, paragraph 45).
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30. The adjustment provided for in those articles of the Directive is an integral part of the VAT deduction scheme established by that directive.
| 0 |
861,922 |
52
Actual exercise of freedom of establishment thus entails, in particular, as a necessary adjunct to that freedom, that the subsidiary, agency or branch set up by a legal person established in another Member State must be able, where relevant, and if the activity which it proposes to carry out in the host Member State so requires, to take on workers in that Member State (see, to that effect, judgment of 10 July 1986, Segers , 79/85, EU:C:1986:308, paragraph 15).
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75. However, it must be observed that, although de facto unions and legally recognised unions, such as marriage, may display similarities in certain respects, those similarities do not necessarily mean that those two types of union must be treated in the same way.
| 0 |
861,923 |
33. It follows that the Austrian tax legislation which makes application of the definitive tax rate of 25%, or of the tax rate reduced by half, to revenue from capital subject to the condition that such revenue must be of Austrian origin does not relate to a difference in situation within the meaning of Article 73d(1)(a) of the Treaty between revenue from capital of Austrian origin and revenue from capital originating in another Member State (see, to that effect, Case C-107/94 Asscher [1996] ECR I-3089, paragraphs 41 to 49, and Case C-234/01 Gerritse [2003] ECR I-5933, paragraphs 47 to 54).
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39. For the purpose of replying to that question, it is appropriate to note, first, that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraph 25; Case C-168/05 Mostaza Claro [2006] ECR I-10421, paragraph 25; and Case C-40/08 Asturcom Telecomunicaciones [2009] ECR I-9579, paragraph 29).
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861,924 |
66 The Court then said that, according to information provided by the Italian Government and not disputed, a time-limit similar to that at issue applied also to actions for repayment of certain indirect taxes, and that it did not appear from the wording of Article 13 of Decree No 641/1972 that it applied only to actions based on Community law. The Court also said that it was clear from the case-law of the Corte suprema di cassazione that the time-limits relating to taxes applied also to actions for repayment of charges or dues levied under laws that had been declared incompatible with the Italian constitution (Edis, paragraph 38).
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39. When the proprietor of the earlier mark has shown that there is either actual and present injury to its mark for the purposes of Article 4(4)(a) of the Directive or, failing that, a serious risk that such injury will occur in the future, it is for the proprietor of the later mark to establish that there is due cause for the use of that mark.
Point (i) of Question 1 and Question 2
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24 In this connection it should be remembered that Article 40 of Regulation No 2392/89 is aimed primarily at prohibiting the misuse of brand names (Case C-456/93 Langguth [1995] ECR I-1737, paragraph 29). As the Court of Justice has held, in connection with Council Regulation (EEC) No 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape musts (OJ 1979 L 54, p. 99), subsequently repealed and replaced by Regulation No 2392/89, it is necessary to prevent in the marketing of wine all practices which are of such a nature as to create false appearances (Case 56/80 Weigand [1981] ECR 583, paragraph 18).
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42. It should also be pointed out that the Spanish Government does not deny that the definitive amount of the compensatory aid for bananas marketed in 1995 was established ─ and the balance paid ─ in 1996.
| 0 |
861,926 |
38 Secondly, the Court has consistently held that a Member State cannot rely on practical difficulties in order to justify its failure to adopt in time appropriate measures to prohibit fishing. On the contrary, it is required to overcome those difficulties by adopting such measures (see Case C-333/99 Commission v France, cited above, paragraph 44).
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35 If, as in the main proceedings in the present cases, the grant of child-raising allowance ° which is a family benefit ° were subject to the condition that the spouse of a worker, who is not resident in Germany, must be employed within the territory to which the BErzGG applies, the worker could be deterred from exercising his right to freedom of movement.
| 0 |
861,927 |
24
Therefore, the obligation to carry out an assessment of proportionality may be regarded as making the criteria for the application of the optional grounds of exclusion more flexible, as provided for by national law, within the meaning of the judgments of 9 February 2006, La Cascina and Others (C‑226/04 and C‑228/04, EU:C:2006:94, paragraph 21), and of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici (C‑358/12, EU:C:2014:2063, paragraphs 35 and 36). In accordance with Article 45(2), second subparagraph, of Directive 2004/18 such flexibility, provided for by national law, should comply with EU law and, in particular, with the principles of equal treatment and transparency. In the case in the main proceedings, the Ministry, as the contracting authority, after establishing that the tenderer had been guilty of grave professional misconduct, assessed, in accordance with the principle of proportionality, whether the professional honesty and reliability of the Tender Group could be guaranteed in the performance of the contract concerned. The Tender Group has taken measures to that effect.
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8 AS STATED ABOVE , THE APPLICANT FURTHER REQUESTED THE COURT TO HOLD THAT SHE WAS ENTITLED TO INTEREST ON THE SUMS DUE TO HER BY WAY OF ARREARS OF REMUNERATION .
DEFAULT INTEREST
| 0 |
861,928 |
53. It is true that those provisions differ in terms of the degree of similarity required. Whereas the implementation of the protection provided for under Article 8(1)(b) of Regulation No 40/94 is conditional upon a finding of a degree of similarity between the marks at issue such that there exists a likelihood of confusion between them on the part of the relevant section of the public, the existence of such a likelihood is not necessary for the protection conferred by Article 8(5) of that regulation. Accordingly, the types of injury referred to in Article 8(5) may be the consequence of a lesser degree of similarity between the earlier and later marks, provided that it is sufficient for the relevant section of the public to make a connection between those marks, that is to say, to establish a link between them (see, to that effect, Adidas-Salomon and Adidas Benelux , paragraphs 27, 29 and 31, and Intel Corporation , paragraphs 57, 58 and 66).
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22. The deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures complete neutrality of taxation of all economic activities, whatever the purpose or results of those activities, provided that they are themselves subject to VAT (see Case 268/83 Rompelman [1985] ECR 655, paragraph 19; Case C‑37/95 Ghent Coal Terminal [1998] ECR I‑1, paragraph 15; Gabalfrisa and Others , paragraph 44; Case C‑32/03 Fini H [2005] ECR I‑1599, paragraph 25; Centralan Property , paragraph 51; and Mahagében and Dávid , paragraph 39).
| 0 |
861,929 |
54. That conclusion contradicts the case-law of the Court of Justice, in particular the judgment in France v Commission (C‑241/94, EU:C:1996:353, paragraphs 23 and 24), in which the Court of Justice found that, by virtue of its aim and general scheme, the system at issue was liable to place certain undertakings in a more favourable situation than others since the competent authority enjoyed a degree of latitude which enabled it to adjust its financial assistance having regard to various considerations such as, in particular, the choice of the beneficiaries, the amount of financial assistance and the conditions under which it was provided. It also disregarded the judgment in P (C‑6/12, EU:C:2013:525, paragraph 27), in which the Court of Justice held that, when national legislation confers a discretion on national authorities with regard to the detailed rules for the application of the measure at issue, the decisions of those authorities lack selectivity only if that discretion is limited by objective criteria, which are not connected with the system put in place by the legislation in question.
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159. It follows that, in order to be capable of preventing registration of a new sign, the sign relied on in opposition must actually be used in a sufficiently significant manner in the course of trade and its geographical extent must not be merely local, which implies, where the territory in which that sign is protected may be regarded as other than local, that the sign must be used in a substantial part of that territory.
| 0 |
861,930 |
22. Restrictions on the freedom to provide services are national measures which prohibit, impede or render less attractive the exercise of that freedom (see, inter alia, Case C-330/07 Jobra [2008] ECR I-9099, paragraph 19, and Case C-287/10 Tankreederei I [2010] ECR I-14233, paragraph 15).
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31 In those circumstances, there is no need to consider the validity of that regulation.
The validity of Regulations Nos 711/95, 1066/95 and 1067/95
| 0 |
861,931 |
34. According to that case-law, the Member States may confer on the universal postal service provider, as an undertaking entrusted to operate services of general economic interest, exclusive rights likely to restrict competition or even exclude all competition when that is necessary in order to allow it to perform its task of general interest and in particular to have the benefit of economically acceptable conditions (Case C-320/91 Corbeau [1993] ECR I-2533, paragraphs 14 to 16).
|
45. Although the Member States are generally responsible for fixing the use-by date of products covered by Directive 92/46, they must refrain from taking any measures liable seriously to compromise achievement of the result prescribed by the directive.
| 0 |
861,932 |
34. Moreover, the Court held in paragraph 26 of the judgment in Thames Water Utilities that it is clear from Article 2(1)(b)(iv) of Directive 75/442 that the Community legislature intended expressly to classify waste waters as ‘waste’ within the meaning of the directive, while providing that that waste may, in certain circumstances, escape its scope and come within that of other legislation.
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30. The fact that a resident company has been granted a loan by a non‑resident company on terms which do not correspond to those which would have been agreed upon at arm’s length constitutes, for the Member State in which the borrowing company is resident, an objective element which can be independently verified in order to determine whether the transaction in question represents, in whole or in part, a purely artificial arrangement, the essential purpose of which is to circumvent the tax legislation of that Member State. In that regard, the question is whether, had there been an arm’s-length relationship between the companies concerned, the loan would not have been granted or would have been granted for a different amount or at a different rate of interest ( Test Claimants in the Thin Cap Group Litigation , paragraph 81).
| 0 |
861,933 |
27 In that respect, it is sufficient to point out that the Court of Justice has already held in Commission v Spain, cited above, paragraph 20, that the requirement to provide remuneration for the periods of training in specialised medicine laid down in Article 2(1)(c) of the `coordination' directive, applies only to medical specialties which are common to all the Member States or to two or more Member States and are mentioned in Article 5 or Article 7 of the `recognition' directive.
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42. Such a right in fact strengthens the working of the EU competition rules and discourages agreements or practices, frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before national courts can make a significant contribution to the maintenance of effective competition in the EU ( Courage and Crehan , paragraph 27).
| 0 |
861,934 |
17. According to settled case‑law, freedom of establishment, which Article 43 EC grants to Member State nationals and which includes the right for them to take up and pursue activities as self-employed persons and to set up and manage undertakings, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 48 EC, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Union, the right to exercise their activity in the Member State concerned through a subsidiary, branch or agency (see, inter alia, Case C‑466/03 Marks & Spencer [2005] ECR I‑10837, paragraph 30; Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraph 42; and Case C‑314/08 Filipiak [2009] ECR I‑0000, paragraph 59).
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84. As to the extent of any loss, by reason of their condition, fish which show clinical signs of disease have no marketable value. So far as concerns fish which have reached a commercial size and could have been marketed or processed for human consumption since they were not showing, when slaughtered, any clinical sign of disease, any loss eventually suffered by farmers by reason of the immediate slaughter of that kind of fish arises from the fact that they have been unable to choose the most advantageous time for their sale. In fact, because of the risk of their presenting clinical signs of disease in future, it is impossible to determine a more advantageous time for their sale. So far as all other types of fish are concerned, it is not possible to establish whether they have any marketable value either, because of the risk that in the future they will develop clinical signs of disease.
| 0 |
861,935 |
52. That conclusion is borne out by the judgment in Case C-271/06 Netto Supermarkt [2008] ECR I-771, paragraphs 27 and 29, concerning VAT exemption for supplies of goods for export to a destination outside the European Union, in which the Court held that a supplier must be able to rely on the lawfulness of the transaction that he carries out without risking the loss of his right to exemption from VAT, if he is in no position to recognise – even by exercising due commercial care – that the conditions for the exemption were in fact not met, because the export proofs provided by the purchaser had been forged.
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62. According to the Court, such an interpretation of Articles 60 EC and 301 EC would give those provisions an excessively broad meaning and would fail to take any account at all of the requirement, imposed by their very wording, that the measures decided on the basis of those provisions must be taken against third countries ( Kadi and Al Barakaat International Foundation v Council and Commission , paragraph 168).
| 0 |
861,936 |
En effet, il ressort d’une jurisprudence constante de la Cour qu’un État membre ne saurait exciper de situations de son ordre interne pour justifier le non-respect des obligations et des délais résultant du droit de l’Union (arrêt du 10 juillet 2014, Commission/Belgique, C‑421/12, EU:C:2014:2064, point 43).
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72 It must also be ascertained, in the light of all the relevant factors and taking into account the possibility of achieving the social policy aim in question by other means, whether such an aim appears to be unrelated to any discrimination based on sex and whether the disputed rule, as a means to its achievement, is capable of advancing that aim.
| 0 |
861,937 |
37. Secondly, it follows from established case-law that, although it is true that Article 101 TFEU is, in itself, concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, that article, read in conjunction with Article 4(3) EU, none the less requires Member States not to introduce or maintain in force measures, whether legislative or regulatory, which may render ineffective the competition rules applicable to undertakings. Such is the case where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators the responsibility for taking decisions which affect the economic sphere (see, to that effect, Case C‑35/96 Commission v Italy [1998] ECR I‑3851, paragraphs 53 and 54; Case C‑266/96 Corsica Ferries France [1998] ECR I‑3949, paragraphs 35, 36 and 49; and Albany , paragraph 65).
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84. It is for the national court to carry out an overall assessment of all the relevant circumstances, which include the labelling of the bottle in order to assess, more specifically, whether the producer of the drink bearing the trade name can be regarded as unfairly competing with the proprietor of the trade mark (see, to that effect, Gerolsteiner Brunnen , paragraphs 25 and 26).
| 0 |
861,938 |
37. A procedural irregularity of this nature could entail annulment of the act ultimately adopted only if, were it not for that irregularity, the procedure could have led to a different result (see, to that effect, Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 47; Case 128/86 Spain v Commission [1987] ECR 4171, paragraph 25; and Case C‑142/87 Belgium v Commission (‘Tubemeuse’) [1990] ECR I-959, paragraph 48).
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26. It thus appears from the wording of Article 21 of the Convention that it refers only to the applicants' respective claims in each of the sets of proceedings, and not to the defence which may be raised by a defendant.
| 0 |
861,939 |
30. At the outset, it must be recalled that it is settled case-law that Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against service providers who are established in another Member State, but also the abolition of any restriction, even if it applies withou t distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State, where he lawfully provides similar services (see, in particular, Case C‑164/99 Portugaia Construções [2002] ECR I‑787, paragraph 16).
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62. Indeed, it must be accepted that a simplification measure implies, by definition, a more general approach than that of the rule which it replaces and thus will not necessarily reflect the exact situation of each taxable person.
| 0 |
861,940 |
36
In that regard, it must be borne in mind, first, that the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all tenderers must be subject to the same conditions. Second, the obligation of transparency, which is its corollary, is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. That obligation implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment of 6 November 2014 in Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 44 and the case-law cited).
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30. As a preliminary point, it should be borne in mind that the protection of trade marks is characterised, within the European Union, by the coexistence of several systems of protection.
| 0 |
861,941 |
22
It is settled case-law that the third sentence of Article 11 of Directive 2004/48, like Article 8(3) of Directive 2001/29 to which it refers, obliges Member States to ensure that an intermediary whose services are used by a third party in order to infringe an intellectual property right may, regardless of any liability of its own in relation to the facts at issue, be ordered to take measures aimed at bringing those infringements to an end and measures seeking to prevent further infringements (see to that effect, in particular, judgments of 12 July 2011 in L’Oréal and Others, C‑324/09, EU:C:2011:474, paragraphs 127 to 134, and 24 November 2011 in Scarlet Extended, C‑70/10, EU:C:2011:771, paragraphs 30 and 31).
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45. The fact that, in the main proceedings, the benefit granted by F‑Tex in consideration for the assignment by the liquidator of his right to have a transaction set aside took the form of an obligation to pay the liquidator a percentage of the proceeds obtained from the claim assigned does not alter that analysis, since it is merely a method of payment. Such a contractual stipulation is within the power of the parties as it is not disputed that the liquidator and the assignee could freely choose to express the consideration paid by the assignee in the form of a fixed sum or a percentage of any sums recovered.
| 0 |
861,942 |
66. That said, the Court’s interpretation of Regulation No 1408/71 in response to the first question submitted for a preliminary ruling must be understood without prejudice to the solution which flows from the potential applicability of provisions of primary law (see, by way of analogy, Acereda Herrera , cited above, paragraph 38). The finding that a national measure may be consistent with a provision of a secondary law measure, in this case Regulation No 1408/71, does not necessarily have the effect of removing that measure from the scope of the Treaty’s provisions (see, to that effect, Case C‑158/96 Kohll [1998] ECR I‑1931, paragraph 25, and Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 47). It follows that the applicability, as the case may be, of Articles 19 or 22 of Regulation No 1408/71 to a situation such as that at issue in the main proceedings does not of itself prevent the person concerned from claiming, pursuant to primary law, the payment of certain costs relating to care received in a care home situated in another Member State, under rules different to those provided for in those articles (see, by analogy, Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, paragraphs 37 to 53, along with Watts , cited above, paragraph 48).
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33 The VAT system is not disturbed as a result of such deduction since there is no need to readjust the taxable amount for the intermediate transactions. On the contrary, that amount remains unchanged since, for those transactions, observance of the principle of neutrality is ensured by application of the conditions for deduction set out in Title XI of the Sixth Directive. Under those conditions, the intermediate links in the distribution chain, such as wholesalers and retailers, may deduct from their own taxable amount the sums paid by each to his own supplier in respect of VAT on the corresponding transaction and thus pass on to the tax authorities the part of the VAT representing the difference between the price paid by each to his supplier and the price at which he supplied the goods to his purchaser.
| 0 |
861,943 |
47. In addition, according to settled case-law, medical services supplied for consideration fall within the scope of the provisions of the FEU Treaty on the freedom to provide services, there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (see, in particular, Smits and Peerbooms , paragraph 53, and Commission v France , paragraph 30).
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59. It follows from the foregoing that Article 36 TFEU must be interpreted as meaning that, where a national court examines national legislation in the light of the justification relating to the protection of the health and life of humans, under that article, it is bound to examine objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods and of the CMO.
The third question
| 0 |
861,944 |
26. Nevertheless, when adopting measures to implement EU legislation, Member States must exercise their discretion in compliance with the general principles of EU law (see, to that effect, judgments in Mulligan and Others , C‑313/99, EU:C:2002:386, paragraph 35, and Azienda Agricola Giorgio, Giovanni and Luciano Visentin and Others , EU:C:2004:180, paragraph 40), which include the principles of legal certainty, the protection of legitimate expectations, proportionality and non-discrimination (judgment in Kurt und Thomas Etling and Others , C‑230/09 and C‑231/09, EU:C:2011:271, paragraph 74).
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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 |
861,945 |
14 As regards the absence of any intention on the part of the Kingdom of Spain not to fulfil its obligations under Articles 3 and 4 of the Directive, it must be pointed out that the procedure laid down in Article 169 of the Treaty is based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation (see, to that effect, Case 301/81 Commission v Belgium [1983] ECR 467, paragraph 8).
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29. It follows that, if a public authority becomes a minority shareholder in a company limited by shares with wholly public capital for the purpose of awarding the management of a public service to that company, the control that the public authorities which are members of that company exercise over it may be categorised as similar to the control they exercise over their own departments when it is exercised by those authorities jointly ( Sea , paragraph 63).
| 0 |
861,946 |
24. By providing that the duties to which it refers may be ‘charged at a flat rate or not’, Article 12(1)(a) of Directive 69/335 allows the Member States freely to determine the rate thereof. Moreover, those duties are not deemed to constitute the consideration for a service rendered, with the result that the amount thereof need not be linked to the cost of that service and that the criteria established by the case-law (see, in particular, Case C-206/99 SONAE [2001] ECR I‑4679, paragraphs 32 to 34, and the case-law cited) to distinguish duties paid by way of fees or dues, within the meaning of Directive 69/335, from those which do not come within that category are not applicable to them (order in SONAE Distribuição , paragraphs 26 and 27).
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36. As regards the manner in which those prices must be set, Article 23(1) of Regulation No 1008/2008 requires, in particular, on the one hand, that the unavoidable and foreseeable items included in the price of the air service are always specified as elements of the final price to be paid, and, on the other hand, that the price supplements, which relate to services that are neither compulsory nor necessary for the air service itself, are communicated in a clear, transparent and unambiguous way at the start of any booking process, and that their acceptance by the customer must be on an opt-in basis (see, to that effect, ebookers.com Deutschland , EU:C:2012:487, paragraph 14).
| 0 |
861,947 |
46. With regard to judicial review of the conditions referred to in the previous paragraph, the Community legislature must be allowed a broad discretion in an area such as that concerned in the present case, which involves political, economic and social choices on its part, and in which it is called on to undertake complex assessments. Only if a measure adopted in this field is manifestly inappropriate in relation to the objective which the competent institutions are seeking to pursue can the lawfulness of such a measure be affected (see, to that effect, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 58; Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraphs 55 and 56; Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, paragraph 61; and British American Tobacco (Investments) and Imperial Tobacco , paragraph 123).
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29. Under the first sentence of Article 147(1) of the implementing regulation, the fact that the goods which are the subject of a sale are declared for free circulation is to be regarded as adequate indication that the abovementioned condition has been fulfilled. The second sentence of Article 147(1), in the version in force at the time of the facts in the main proceedings, provided that that indication was also to apply in the case of successive sales before valuation.
| 0 |
861,948 |
65 It follows from the case-law of the Court that that provision may be relied upon to justify a measure contrary to Article 86 of the Treaty adopted in favour of an undertaking to which the State has granted exclusive rights if that measure is necessary to enable the undertaking to perform the particular task assigned to it and if it does not affect the development of trade in a manner contrary to the interest of the Community (see, to that effect, Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 14, and Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 49).
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35. Il y a lieu de rappeler, à titre liminaire, qu’il résulte du troisième considérant de la directive 95/59 que celle-ci s’inscrit dans le cadre d’une politique d’harmonisation des structures de l’accise sur les tabacs manufacturés ayant pour but d’éviter que la concurrence entre différentes catégories de tabacs manufacturés appartenant à un même groupe ne soit faussée et, ainsi, de réaliser l’ouverture des marchés nationaux des États membres (voir arrêts du 4 mars 2010, Commission/France, C‑197/08, non encore publié au Recueil, point 33; Commission/Autriche, C‑198/08, non encore publié au Recueil, point 25, et Commission/Irlande, C‑221/08, non encore publié au Recueil, point 36).
| 0 |
861,949 |
39. As regards the substance, the question whether the grounds of a judgment of the General Court are contradictory or inadequate is a question of law which is amenable, as such, to review on appeal (see, in particular, judgment of 11 January 2007 in Case C-404/04 P Technische Glaswerke Ilmenau v Commission , paragraph 90, and Joined Cases C-120/06 P and C-121/06 P FIAMM et FIAMM Technologies v Council and Commission [2008] ECR I-6513, paragraph 90).
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90. The question whether the grounds of a judgment of the Court of First Instance are contradictory or inadequate is a question of law which is amenable, as such, to judicial review on appeal (see, inter alia, the judgment of 11 January 2007 in Case C-404/04 P Technische Glaswerke Ilmenau v Commission , paragraph 90).
| 1 |
861,950 |
71. With regard to the second limb of the second question, according to the Court's case-law, the various grounds for refusing registration set out in Article 3 of the Directive must be interpreted in the light of the public interest underlying each of them (see, to that effect, Windsurfing Chiemsee , paragraphs 25 to 27, and Philips , paragraph 77).
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140. In accordance with that line of case-law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. That concept must be understood as designating an economic unit even if in law that unit consists of several natural or legal persons. When such an economic entity infringes the competition rules, it is for that entity, according to the principle of personal responsibility, to answer for that infringement (judgment in Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others , C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 42 and the case-law cited).
| 0 |
861,951 |
21. First of all, it should be noted that, as a general rule, the Court will refrain from considering the principle of tax neutrality with a view to ascertaining whether EU law precludes national rules which lay down time-limits within which a VAT refund must be claimed, failing which the action is time-barred (see, to that effect, Case C‑85/97 SFI [1998] ECR I‑7447, paragraphs 22 to 36; Case‑62/00 Marks & Spencer [2002] ECR I‑6325, paragraphs 22 to 47; and Case C‑472/08 Alstom Power Hydro [2010] ECR I‑623, paragraphs 14 to 22).
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29. Compte tenu du fait que le principe de reconnaissance mutuelle, qui sous-tend l’économie de la décision-cadre, implique, en vertu de l’article 6 de cette dernière, que les États membres sont en principe tenus de reconnaître une décision infligeant une sanction pécuniaire qui a été transmise conformément à l’article 4 de la décision-cadre, sans qu’aucune autre formalité soit requise, et de prendre sans délai toutes les mesures nécessaires pour son exécution, les motifs de refus de reconnaissance ou d’exécution d’une telle décision doivent être interprétés d’une manière restrictive (voir, par analogie, arrêt du 29 janvier 2013, Radu, C‑396/11, point 36 et jurisprudence citée).
| 0 |
861,952 |
21. According to the case-law of the Court, the exemptions provided for in Article 13 of the Sixth Directive constitute independent concepts of European Union law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another (see, in particular, Case C‑349/96 CPP [1999] ECR I‑973, paragraph 15; Horizon College , paragraph 15; and Case C‑242/08 Swiss Re Germany Holding [2009] ECR I‑0000, paragraph 33). As a consequence, the terms of a provision of the Sixth Directive which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Union (see to that effect Case C-497/01 Zita Modes [2003] ECR I‑14393, paragraph 34, and Case C‑25/03 HE [2005] ECR I‑3123, paragraph 63).
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54. With a view to giving a helpful answer to the questions submitted, it should be made clear at the outset that Directive 1999/70 and the Framework Agreement can apply also to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies.
| 0 |
861,953 |
65. In order to determine whether a breach of Community law is sufficiently serious, the national court hearing a claim for compensation must take account of all the factors which characterise the situation which is brought before it. Those factors include, in particular, the clarity and precision of the rule infringed, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by a Community institution may have contributed towards the adoption or maintenance of national measures or practices contrary to Community law ( Factortame , paragraph 56; Haim , paragraph 43).
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66. That interpretation cannot be called in question by the objections based on economic and organisational consequences which, according to the five Member States which submitted observations under Article 20 of the EC Statute of the Court of Justice, would result from the extension to a case such as that in the main proceedings of the solution adopted in the Simap judgment.
| 0 |
861,954 |
17
In response to that reference, the Court held that, first, Article 1 of the Third Directive was to be interpreted as precluding national legislation whereby compulsory motor vehicle liability insurance does not cover liability in respect of personal injuries to persons travelling in a part of a motor vehicle which has not been designed and constructed with seating accommodation for passengers and, second, that article satisfied all the conditions necessary for it to produce direct effect and accordingly conferred rights upon which individuals might rely directly before the national courts. The Court held, however, that it was for the national court to determine whether that provision might be relied upon against a body such as the MIBI (judgment of 19 April 2007, Farrell, C‑356/05, EU:C:2007:229, paragraphs 36 and 44).
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29 AS REGARDS THE VERBINNEN CASE , ON THE OTHER HAND , IT MUST BE OBSERVED THAT , WHILST IT WAS NOT MENTIONED IN THE STATEMENT OF OBJECTIONS , IT WAS COMMUNICATED TO AEG IN SUFFICIENT TIME TO ALLOW IT TO PREPARE ITS OBSERVATIONS BEFORE THE CONTESTED DECISION WAS ADOPTED .
| 0 |
861,955 |
33. However, in accordance with the principle of proportionality, which constitutes a general principle of Community law (see, inter alia, Case C-210/03 Swedish Match [2004] ECR I-11893, paragraph 47), the measures adopted by the Member States must not go beyond what is necessary to achieve that objective (see, to that effect, Michaniki , paragraphs 48 and 61, and Case C-538/07 Assitur [2009] ECR I-0000, paragraphs 21 and 23).
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20. Selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour (Commission/Italie, EU:C:2014:353, point 25 et jurisprudence citée).
| 0 |
861,956 |
32. It is clear that the infringement alleged against the Danish Government is of limited scope and has negligible practical consequences. However, as the Court has held (see Case C-209/89 Commission v Italy [1991] ECR I-1575, paragraphs 6 and 19; Case C-404/99 Commission v France [2001] ECR I-2667, paragraph 51), an action against a Member State for failure to fulfil its obligations is objective in nature and, consequently, where a Member State fails to fulfil its obligations under the Treaty or under secondary legislation, the infringement exists regardless of the frequency or the scale of the circumstances complained of.
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49. In that regard, under the Sixth Directive the scope of VAT is very wide in that Article 2 thereof, which concerns taxable transactions, refers not only to imports of goods but also to the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such.
| 0 |
861,957 |
64. Il est de jurisprudence constante qu’une mesure qui est susceptible d’entraver la liberté d’établissement consacrée à l’article 49 TFUE ne saurait être admise que si elle poursuit un objectif légitime compatible avec le traité et est justifiée par des raisons impérieuses d’intérêt général. Encore faut-il, en pareil cas, que son application soit propre à garantir la réalisation de l’objectif ainsi poursuivi et n’aille pas au-delà de ce qui est nécessaire pour atteindre celui-ci (voir, notamment, arrêts de Lasteyrie du Saillant, précité, point 49; du 13 décembre 2005, Marks & Spencer, C‑446/03, Rec. p. I‑10837, point 35, ainsi que du 21 janvier 2010, SGI, C‑311/08, Rec. p. I‑487, point 56).
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17 It must be observed that administrative controls preceding on-farm inspections must be carried out in such a way as to enable the national authorities to draw all possible conclusions, be they matters of certainty or of doubt, regarding compliance with the conditions for granting premiums. Accordingly, such controls should consist in checking that the claims and the undertakings or declarations accompanying them are in due order, comparing claims with any lodged by the same producer in earlier years, comparing claims with those relating to other holdings, above all the larger ones, and examining the information obtained in combination with the available statistics, and any other relevant data, so as to identify any dubious cases.
| 0 |
861,958 |
51. By contrast, such a restriction exists, in particular, if those lawyers are deprived of the opportunity of gaining access to the market of the host Member State under conditions of normal and effective competition (see, to that effect, CaixaBank France , paragraphs 13 and 14; Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I-11421, paragraph 59; and Case C‑384/08 Attanasio Group [2010] ECR I‑0000, paragraph 45).
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27 It should be noted that the terms of the provisions under consideration show clearly that where the obligations flowing from the premium scheme are not complied with, the entire amount of the premium paid must be refunded and not merely an amount proportionate to the period during which the undertakings were not complied with .
| 0 |
861,959 |
64. As part of that analysis, it is necessary to consider not only the actual wording of that decision, only a summary of which was published in the Official Journal of the European Communities , but also to take account of the 1997-1999 aid scheme, as notified (see, to that effect, Case C‑138/09 Todaro Nunziatina & C. [2010] ECR I‑0000, paragraph 31).
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47. However, if those conditions are not satisfied, the connection with one Member State of the vehicle registered in another Member State is weaker, so that another justification for the restriction in question is necessary (see Commission v Denmark , paragraph 79; Commission v Finland , paragraph 48; and orders in van de Coevering , paragraph 26, and Vandermeir , paragraph 33).
| 0 |
861,960 |
62 Environmental protection has already been considered by the Court to be one of the essential objectives of the Community (see Case 240/83 Procureur de la République v Association de Défense des Brûleurs d'Huiles Usagées [1985] ECR 531, paragraph 13). In Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 9, the Court held that protection of the environment is an imperative requirement which may limit the application of Article 30 of the Treaty.
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51 Furthermore, even if such a criterion is not in itself incompatible with Directive 93/37, it must be applied in conformity with all the procedural rules laid down in that directive, in particular the rules on advertising (see, to that effect, on Directive 71/305, Beentjes, paragraph 31). It follows that an award criterion linked to the campaign against unemployment must be expressly mentioned in the contract notice so that contractors may become aware of its existence (see, to that effect, Beentjes, paragraph 36).
| 0 |
861,961 |
33 It is settled case-law that Article 59 of the Treaty requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (see Case C-76/90 Säger [1991] ECR I-4221, paragraph 12, Case C-43/93 Vander Elst v Office des Migrations Internationales [1994] ECR I-3803, paragraph 14, Case C-272/94 Guiot [1996] ECR I-1905, paragraph 10, Case C-3/95 Reisebüro Broede v Sandker [1996] ECR I-6511, paragraph 25, and Case C-222/95 Parodi v Banque H. Albert de Bary [1997] ECR I-3899, paragraph 18).
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37. It follows that the failure of the new contractor to take over, in terms of numbers and skills, an essential part of the staff which its predecessor employed to perform the same activity is not sufficient to preclude the existence of a transfer of an entity which retains its identity within the meaning of Directive 77/187 in a sector such as catering, where the activity is based essentially on equipment. As the United Kingdom and the Commission rightly point out, any other conclusion would run counter to the principal objective of Directive 77/187, which is to ensure the continuity, even against the wishes of the transferee, of the employment contracts of the employees of the transferor.
| 0 |
861,962 |
28. The fact that the amount of the usage fees is not determined unilaterally by the provider of the rescue services, but by agreement with the social security institutions which themselves have the status of a contracting authority (see, to that effect, Case C-300/07 Hans & Christophorus Oymanns [2009] ECR I-4779, paragraphs 40 to 59), and that those fees are not paid directly by the users of those services to the selected provider but through a central settlement office which is in charge of collecting and remitting those fees, by regular payments on account, does not affect that finding. The fact remains that all the remuneration obtained by the provider of the services comes from persons other than the contracting authority which awarded it the contract.
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40. Moreover, it follows from the phrase ‘dismissals effected by an employer’, used in Article 1(1)(a) of Directive 98/59, that the concept of collective redundancies assumes, in principle, that the employer carries out or has the intention of carrying out such redundancies, although as the Advocate General has pointed out in point 81 of his Opinion, the phrase ‘on the employer’s initiative’ used in the second subparagraph of Article 1(1) implies a direct manifestation of the will of the employer consisting in taking the initiative.
| 0 |
861,963 |
55. In the present case, since it is common ground that the standard rate of VAT was applied to the services at issue from 24 March 1992 to 31 December 1994, the Portuguese Republic cannot be authorised to reintroduce a reduced rate in respect of those services (see, to that effect, Case C‑35/90 Commission v Spain [1991] ECR I‑5073, paragraph 7; Case C‑74/91 Commission v Germany [1992] ECR I‑5437, paragraph 15; Case C‑414/97 Commission v Spain [1999] I‑5585, paragraph 29, and Eurodental , paragraph 55).
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26 ANSEAU AND MIELE ALSO CONTEND THAT , CONTRARY TO THE FINDINGS SET OUT IN THE DECISION , THE AGREEMENTS HAD NO RESTRICTIVE EFFECT ON COMPETITION .
| 0 |
861,964 |
48. It must be borne in mind that, according to settled case-law, the terms used in a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must be given throughout the Community an autonomous and uniform interpretation, which must take into account the context of the provision and the purpose of the legislation in question (Case C-287/98 Linster [2000] ECR I‑6917, paragraph 43, and Case C‑290/03 Barker [2006] ECR I‑3949, paragraph 40).
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52 In any event, whether considered in isolation or even together, the irregularities of competence and form found by the Court of First Instance, which relate to the procedure for the adoption of the Commission' s decision, do not appear to be of such obvious gravity that the decision must be treated as legally non-existent.
| 0 |
861,965 |
18 The Court has consistently held that the incompatibility of provisions of national law with provisions of the Treaty, even those directly applicable, can be definitively eliminated only by means of binding domestic provisions having the same legal force as those which require to be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State' s obligations under the Treaty, since they maintain, for the persons concerned, a state of uncertainty as regards the extent of their rights as guaranteed by the Treaty (see in particular Case C-80/92 Commission v Belgium [1994] ECR I-1019, paragraph 20, and in Case C-307/89 Commission v France [1991] ECR I-2903, paragraph 13).
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48. Applying a coefficient of 1.2 to the transitional stock is prima facie favourable to operators, since it tends to reduce the surplus stock. According to the Estonian Government, the coefficient was fixed on the basis of the rate of growth of Estonian agricultural production observed during the period from 2000 to 2004. The coefficient thus makes it possible to update the average stock on 1 May of the years 2000 to 2003 in the light of that rate of growth and to determine a transitional stock – and hence a surplus stock – which reflects proportionately the development of growth observed across the whole agricultural sector in Estonia from 1 May 2000 to 1 May 2004. It thus helps to establish an objective basis of comparison between the stock on 1 May 2004 and the average stock on 1 May of the previous four years.
| 0 |
861,966 |
54. Finally, the term ‘economic activity’ is defined in Article 4(2) of the Sixth Directive as comprising ‘all’ activities of producers, traders and persons supplying services, and, according to the case-law, it includes all stages of production, distribution and the provision of services (see, in particular, Case C-186/89 Van Tiem [1990] ECR I-4363, paragraph 17, and MGK-Kraftfahrzeuge-Factoring , paragraph 42).
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14 Moreover, the principle of the protection of legitimate expectations may be invoked as against Community rules, only to the extent that the Community itself has previously created a situation which can give rise to a legitimate expectation.
| 0 |
861,967 |
31. Therefore, the fact that the Commission set out in detail the complaints that it had already made in more general terms in the reasoned opinion did not alter the subject-matter of the alleged infringement, and thus had no effect on the scope of the proceedings (see, to that effect, Case C‑185/00 Commission v Finland [2003] ECR I‑14189, paragraphs 84 to 87; Case C-171/08 Commission v Portugal , paragraph 29; and Case C‑543/08 Commission v Portugal [2010] ECR I‑0000, paragraph 23).
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74. It is only at that stage that the ecological advantages which led the Community legislature to accord a degree of preference to this form of waste recovery are fully achieved, namely a reduction in the consumption of energy and of primary raw materials (see the 11th recital in the preamble to Directive 94/62).
| 0 |
861,968 |
133. It is appropriate to bear in mind, first, that the management of EAGGF financing is principally in the hands of the national administrative authorities responsible for ensuring that the Community rules are strictly observed. That system, based on trust between national and Community authorities, does not involve any systematic supervision by the Commission, which moreover would in practice be quite unable to carry it out. Only the Member State is in a position to know and determine precisely the information necessary for drawing up EAGGF accounts since the Commission is not close enough to obtain the information it needs from the economic operators (Case C-238/96 Ireland v Commission [1998] ECR I-5801, paragraph 30, and Case C-118/99 France v Commission [2002] ECR I-747, paragraph 37).
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73. À cet égard, il convient d’observer que, selon les articles 225 CE et 58, premier alinéa, du statut de la Cour de justice, le pourvoi est limité aux questions de droit. Selon cette dernière disposition, il doit être fondé sur des moyens tirés de l’incompétence du Tribunal, des irrégularités de procédure devant le Tribunal portant atteinte aux intérêts de la partie requérante ou de la violation du droit communautaire par ce dernier.
| 0 |
861,969 |
73. Similarly, if a prudent and alert economic operator can foresee the adoption of a Community measure likely to affect his interests, he cannot plead that principle if the measure is adopted (see Van den Bergh en Jurgens and Van Dijk Food Products (Lopik) v EEC , paragraph 44, and Belgium and Forum 187 v Commission , paragraph 147).
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147. The Court has repeatedly held that the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation where a Community authority has caused him to entertain expectations which are justified. However, a person may not plead infringement of the principle unless he has been given precise assurances by the administration (Case C-506/03 Germany v Commission [2005] ECR I‑0000, paragraph 58). Similarly, if a prudent and alert economic operator could have foreseen the adoption of a Community measure likely to affect his interests, he cannot plead that principle if the measure is adopted (Case 265/85 Van den Bergh en Jurgens and Van Dijk Food Products Lopik v Commission [1987] ECR 1155, paragraph 44).
| 1 |
861,970 |
34. As stated by the Advocate General in point 34 of his Opinion, that finding is also consistent with the principles of equal treatment and tax neutrality, which require that the Court’s recognition of the economic nature of the acquisition of holdings accompanied by an involvement by the parent company in the management of its subsidiaries and of companies controlled by it should be extended to the disposals of holdings which bring about the end of such involvement (see, by way of analogy, Wellcome Trust , paragraph 33, and Kretztechnik , paragraph 19).
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56. In addition, according to Article 131 of the Law on mortgages, preliminary registrations of an application for annulment of a mortgage or the other entries in the register not based on one of the cases which may lead to staying of enforcement are to be cancelled pursuant to the order on annulment referred to in Article 133 of that law, provided that such entries postdate the marginal note regarding issue of the security certificate.
| 0 |
861,971 |
33
The Court has, moreover, specified that the concept of ‘communication to the public’ requires an individual assessment (see judgment of 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 29 and the case-law cited, relating to the concept of ‘communication to the public’, for the purposes of Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28), it having the same scope in that directive as in Directive 2001/29 (see, to that effect, judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 33)).
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13. Mr Garcia Avello, a Spanish national, and Ms I. Weber, a Belgian national, are resident in Belgium, where they married in 1986. The two children born from their marriage, Esmeralda and Diego, who were born in 1988 and 1992 respectively, have dual Belgian and Spanish nationality.
| 0 |
861,972 |
39. As appears from the very wording of Article 20(1) of Regulation No 2201/2003, the courts referred to in that provision are entitled to take such provisional or protective measures only on condition that three cumulative conditions are satisfied, namely that the measures concerned must be urgent, must be taken in respect of persons or assets in the Member State where those courts are situated, and must be provisional (see, to that effect, Case C‑523/07 A [2009] ECR I‑0000, paragraph 47).
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30. À cet égard, il y a lieu de rappeler que, selon une jurisprudence constante, l’existence d’un manquement dans le cadre d’un recours fondé sur l’article 226 CE doit être appréciée au regard de la législation communautaire en vigueur au terme du délai que la Commission a imparti à l’État membre en cause pour se conformer à son avis motivé (arrêts du 10 septembre 1996, Commission/Allemagne, C‑61/94, Rec. p. I-3989, point 42; du 9 novembre 1999, Commission/Italie, C-365/97, Rec. p. I-7773, point 32, et du 5 octobre 2006, Commission/Belgique, C-275/04, Rec. p. I‑9883, point 34).
| 0 |
861,973 |
39
Under Article 7(2) of Regulation No 492/2011, the wording of which is the same as that in Article 7(2) of Regulation No 1612/68, a worker who is a national of a Member State is to enjoy, in the territory of another Member State, the same social and tax advantages as national workers. That provision equally benefits both migrant workers resident in a host Member State and frontier workers employed in that Member State while residing in another Member State (see, to that effect, judgments of 27 November 1997, Meints, C‑57/96, EU:C:1997:564, paragraph 50, and 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 37).
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92
Admittedly, the sanctions and measures sought in the cases in the main proceedings against the defendants in the main proceedings and which are the subject of the third question fall within the sanctions and measures referred to in Article 88(2) and Article 89(1)(d) of Regulation No 6/2002 (see, to that effect, judgment of 13 February 2014, H. Gautzsch Großhandel, C‑479/12, EU:C:2014:75, paragraphs 52 to 54).
| 0 |
861,974 |
97. By those preliminary explanations, the General Court merely applied the case-law laid down by the Court of Justice in the judgment in Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others (C‑399/10 P and C‑401/10 P, EU:C:2013:175), to which the General Court also expressly referred in paragraph 67 of the judgment under appeal, and according to which, since State interventions take various forms and have to be assessed in relation to their effects, it cannot be excluded that several consecutive measures of State intervention must, for the purposes of Article 107(1) TFEU, be regarded as a single intervention. That could be the case, in particular when consecutive interventions, having regard to their chronology, their purpose and the circumstances of the undertaking at the time of those interventions, are so closely related to each other that they are inseparable from one another.
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7 Sun Alliance, which groups together a number of companies that manage investment funds and personal equity plans, entrusted to CSC all communications and contacts with the public concerning an investment product known as the Daisy Personal Equity Plan, under which investment is made by means of units in a unit trust.
| 0 |
861,975 |
20. 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 to that effect, in particular, Commission v France , paragraph 41; Case C‑174/04 Commission v Italy [2005] ECR I-4933, paragraphs 30 and 31; and Case C‑265/04 Bouanich [2006] ECR I-923, paragraphs 34 and 35).
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91 The order for reference shows that these additional benefits are calculated separately, solely on the basis of the value of the contributions paid, which are credited to a special fund managed by the trustees as a distinct fund, separate from that created by the employer' s and employees' contributions under the normal occupational pension scheme.
| 0 |
861,976 |
86. For an argument based on such a justification to succeed, however, the Court requires there to be a direct link between the tax advantage concerned and the compensating of that advantage by a particular tax levy, with the direct nature of that link falling to be examined in the light of the objective pursued by the rules in question ( Papillon , paragraph 44, and Glaxo Wellcome , paragraph 78).
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35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71.
| 0 |
861,977 |
50. Article 12 requires only that the child have lived with his parents or with either parent in a Member State while at least one of the parents resided there as a worker (Case 197/86 Brown [1988] ECR 3205, paragraph 30, and Case C-480/08 Teixeira [2010] ECR I-1107, paragraph 52).
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17 Finally, it must be accepted, as the Commission has rightly pointed out, that the Netherlands Government could have avoided the adverse financial consequences to which it refers by making available to that institution the amount claimed while formulating reservations as to the validity of the Commission' s arguments.
| 0 |
861,978 |
46. The difference in treatment which arises from a condition of residence being imposed on students who are the children of frontier workers thus constitutes indirect discrimination on the ground of nationality which is in principle prohibited, unless it is objectively justified. In order to be justified, it must be appropriate for securing the attainment of a legitimate objective and must not go beyond what is necessary to attain that objective (see, to that effect, Case C‑73/08 Bressol and Others [2010] ECR I‑2735, paragraphs 47 and 48, and Commission v Netherlands , paragraph 55).
The pursuit of a legitimate objective
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23. It appears from this that the right to the recovery of sums unduly paid helps to offset the consequences of the duty’s incompatibility with EU law by neutralising the economic burden which that duty has unduly imposed on the operator who, in the final analysis, has actually borne it.
| 0 |
861,979 |
30 Although, as far as this case is concerned, the driving of underground tunnels cannot be considered to be an activity based essentially on manpower since it requires a significant amount of plant and equipment, it is clear from the order for reference that, in the mining sector, it is common for the essential assets required for driveage work to be provided by the mine owner himself. For instance, AMS, as subcontractor, was able to use the equipment which RJB previously made available to ACC. The fact that ownership of the assets required to run the undertaking did not pass to the new owner does not preclude a transfer (see Ny Mølle Kro and Daddy's Dance Hall, cited above, and Case C-209/91 Watson Rask and Christensen [1992] ECR I-5755). In the circumstances, the fact that there was no transfer of assets between ACC and AMS is not of decisive importance.
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61. It is for the Commission, when it considers that a Member State has failed to fulfil its obligations, to assess whether it is appropriate to act against that State, to ascertain the provisions which it has infringed and to choose when it will open the infringement procedure against it (see, in particular, Case C‑33/04 Commission v Luxembourg [2005] ECR I‑10629, paragraph 66 and the case-law cited, and the judgment of 7 October 2010 in Case C-154/09 Commission v Portugal , paragraph 51). The subject-matter of an action for failure to fulfil obligations is determined by the Commission’s reasoned opinion (Case C-171/08 Commission v Portugal [2010] ECR I‑6817, paragraph 25 and the case-law cited).
| 0 |
861,980 |
34
Furthermore, the fact that an economic sector, such as the energy sector, has been the subject of liberalisation at EU level may serve to determine that the aid in question has a real or potential effect on competition and affects trade between the Member States (see, to that effect, judgments of 10 January 2006, Cassadi Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 142, and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 51).
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Ce règlement n° 267/2012, qui constitue un acte juridiquement contraignant, au sens de l’article 291, paragraphe 2, TFUE,
énonce les critères généraux devant présider à l’inscription de personnes ou d’entités sur l’une des listes, contenues aux
annexes VIII et IX dudit règlement, des personnes ou des entités qui doivent faire l’objet de mesures restrictives, en tenant
compte des modifications apportées par la décision 2012/35 aux critères généraux d’inscription figurant dans la décision 2010/413,
lesquelles ont, en particulier, consisté à ajouter le critère relatif à la fourniture d’un appui au gouvernement iranien (arrêt
du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 38).
| 0 |
861,981 |
71. Taking account of those factors, it must be concluded that, in the situation described in paragraphs 54 and 68 above, the advertiser cannot, in principle, claim to have acted in accordance with honest practices in industrial or commercial matters. It is, however, for the national court to carry out an overall assessment of all the relevant circumstances in order to determine whether there may be evidence to justify a contrary finding (see, to that effect, Case C‑100/02 Gerolsteiner Brunnen [2004] ECR I‑691, paragraph 26, and Anheuser-Busch , paragraph 84 and the case-law cited).
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2. Article 8 of Directive 92/50 provides that:
"Contracts which have as their object services listed in Annex IA shall be awarded in accordance with the provisions of Titles III to VI."
| 0 |
861,982 |
26. In the present case, the plea in law based on the adoption of the 2008 SNE decision, which occurred in the course of the proceedings before the Court of Justice, is in any event ineffective, since the legality of a Community measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraph 7; Case C‑449/98 P IECC v Commission [2001] ECR I-3875, paragraph 87; and Case C-443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I-10945, paragraphs 110 and 111).
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109. Il y a lieu de constater que les décisions 2010/413 et 2010/644 sont fondées sur l’article 29 TUE, que le règlement d’exécution n o 668/2010 est fondé sur l’article 291, paragraphe 2, TFUE et le règlement n o 423/2007, et que le règlement n o 961/2010 est fondé sur l’article 215 TFUE. Ces dispositions des traités donnaient au Conseil la compétence pour adopter les actes litigieux, contenant des mesures restrictives autonomes, distinctes de mesures recommandées spécifiquement par le Conseil de sécurité.
| 0 |
861,983 |
70
It must nevertheless be borne in mind that Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights enshrined by the Charter as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, in accordance with the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (see, in particular, judgment of 31 January 2013, McDonagh , C‑12/11, EU:C:2013:43, paragraph 61).
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61. Next, Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights enshrined by it as long as the limitations are provided for by law, respect the essence of those rights and freedoms, and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
| 1 |
861,984 |
66
In that regard it must be recalled that, according to settled case-law, where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category (judgments of 26 January 1999, Terhoeve, C‑18/95, EU:C:1999:22, paragraph 57; of 22 June 2011, Landtová, C‑399/09, EU:C:2011:415, paragraph 51; and of 28 January 2015, ÖBB Personenverkehr, C‑417/13, EU:C:2015:38, paragraph 46). Disadvantaged persons must therefore be placed in the same position as persons enjoying the advantage concerned (judgment of 11 April 2013, Soukupová, C‑401/11, EU:C:2013:223, paragraph 35).
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98. In addition, in order to determine which forms of purchases of government bonds are compatible with Article 123(1) TFEU, it is necessary to take account of the objective pursued by that provision (see, by analogy, judgment in Pringle , C‑370/12, EU:C:2012:756, paragraph 133).
| 0 |
861,985 |
49. It should be noted, secondly, that a measure which is liable to hinder the freedom of establishment laid down by Article 52 of the Treaty can be allowed only if it pursues a legitimate objective compatible with the Treaty and is justified by imperative reasons in the public interest. It is further necessary, in such a case, that its application must be appropriate to ensuring the attainment of the objective thus pursued and must not go beyond what is necessary to attain it (see Futura Participations and Singer , paragraph 26, and the case-law cited therein, and X and Y , paragraph 49).
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61. It is in the light of those principles that the Republic of Poland’s arguments must be assessed.
| 0 |
861,986 |
28. As is particularly apparent from the third recital in the preamble to Directive 90/435, the aim of the directive is to eliminate, by introducing a common system of taxation, any disadvantage to cooperation between companies of different Member States, as compared with cooperation between companies of the same Member State, and thereby to facilitate the grouping together of companies at Community level (see Case C‑27/07 Banque Fédérative du Crédit Mutuel [2008] ECR I-0000, paragraph 23 and the case-law cited).
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En outre, bien que la Cour ait considéré, s’agissant de décisions d’inspections, que, s’il incombe à la Commission d’indiquer,
avec autant de précision que possible, ce qui est recherché et les éléments sur lesquels doit porter la vérification, il n’est
en revanche pas indispensable de faire apparaître dans une décision d’inspection une délimitation précise du marché en cause,
ni la qualification juridique exacte des infractions présumées ou l’indication de la période au cours de laquelle ces infractions
auraient été commises, elle a justifié cette considération par le fait que les inspections interviennent au début de l’enquête,
à une période au cours de laquelle la Commission ne dispose pas encore d’informations précises (voir, en ce sens, arrêt Nexans
et Nexans France/Commission, C-37/13 P, EU:C:2014:2030, points 36 ainsi que 37).
| 0 |
861,987 |
41. It should be noted that, according to the case-law, a Member State is in breach of the prohibitions laid down by Article 86(1) EC in conjunction with Article 82 EC if it adopts any law, regulation or administrative provision that creates a situation in which a public undertaking or an undertaking on which it has conferred special or exclusive rights, merely by exercising the preferential rights conferred upon it, is led to abuse its dominant position or when those rights are liable to create a situation in which that undertaking is led to commit such abuses (see, to that effect, the judgments in Connect Austria , EU:C:2003:297, paragraph 80, and MOTOE , EU:C:2008:376, paragraph 49 and the case‑law cited). In that respect, it is not necessary that any abuse should actually occur (judgments in GB-Inno-BM , EU:C:1991:474, paragraphs 23 to 25; Raso and Others , EU:C:1998:54, paragraph 31; and MOTOE , EU:C:2008:376, paragraph 49).
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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 |
861,988 |
30. In that regard, according to settled case‑law, since the system of export refunds is based on voluntary declarations, where the exporter decides on its own initiative to seek a refund, it must provide the relevant information necessary to establish its entitlement to the refund and to determine its amount. In the context of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1) and the system of penalties introduced by that regulation, the Court has already held that, since the context is that of a Community aid scheme, the grant of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness (see, to that effect, Case C‑210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, paragraph 41, and Case C‑309/04 Fleisch‑Winter [2005] ECR I‑10349, paragraph 31).
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60. S’agissant de la troisième branche de ce troisième moyen, il y a lieu de rappeler la jurisprudence constante selon laquelle il appartient à la Commission, aux fins de prouver l’existence d’une violation des règles de l’organisation commune des marchés agricoles, non pas de démontrer d’une façon exhaustive l’insuffisance des contrôles effectués par les administrations nationales ou l’irrégularité des chiffres transmis par elles, mais de présenter un élément de preuve du doute sérieux et raisonnable qu’elle éprouve à l’égard de ces contrôles ou de ces chiffres. Cet allègement de l’exigence de la preuve pour la Commission s’explique par le fait que c’est l’État membre qui est le mieux placé pour recueillir et vérifier les données nécessaires à l’apurement des comptes du Fonds européen d’orientation et de garantie agricole (FEOGA), et auquel il incombe, en conséquence, de présenter la preuve la plus détaillée et complète de la réalité de ses contrôles ou de ses chiffres et, le cas échéant, de l’inexactitude des affirmations de la Commission (arrêts Allemagne/Commission, C-344/01, EU:C:2004:121, point 58, ainsi que Portugal/Commission, C-335/03, EU:C:2005:231, point 68 et jurisprudence citée).
| 0 |
861,989 |
43
Moreover, the Court notes, as did DPV and the Netherlands Government, that, in the present case, price competition could be capable of benefiting the patient in so far as it would allow, where relevant, for prescription-only medicinal products to be offered in Germany at more attractive prices than those currently imposed by that Member State. As the Court has previously held, the effective protection of health and life of humans demands, inter alia, that medicinal products be sold at reasonable prices (see judgment of 20 May 1976, de Peijper, 104/75, EU:C:1976:67, paragraph 25).
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131. In paragraph 100 of the judgment under appeal, the Court of First Instance held that the internal documents of the Commission clearly contained no exonerating evidence. It does not appear from any of the documents referred to by the appellant in its appeal that the Court of First Instance erred in law or distorted the facts or evidence in concluding that there was no exonerating evidence in those documents. Those documents describe general trends on the steel market but in no way show that the DG III officials were aware of or even encouraged the unlawful practices of which the appellant was accused.
| 0 |
861,990 |
39. It is settled case-law that, in Community competition law, the definition of an ‘undertaking’ covers any entity engaged in an economic activity, regardless of the legal status of that entity and the way in which it is financed (Case C‑41/90 Höfner and Elser [1991] ECR I‑1979, paragraph 21, and Case C‑205/03 P FENIN v Commission [2006] ECR I‑0000, paragraph 25).
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19 It is apparent from the judgment of 13 December 1989 in Case C-102/88 Ruzius Wilbrink v Bestuur van de Bedrijfsvereniging voor Overheidsdiensten (( 1989 )) ECR 4311, that in a case of indirect discrimination the members of the class of persons placed at a disadvantage are entitled to have the same scheme applied to them as that applied to other workers, on a basis proportional to their working time . That ruling applies equally to discriminatory provisions in a collective agreement .
| 0 |
861,991 |
38. The Court of First Instance was also correct in stating that the criteria for assessing the distinctive character of three-dimensional shape-of-products marks are no different from those applicable to other categories of trade mark. It none the less observed that, for the purpose of applying those criteria, the relevant public’s perception is not necessarily the same in relation to a three-dimensional mark consisting of the shape and colours of the product itself as it is in relation to a word or figurative mark consisting of a sign which is independent from the appearance of the products it denotes. Average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element and it could therefore prove more difficult to establish distinctiveness in relation to such a three-dimensional mark than in relation to a word or figurative mark (see, to that effect, Linde , paragraph 48, and Case C‑218/01 Henkel [2004] ECR I‑0000, paragraph 52).
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22 FURTHERMORE, IN THAT CAPACITY THE LANDBOUWSCHAP HAS TAKEN AN ACTIVE PART IN THE PROCEDURE UNDER ARTICLE 93 ( 2 ) BY SUBMITTING WRITTEN COMMENTS TO THE COMMISSION AND BY KEEPING IN CLOSE CONTACT WITH THE RESPONSIBLE OFFICIALS THROUGHOUT THE PROCEDURE .
| 0 |
861,992 |
63 In that regard, it is to be remembered that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, Crispoltoni and Others, cited above, paragraph 41, and Case C-157/96 The Queen v MAFF and Another, ex parte National Farmers' Union and Others [1998] ECR I-2211, paragraph 60).
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31. In those circumstances, an answer by the Court to the questions put by the Juzgado de lo Social n o 3 de Orense would be of no use to that court.
| 0 |
861,993 |
33. The Court has previously held that Article 41(1) of the Additional Protocol may be relied on by an undertaking established in Turkey which lawfully provides services in a Member State and by Turkish nationals who are lorry drivers employed by such an undertaking (see judgments in Abatay and Others , EU:C:2003:572, paragraphs 105 and 106, and Demirkan , EU:C:2013:583, paragraph 40).
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80. Consequently, the interpretation given to the provisions of European Union law concerning the internal market cannot be automatically applied by analogy to the interpretation of the EC‑Switzerland Air Transport Agreement, unless there are express provisions to that effect laid down in the Agreement itself (see, to that effect, Grimme , paragraph 29; Fokus Invest , paragraph 28; and Hengartner and Gasser , paragraph 42).
| 0 |
861,994 |
34. As to those principles, it is settled case-law that such time-limits prescribed in national law may not be less favourable than those governing similar domestic applications (principle of equivalence) and may not be framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness) (see, in particular, Case 33/76 Rewe [1976] ECR 1989, paragraph 5, and Case C-159/00 Sapod Audic [2002] ECR I-5031, paragraph 52).
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69. It may be regarded as legitimate for a Member State to grant such an allowance only after it has been possible to establish that a genuine link exists between the person seeking work and the employment market of that State.
| 0 |
861,995 |
41. However, it is clear from the case-law that the need to ensure the effectiveness of fiscal supervision constitutes an overriding reason relating to the general interest capable of justifying a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty and that a Member State is authorised to apply measures which enable the amount of costs deductible in that Member State, which were incurred in another Member State, to be ascertained clearly and precisely (see, in particular, Case C-250/95 Futura Participations and Singer [1997] ECR I-2471, paragraph 31, and Case C-39/04 Laboratoires Fournier [2005] ECR I-2057, paragraph 24).
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93. That obligation corresponds to the objective set out in the seventh recital in the preamble to the directive, according to which each special area of conservation must form part of a coherent European ecological network.
| 0 |
861,996 |
12. It must be borne in mind, first of all, that, according to settled case-law, although direct taxation is a competence of the Member States, they must none the less exercise it consistently with Community law (see Case C-334/02 Commission v France [2004] ECR I-2229, paragraph 21, and Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 29).
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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 |
861,997 |
48 Moreover, Article 39(1) of the Treaty expressly refers in subparagraph (a) to increasing productivity and in subparagraph (b) to ensuring a fair standard of living for the agricultural community, and Article 40(3) provides for various means to ensure that those objectives are attained, including aids for production or marketing and common machinery for stabilizing imports of the type introduced by the Regulation.
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Enfin, il convient de relever que les lignes directrices de 2006, tout comme les lignes directrices de 1998, déterminent,
de manière générale et abstraite, la méthodologie que la Commission s’est imposée aux fins de la fixation du montant des amendes
infligées en vertu de l’article 23, paragraphe 2, du règlement n° 1/2003 (voir, par analogie, en ce qui concerne les lignes
directrices de 1998, arrêts du 22 mai 2008, Evonik Degussa/Commission, C‑266/06 P, EU:C:2008:295, point 60, ainsi que du 18 juillet
2013, Schindler Holding e.a./Commission, C‑501/11 P, EU:C:2013:522, point 67).
| 0 |
861,998 |
30. Next, so far as concerns, in particular, the complaint that the specific application of that presumption by the Commission, and as confirmed by the General Court, rendered the presumption irrebuttable, it is to be noted that, in paragraph 30 et seq. of the judgment under appeal, the General Court examined whether FLS Plast had succeeded in rebutting the presumption by establishing that its subsidiary acted independently on the market, and concluded that that was not the case. Accordingly, the mere fact that it is difficult to prove the opposite in order to rebut a presumption does not in itself mean that it is in fact irrebuttable (see, inter alia, Eni v Commission EU:C:2013:289, paragraph 68 and the case-law cited).
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23 Furthermore, both Decree-Law No 1153/1972 and the combined provisions of Law No 1892/1990 and the implementing decree of 7 and 21 February 1991 expressly make the award of the benefits for which they provide subject to conditions concerning the Greek nationality or Greek origins of family members.
| 0 |
861,999 |
41. Such an obligation applies to Member States in order to anticipate any change in the situation existing in them at a given point in time and in order to ensure that all legal persons in the Community, including those in Member States in which a particular activity referred to in a directive does not exist, may know with clarity and precision, what are, in all circumstances, their rights and obligations (see, to that effect, Commission v Greece , paragraph 27; Commission v Ireland , paragraph 12; Case C‑441/00 Commission v United Kingdom , paragraph 16; and Commission v Luxembourg , paragraph 13).
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64 ARTICLE 85 DRAWS A DISTINCTION BETWEEN THE CONCEPT OF " CONCERTED PRACTICES " AND THAT OF " AGREEMENTS BETWEEN UNDERTAKINGS " OR OF " DECISIONS BY ASSOCIATIONS OF UNDERTAKINGS "; THE OBJECT IS TO BRING WITHIN THE PROHIBITION OF THAT ARTICLE A FORM OF COORDINATION BETWEEN UNDERTAKINGS WHICH, WITHOUT HAVING REACHED THE STAGE WHERE AN AGREEMENT PROPERLY SO-CALLED HAS BEEN CONCLUDED, KNOWINGLY SUBSTITUTES PRACTICAL COOPERATION BETWEEN THEM FOR THE RISKS OF COMPETITION .
| 0 |
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