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59. In that context, the Court has held that the taxpayer should not be precluded a priori from providing relevant documentary evidence enabling the tax authorities of the Member State imposing the tax to ascertain, clearly and precisely, that he is not attempting to avoid or evade the payment of taxes (see, to that effect, Case C‑254/97 Baxter and Others [1999] ECR I‑4809, paragraphs 19 and 20; Case C‑39/04 Laboratoires Fournier [2005] ECR I‑2057, paragraph 25; and ELISA , paragraph 96).
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59. In this regard, it is to be borne in mind that, at paragraph 197 of Kadi and Al Barakaat International Foundation v Council and Commission , the Court considered that a bridge had been constructed between the actions of the Community involving economic measures under Articles 60 EC and 301 EC and the objectives of the EU Treaty, as it stood before the Treaty of Lisbon entered into force, in the sphere of external relations, including the CFSP. Article 215 TFEU expressly provides such a bridge, but this is not the case with Article 75 TFEU, which creates no link with decisions taken under the CFSP.
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43. It must be borne in mind that the prohibition on discrimination between male and female workers contained in Article 141 EC, being mandatory, not only applies to the action of public authorities but extends also to all agreements which are intended to regulate paid labour collectively (see Case 43/75 Defrenne [1976] ECR 455, paragraph 39; Kowalska , cited above, paragraph 12; and Case C-284/02 Sass [2004] ECR I‑0000, paragraph 25).
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20 Consequently, the answer to the first question must be that Article 6(1)(b) of Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources, may not be applied to the master and other crew members qua nationals of a Member State, irrespective of the State in which the vessel is registered and the sea area in which the vessel is located.
Applicability of Article 6 in different sea areas
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7 It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, in particular, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26).
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12 Since the proportion of the stakes which is paid out as winnings is mandatorily fixed in advance, it cannot be regarded as forming part of the consideration for the provision of the machine to the players, nor as the price for any other service provided to the players, such as giving them the opportunity of winning or the payment of winnings itself.
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50. However, that fact does not deprive the case-law of its usefulness in interpreting Articles 77 and 78 of Regulation No 1408/71. Indeed, unlike the previous version of Article 76 of Regulation No 1408/71, which concerns cases of overlapping entitlements to family benefits where such benefits are due because professional activity has been carried out in the Member State of residence of family members and under the legislation of the other Member State, those Articles 77 and 78 concerning the right to family allowances of pensioners and orphans of deceased workers were not supplemented by Regulation No 3427/89, which none the less amended in several respects the version then in force of Regulation No 1408/71 on the grant of family benefits (see, to that effect, Case C‑16/09 Schwemmer [2010] ECR I-0000, paragraph 57).
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106. Secondly, concerning the establishment of a transitional period such as that at issue in the main proceedings, it needs in particular to be verified whether the latter might not undermine the consistency of the legislation concerned by leading to a result contrary to the objective pursued.
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43. The Court has also pointed out that the number of hospitals, their geographical distribution, the mode of their organisation and the facilities with which they are provided, and even the nature of the medical services which they are able to offer, are all matters for which planning, generally designed to satisfy various needs, must be possible. For one thing, such planning seeks to ensure that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned. For another thing, it assists in meeting a desire to control costs and to prevent, as far as possible, any wastage of financial, technical and human resources. Such wastage would be all the more damaging because it is generally recognised that the hospital care sector generates considerable costs and must satisfy increasing needs, while the financial resources which may be made available for healthcare are not unlimited, whatever the mode of funding applied ( Smits and Peerbooms , paragraphs 76 to 79, and Watts , paragraphs 108 and 109).
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142. The Court has also held that, if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the European Union judicature relates only to those aspects of the decision which concern that addressee. Unchallenged aspects concerning other addressees, on the other hand, do not form part of the matter to be tried by the Union judicature ( Commission v AssiDomän Products and Others , paragraph 53).
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28. The Court has also repeatedly ruled that that requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance (Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 257; Commission v Council , paragraph 46; Germany v Commission , paragraph 34; France v Parliament and Council , paragraph 13; and Spain v Council , paragraph 13).
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15. It is true that, according to the Court’s case-law, even in such a purely internal situation, the Court’s answer may nevertheless be useful to the referring court, in particular if its national law required it to grant the same rights to a national of a given Member State as those which a national of another Member State in the same situation would derive from European Union law (see, inter alia, Case C‑448/98 Guimont [2000] ECR I-10663, paragraph 23; Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, paragraph 29; Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I-11421, paragraph 30; and Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez [2010] ECR I-0000, paragraph 36).
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54
The request for an institution to act must be sufficiently clear and precise to enable that institution to ascertain in specific terms the content of the decision that it is being asked to adopt and must also show what matters are understood to require the institution to define its position (see, by analogy, judgment of 10 June 1986, Usinor v Commission, 81/85 and 119/85, EU:C:1986:234, paragraph 15, and order of 18 November 1999, Pescados Congelados Jogamar v Commission, C‑249/99 P, EU:C:1999:571, paragraph 18).
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22. Where the marketing of a product is always accompanied by a minimal supply of services (such as the displaying of the products on shelves, the issuing of an invoice, etc.), only services other than those which necessarily accompany the marketing of a product may be taken into account in assessing the part played by the supply of services within the whole of a complex transaction also involving the supply of a product.
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28 That is not the position in the case of an act of the Commission which reflects its intention, or that of one of its departments, to follow a particular line of conduct (United Kingdom v Commission, cited above, paragraph 13) or which merely confirms a previous act in such a way that annulment of the confirmatory act would follow from annulment of the previous act (Case 26/76 Metro v Commission [1977] ECR 1875, paragraph 4).
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39. For the sake of completeness, it must be noted that, as recitals 3, 21 and 24 in the preamble to Regulation No 1782/2003 make clear, environmental protection forms part of the objectives of the single payment scheme. The Court has also held that environmental protection, one of the essential objectives of the European Union, must be regarded as forming part of the common agricultural policy (Case C-428/07 Horvath [2009] ECR I-6355, paragraph 29). Moreover, Article 2 point (1) of Regulation No 796/2004 expressly provides that arable land, and consequently agricultural areas pursuant to Article 2(a) of Regulation No 795/2004, is land maintained in good agricultural and environmental condition within the meaning of Article 5 of Regulation No 1782/2003.
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38. As the Court has held, national authorities enjoy a sufficient measure of discretion in that area to enable them to determine what is required in order to ensure consumer protection and the preservation of order in society and — provided that the conditions laid down in the case-law are in fact met — it is for each Member State to assess whether, in the context of the legitimate aims which it pursues, it is necessary to prohibit, wholly or in part, betting and gaming or only to restrict them and, to that end, to lay down more or less strict supervisory rules (see, to that effect, Stoß and Others , paragraph 76, and Case C-46/08 Carmen Media Group [2010] ECR I-8149, paragraph 46).
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69. Par conséquent, s’il n’est, en principe, pas possible de déduire directement de la non‑conformité d’une situation de fait avec les objectifs fixés à l’article 13 de la directive 2008/98 que l’État membre concerné a nécessairement manqué aux obligations imposées par cette disposition, à savoir prendre les mesures nécessaires pour s’assurer que les déchets soient éliminés sans mettre en danger la santé de l’homme et sans porter préjudice à l’environnement, la persistance d’une telle situation de fait, notamment lorsqu’elle entraîne une dégradation significative de l’environnement pendant une période prolongée sans intervention des autorités compétentes, peut révéler que les États membres ont outrepassé la marge d’appréciation que leur confère cet article (voir, en ce sens, arrêts Commission/Italie, C‑297/08, EU:C:2010:115, point 97 et jurisprudence citée, ainsi que Commission/Grèce, C‑677/13, EU:C:2014:2433, point 78 et jurisprudence citée).
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34. A tariff established by a professional organisation such as the Osservatorio may none the less have the character of legislation, inter alia, where the members of that organisation are experts who are independent of the economic operators concerned and they are required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the public interest and the interests of undertakings in other sectors or users of the services in question (see, to that effect, judgments in Reiff , EU:C:1993:886, paragraphs 17 to 19 and 24; Delta Schiffahrts- und Speditionsgesellschaft , EU:C:1994:240, paragraphs 16 to 18 and 23; DIP and Others , C‑140/94 to C‑142/94, EU:C:1995:330, paragraphs 18 and 19; Commission v Italy , C‑35/96, EU:C:1998:303, paragraph 44; and Arduino , EU:C:2002:97, paragraph 37).
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23 Applying that case-law, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning Community provisions in situations where the facts of the cases being considered by the national courts were outside the scope of Community law but where those provisions had been rendered applicable either by domestic law or merely by virtue of terms in a contract (see, as regards the application of Community law by domestic law, Dzodzi and Gmurzynska-Bscher, cited above; Case 166/84 Thomasdünger [1985] ECR 3001; Case C-384/89 Tomatis and Fulchiron [1991] ECR I-127 and, as regards the application of Community law by the effect of contractual provisions, Case C-88/91 Federconsorzi [1992] ECR I-4035 and Case C-73/89 Fournier [1992] ECR I-5621, all those cases being hereinafter referred to as `the Dzodzi line of cases'). In those cases, the provisions of domestic law and the relevant contractual terms, which incorporated Community provisions, clearly did not limit application of the latter.
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50. According to settled case-law, the interpretation which the Court, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, gives to a rule of European Union law clarifies and defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may and must be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied (see, inter alia, Case C‑92/11 RWE Vertrieb EU:C:2013:180, paragraph 58 and the case-law cited).
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43. En l’espèce, il ne ressort pas du dossier que la République italienne a demandé à la Commission de modifier la décision 2008/854 en vue de lui permettre de surmonter les difficultés liées à la mise en œuvre effective et immédiate de celle-ci.
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36. En effet, dès lors que les modalités de restitution des impôts nationaux indûment perçus relèvent du droit national, la question de la possibilité d’une application rétroactive de telles modalités relève également de ce droit tant que cette éventuelle application rétroactive ne compromet pas le respect du principe d’effectivité (arrêt Grundig Italiana, précité, point 36).
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36 Given that the detailed rules governing the recovery of national taxes levied though not due are a matter for the national legislature, the question whether such rules may apply retroactively is equally a question of national law, provided that any such retroactive application does not contravene the principle of effectiveness.
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143. Since a complex economic appraisal is involved here, it should also be noted that, according to settled case-law, in reviewing an act of the Commission which has necessitated such an appraisal, the Court must confine itself to verifying whether the Commission complied with the relevant rules governing procedure and the statement of reasons, whether the facts on which the contested finding was based have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers (see, to that effect, Case C‑56/93 Belgium v Commission [1996] ECR I‑723, paragraph 11, and Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia v Commission [2003] ECR I‑4035, paragraph 39).
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29. It follows from the foregoing considerations that the pleas of inadmissibility must be rejected.
Substance
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32 The fact remains that a goods duty which, as the Court held in paragraphs 20 to 24 of Haahr, forms part of a general system of internal dues applying systematically to categories of products according to objective criteria applied without regard to the origin of the products, constitutes an internal measure of a fiscal nature within the meaning of Article 18 of the EEC/Sweden Agreement, and that application to imported products alone of a surcharge in addition to the duty payable on domestic and imported products is contrary to the prohibition of discrimination laid down in that provision.
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15 In these circumstances, the Decision cannot be considered to affect operators whose number or identity was fixed and ascertainable at the time of its adoption.
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9. It must be borne in mind that Article 4 of the Directive lays down a protection regime which is specifically targeted and reinforced both for the species listed in Annex I and for migratory species, an approach justified by the fact that they are, respectively, the most endangered species and the species constituting a common heritage of the Community (see to that effect, Case C‑169/89 Van den Burg [1990] ECR I-2143, paragraph 11, and Case C‑44/95 Royal Society for the Protection of Birds [1996] ECR I‑3805, paragraphs 23 and 26).
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74. The broad and unambiguous wording of the provisions referred to in paragraphs 71 and 73 above confirms that Article 2(1)(b) of Regulation No 2580/2001 encompasses acts such as those referred to in Questions 2 and 3.
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30. In the absence of a definition in the Sixth Directive, it should be borne in mind that in interpreting a provision of Community law, such as point 2 of Annex D to that directive, it is necessary to consider not only its wording, but also the context in which it occurs and the objective pursued by the rules of which it is part (see inter alia, to this effect, Case C‑156/98 Germany v Commission [2000] ECR I‑6857, paragraph 50, and Case C‑53/05 Commission v Portugal [2006] ECR I‑6215, paragraph 20).
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46
Accordingly, the answer to the first question is that Article 7(3)(b) of Directive 2004/38 must be interpreted as meaning that a national of a Member State retains the status of self-employed person for the purposes of Article 7(1)(a) of that directive where, after having lawfully resided in and worked as a self-employed person in another Member State for approximately four years, that national has ceased that activity, because of a duly recorded absence of work owing to reasons beyond his control, and has registered as a jobseeker with the relevant employment office of the latter Member State.
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44. It follows that a farmer who has entered into agri-environmental commitments pursuant to Regulations No 2078/92 and No 1257/1999 cannot be penalised in the context of a subsequent European Union support scheme by reason of those very commitments, as that farmer was not in a position to foresee that his decision might have consequences on future direct payments under rules adopted subsequently (see, to that effect, Nijemeisland , paragraph 45).
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40. Il y a lieu de relever, à titre liminaire, que, contrairement à ce que soutient la Commission, la notion d’«État» ne doit pas être détachée de l’expression dont elle fait partie pour faire l’objet d’une interprétation séparée. La portée d’une notion de droit communautaire, telle que celle de services effectués pour un autre État, doit être appréciée dans son ensemble et interprétée en fonction de l’économie et des objectifs poursuivis par la réglementation dont elle fait partie (voir, en ce sens, arrêts du 18 mai 2000, KVS International, C‑301/98, Rec. p. I-3583, point 21; du 19 septembre 2000, Allemagne/Commission, C-156/98, Rec. p. I-6857, point 50; du 14 juin 2001, Kvaerner, C-191/99, Rec. p. I-4447, point 30, ainsi que du 16 mai 2002, Schilling et Nehring, C‑63/00, Rec. p. I‑4483, point 24).
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40. Moreover, detention and deportation based solely on the failure of the person concerned to comply with legal formalities concerning the monitoring of aliens impair the very substance of the right of residence directly conferred by Community law and are manifestly disproportionate to the seriousness of the infringement (Case 157/79 Pieck [1980] ECR 2171, paragraphs 18 and 19; Case C-265/88 Messner [1989] ECR 4209, paragraph 14; MRAX , paragraph 78).
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24. By way of derogation from the fundamental principle laid down in Article 2(1) of the Regulation, attributing jurisdiction to the courts of the defendant’s domicile, Section 2 of Chapter II thereof makes provision for certain special jurisdictional rules, such as that laid down in Article 5(3) of that regulation ( Melzer , paragraph 23).
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67. In that regard, it must be remembered that in the context of a reference for a preliminary ruling the need to provide an interpretation of Community law which will be of use to the national court makes it necessary for the referring court to define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6, and Joined Cases C-421/00, C-426/00 and C-16/01 Sterbenz and Haug [2003] ECR I-1065, paragraph 20). The information supplied in the decision making the reference thus serves to enable the Court to give useful answers (see, in particular, the order of 28 June 2000 in Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 14).
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26 According to established case-law, it is necessary to determine whether the increased reductions under the Maribel bis/ter scheme entail advantages accruing exclusively to certain undertakings or certain sectors and do not therefore fulfil the condition of specificity which constitutes one of the characteristics of the concept of State aid namely the selective character of the measures in question (see, to this effect, the judgment in France v Commission, cited above, paragraph 24, and Ecotrade, cited above, paragraph 40).
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33
As regards, second, the objectives pursued by Directive 86/653, it is important to note that that directive seeks, inter alia, to protect the commercial agent in his relations with the principal (see, to that effect, judgments in Honyvem Informazioni Commerciali, C‑465/04, EU:C:2006:199, paragraph 19, and Quenon K., C‑338/14, EU:C:2015:795, paragraph 23). The Court has already held that Article 17 of that directive is, in that regard, of particular importance (see, to that effect, judgment in Unamar, C‑184/12, EU:C:2013:663, paragraph 39). It is therefore necessary to interpret the wording of Article 17(2) in a manner which contributes to that protection of the commercial agent and which therefore takes full account of the merits of the latter in carrying out the transactions assigned to him. The concept of ‘new customers’, within the meaning of that provision, may not therefore be construed restrictively.
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27
In matters relating to tort, delict or quasi-delict, the courts for the place where the harmful event occurred or may occur are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence (judgments of 16 May 2013, Melzer, C‑228/11, EU:C:2013:305, paragraph 27, and of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 40).
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109. In order to be appropriate, such remuneration must be reasonable in relation to the economic value of the service provided. In particular, it must be reasonable in relation to the actual or potential number of persons who enjoy or wish to enjoy the service (see, by analogy, Case C-61/97 FDV [1998] ECR I-5171, paragraph 15, and Case C-52/07 Kanal 5 and TV 4 [2008] ECR I-9275, paragraphs 36 to 38).
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76. Consequently, a person who files an application for registration of a sign as a trade mark cannot rely, to his advantage and in order to secure an identical decision, on a possibly unlawful act committed to the benefit of someone else (see, to that effect, order in Bild digital and ZVS , paragraph 18).
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43 In view of the link between the Brussels Convention and Community law (see Case C-398/92 Mund & Fester [1994] ECR I-467, paragraph 12, and Case C-7/98 Krombach [2000] ECR I-1935, paragraph 24), regard must be had to the substance of that concept in Community law.
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48. First, the function of the graphic representability requirement is, in particular, to define the mark itself in order to determine the precise subject of the protection afforded by the registered mark to its proprietor.
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45. In that regard, it should 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, for example, Joined Cases C‑133/93, C‑300/93 and C-362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraph 41, and Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, paragraph 60).
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100. Il convient également de rappeler que, selon une jurisprudence constante de la Cour, mentionnée par le Tribunal au point 372 de l’arrêt attaqué, la suppression d’une aide illégale par voie de récupération est la conséquence logique de la constatation de son illégalité, de sorte que la récupération de cette aide, en vue du rétablissement de la situation antérieure, ne saurait, en principe, être considérée comme une mesure disproportionnée par rapport aux objectifs des dispositions du traité en matière d’aides d’État (voir, notamment, arrêt du 11 mars 2010, CELF et ministre de la Culture et de la Communication, C‑1/09, non encore publié au Recueil, point 54 et jurisprudence citée).
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12 Finally, the Court has held in relation to Article 59 of the Treaty that a Member State cannot be denied the right to take measures to prevent the exercise by a person whose activity is entirely or principally directed towards its territory of the freedoms guaranteed by the Treaty for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within that State (judgment in Case 33/74 Van Binsbergen v Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299, paragraph 13).
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65. However, where the grounds of a judgment of the Court of First Instance are contrary to Community law, that judgment need not be set aside if the operative part of the judgment appears to be well founded on other legal grounds (see, to that effect, Case C‑30/91 P Lestelle v Commission [1992] ECR I‑3755, paragraph 28, and Case C‑294/95 P Ojha v Commission [1996] ECR I‑5863, paragraph 52).
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27. It is true that the activities of two distinct plants must be the subject of a separate examination for the purposes of applying Directive 2000/76 (see, to that effect, Lahti Energia , paragraphs 24 and 25).
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24. As a preliminary point, it must be stated that, for the purposes of applying Directive 2000/76, where a co-generation plant comprises a number of boilers, each boiler and its associated equipment are to be regarded as constituting a separate plant (Case C-251/07 Gävle Kraftvärme [2008] ECR I-0000, paragraph 33).
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23 In the exercise of its powers under Articles 211 EC and 226 EC, the Commission does not have to show that there is a specific interest in bringing the action since its function is, in the general interest of the Community, to ensure that Member States give effect to the Treaty and to obtain a declaration of any failure to fulfil the obligations deriving therefrom, with a view to bringing it to an end (Case 167/73 Commission v France [1974] ECR 359, paragraph 15, Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 21, and Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 59).
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Il ressort de la comparaison de ces mesures que le Conseil s’est réservé la compétence pour adopter les plus sensibles d’entre
elles, à savoir l’intégration, dans le règlement adopté sur la base du traité FUE, des désignations décidées par le Conseil
de sécurité et l’application des mesures visées à l’article 23, paragraphes 2 et 3, du règlement n° 267/2012, en ce qu’elles
ont une incidence particulièrement importante sur les personnes physiques ou morales, les entités ou les organismes concernés
(arrêt du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 52).
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30. It must be noted first that Article 18 of the Sixth Directive relates to the conditions governing the exercise of the right to deduct, whilst the existence of such a right is covered by Article 17 of that directive (see Case C-338/98 Commission v Netherlands [2001] ECR I-8265, paragraph 71).
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29. In that connection, it must be recalled that the classification of national provisions by a Member State as public‑order legislation applies to national provisions compliance with which has been deemed to be so crucial for the protection of the political, social or economic order in the Member State concerned as to require compliance therewith by all persons present on the national territory of that Member State and all legal relationships within that State (Joined Cases C‑369/96 and C‑376/96 Arblade and Others [1999] ECR I-8453, paragraph 30).
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35. In the case in the main proceedings, it must be observed that the resources, in particular intellectual resources, described by the referring court and referred to in paragraphs 14 to 18 of this judgment, are deployed for the purpose of determining, in the course of arranging the leagues concerned, the date, the time and the identity of teams corresponding to each fixture of those leagues, in accordance with a set of rules, parameters and organisational constraints as well as the specific requests of the clubs concerned (see Case C‑46/02 Fixtures Marketing , cited above, paragraph 41; Case C‑338/02 Fixtures Marketing , cited above, paragraph 31; and Case C‑444/02 Fixtures Marketing , cited above, paragraph 47).
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70 In the light of all the foregoing considerations, it must be held that by failing to subject to VAT tolls collected for the use of toll roads and toll bridges as consideration for the service supplied to users, where that service is not provided by a body governed by public law within the meaning of Article 4(5) of the Sixth Directive, the United Kingdom has failed to fulfil its obligations under Articles 2 and 4 of that directive.
The second claim
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19. In paragraph 52 of that judgment, the Court held that, in the light of the considerations referred to in paragraphs 28 to 35 of the judgment, to the effect, in particular, that SOAs are commercial undertakings performing their activities in conditions of competition and do not have any power to make decisions connected with the exercise of public powers, SOAs’ certification activities are not directly and specifically connected with the exercise of official authority within the meaning of Article 51 TFEU.
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42. Second, under Article 4(2) of Directive 90/435, the Member States retain the option of providing that any losses resulting from the distribution of the profits of the subsidiary may not be deducted from the taxable profits of the parent company. That provision enables Member States to adopt measures to prevent a parent company from enjoying a double tax advantage. Indeed, that company could, first, by virtue of the first indent of Article 4(1) of that directive, receive profits without being taxed and, second, obtain a tax reduction by means of the deduction in respect of charges relating to losses for the holding resulting from the distribution of such profits.
| 0 |
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29
As regards the formal conditions for the right of deduction, in accordance with Article 178(a) of Directive 2006/112, the exercise of that right is subject to holding an invoice drawn up in accordance with Article 226 of that directive (see, to that effect, judgments of 1 March 2012, Kopalnia Odkrywkowa Polski Trawertyn P. Granatowicz, M. Wąsiewicz, C‑280/10, EU:C:2012:107, paragraph 41, and of 22 October 2015, PPUH Stehcemp, C‑277/14, EU:C:2015:719, paragraph 29). Under Article 226(3) of that directive, the invoice must mention inter alia the VAT identification number under which the taxable person made the supply of goods or services.
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30
The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 77 and the case-law cited).
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40. The jurisdiction of the Court of Justice in an appeal is limited to review of the findings of law on the pleas argued before the court of first instance. Consequently, the Court of Justice has jurisdiction, in such proceedings, solely to examine whether the argument within the appeal identifies an error of law vitiating the judgment under appeal (see, to that effect, Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 35; Case C‑76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraph 47; and Case C‑348/06 P Commission v Girardot [2008] ECR I‑833, paragraph 49).
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78. In that situation, treating equally the use of a company car by the employees in question and other residents of the Kingdom of Denmark as regards the imposition of such a tax is legitimate and is sufficient to justify the restriction on freedom of movement for workers.
| 0 |
862,231 |
57
An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 158 and the case-law cited).
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4 TAKING ACCOUNT OF THE FUNDAMENTAL NATURE, IN THE SCHEME OF THE TREATY, OF THE PRINCIPLES OF FREEDOM OF MOVEMENT AND EQUALITY OF TREATMENT OF WORKERS WITHIN THE COMMUNITY, THE EXCEPTIONS MADE BY ARTICLE 48 ( 4 ) CANNOT HAVE A SCOPE GOING BEYOND THE AIM IN VIEW OF WHICH THIS DEROGATION WAS INCLUDED .
THE INTERESTS WHICH THIS DEROGATION ALLOWS MEMBER STATES TO PROTECT ARE SATISFIED BY THE OPPORTUNITY OF RESTRICTING ADMISSION OF FOREIGN NATIONALS TO CERTAIN ACTIVITIES IN THE PUBLIC SERVICE .
ON THE OTHER HAND THIS PROVISION CANNOT JUSTIFY DISCRIMINATORY MEASURES WITH REGARD TO REMUNERATION OR OTHER CONDITIONS OF EMPLOYMENT AGAINST WORKERS ONCE THEY HAVE BEEN ADMITTED TO THE PUBLIC SERVICE .
THE VERY FACT THAT THEY HAVE BEEN ADMITTED SHOWS INDEED THAT THOSE INTERESTS WHICH JUSTIFY THE EXCEPTIONS TO THE PRINCIPLE OF NON-DISCRIMINATION PERMITTED BY ARTICLE 48 ( 4 ) ARE NOT AT ISSUE .
| 0 |
862,232 |
32
In those circumstances, the meaning and scope of the term ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision, cannot be left to the assessment of each Member State (see, by analogy, judgments of 17 July 2008, Kozłowski, C‑66/08, EU:C:2008:437, paragraph 43, and of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraph 38).
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15 Thus, that legislation, the effect of which is to limit the commercial freedom of traders irrespective of the actual characteristics of the product referred to, concerns the selling arrangements of certain goods, inasmuch as it prohibits the sale, other than exclusively by pharmacies, of processed milk for infants and thus generally determines the points of sale where they may be distributed.
| 0 |
862,233 |
114. With regard to statements of figures relating to the calculation of fines, it is appropriate to point out that, however useful and desirable such figures may be, they are not essential to compliance with the duty to state reasons for a decision imposing fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulas alone, divest itself of its own power of assessment (Case C-291/98 P Sarrió v Commission [2000] ECR I-9991, paragraphs 75 to 77, and Limburgse Vinyl Maatschappij , cited above, paragraph 464).
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47 Since, moreover, the E 101 certificate is binding on that competent institution, there can be no justification for the person who calls on that worker's services not to act upon that certificate. If he has doubts as to the validity of the certificate, that person must however inform the institution in question.
| 0 |
862,234 |
26. Therefore, by establishing a tax on that conversion, Article 167 of the Code amounts in reality to taxing the very issue of that security as it forms an integral part of an overall transaction with regard to the raising of capital, thereby undermining the effectiveness of Article 5(2)(a) of the directive (see, to that effect, judgments in FECSA and ACESA , EU:C:1998:508, paragraphs 18 and 19, and in Commission v Belgium , EU:C:2004:450, paragraphs 32 and 33).
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2. The reference was made in proceedings brought by Michaniki AE (‘Michaniki’), a company governed by Greek law, against the Ethniko Simvoulio Radiotileorasis (National Radio and Television Council; ‘the ESR’) and the Ipourgos Epikratias (Minister of State) concerning the decision by which the ESR issued to Pantechniki AE (‘Pantechniki’), also a company governed by Greek law, a certificate of conformity, in the context of a procedure for the award of a public works contract.
Legal context
Community provisions
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862,235 |
57. In that context, as most of the Member States which submitted observations to the Court have noted, the legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States. In the absence of Community harmonisation in the field, it is for each Member State to determine in those areas, in accordance with its own scale of values, what is required in order to ensure that the interests in question are protected (see, inter alia, Case 34/79 Henn and Darby [1979] ECR 3795, paragraph 15; Case C-275/92 Schindler [1994] ECR I-1039, paragraph 32; Case C-268/99 Jany and Others [2001] ECR I‑8615, paragraphs 56 and 60, and Placanica and Others , paragraph 47).
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67. The concept of BTKNEEC must be examined by weighing the best technology and the costs envisaged against the benefits that a more effective water collection or treatment system may provide. Within this framework, the costs incurred cannot be disproportionate to the benefits obtained.
| 0 |
862,236 |
49. In those circumstances, it should be remembered that, in proceedings under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court (see, in particular, Case C‑326/00 IKA [2003] ECR I‑1703, paragraph 27 and case-law cited).
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37. Quant au point de savoir si un contrat de concession peut être qualifié de contrat de «fourniture de services» au sens de l’article 5, point 1, sous b), second tiret, du règlement, il convient de rappeler que, selon la définition donnée par la Cour, la notion de «services» au sens de cette disposition implique, pour le moins, que la partie qui les fournit effectue une activité déterminée en contrepartie d’une rémunération (arrêt du 23 avril 2009, Falco Privatstiftung et Rabitsch, C‑533/07, Rec. p. I‑3327, point 29).
| 0 |
862,237 |
125. In that regard, it must be pointed out that, according to settled case-law, the operative part of an act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (see Case C‑355/95 P TWD v Commission [1997] ECR I‑2549, paragraph 21, and Case C‑404/97 Commission v Portugal , cited above, paragraph 41).
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41 So far as concerns the alleged material impossibility of implementing the decision because, in the submission of the Portuguese Government, its operative part is impossible to understand, it must be pointed out that the operative part of an act is indissociably linked to the statement of the reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (Case C-355/95 P TWD v Commission [1997] ECR I-2549, paragraph 21).
| 1 |
862,238 |
25. The Court has held in respect of such a situation that, under Article 3 of Directive 80/987, the competent guarantee institution is that of the Member State in which, in accordance with Article 2(1) of the directive, either it is decided to open the proceedings for the collective satisfaction of creditors’ claims, or it has been established that the employer’s undertaking has been definitively closed down (see Mosbæk , paragraphs 20 and 27).
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45. À titre liminaire, il convient de rappeler que, dans le domaine des contrôles et des sanctions des irrégularités commises au regard du droit de l’Union, le législateur de l’Union a, en adoptant le règlement n° 2988/95, posé une série de principes et exigé que, en règle générale, l’ensemble des règlements sectoriels, tels que les règlements n os 360/95 et 1623/2000, respectent ces principes (voir arrêts du 1 er juillet 2004, Gerken, C‑295/02, Rec. p. I‑6369, point 56, et du 21 juillet 2011, Beneo-Orafti, C‑150/10, non encore publié au Recueil, point 69).
| 0 |
862,239 |
43 It must be recalled that the Treaty provisions concerning freedom of movement for persons do not prevent the adoption of rules or practices excluding foreign players from certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, such as, for example, matches between national teams from different countries. The Court stressed, however, that that restriction on the scope of the provisions in question must remain limited to its proper objective and cannot be relied upon to exclude the whole of a sporting activity (see Case 13/76 Donà v Mantero [1976] ECR 1333, paragraphs 14 and 15, and Bosman, paragraphs 76 and 127).
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51
It should be noted, as observed by the Advocate General in point 54 of his Opinion, that that provision encapsulates the basic principle applying to appeals, namely that an appeal must be directed against the operative part of the General Court’s decision and may not merely seek the amendment of some of the grounds of that decision (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 43 to 45).
| 0 |
862,240 |
80. Secondly, it must be observed that the Court has consistently held that a Member State breaches 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 cannot avoid abusing its dominant position (see to that effect, in particular, Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 20; Case C-242/95 GT-Link [1997] ECR I-4449, paragraphs 33 and 34; and Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraph 61).
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32. Consequently, the withholding obligation and joint liability constitute a restriction on the freedom to provide services.
| 0 |
862,241 |
23
It also follows from the Court’s case-law that the calculation of the interest payable by the Treasury which does not take as its starting point the date on which the overpaid VAT would have had to be repaid in the normal course of events in accordance with the VAT Directive is, in principle, contrary to the requirements of Article 183 of that directive (judgments of 12 May 2011, Enel Maritsa Iztok 3, C‑107/10, EU:C:2011:298, paragraph 51, and of 24 October 2013, Rafinăria Steaua Română, C‑431/12, EU:C:2013:686, paragraph 24).
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51. Regarding such legislation under which the requirement on the part of the tax authorities to pay interest is contingent upon the completion of a tax investigation, it has been consistently held by the Court that calculation of the interest payable by the Treasury which does not take as its starting point the date on which the excess VAT would have had to be repaid in the normal course of events in accordance with the VAT Directive would be contrary, in principle, to the requirements of Article 183 of that directive (see, to that effect, Molenheide and Others, paragraphs 63 and 64).
| 1 |
862,242 |
15. As regards the method to be used for comparing the pay of the workers concerned in order to determine whether the principle of equal pay is being complied with, again according to the case-law, genuine transparency permitting an effective review is assured only if that principle applies to each aspect of remuneration granted to men and women, excluding any general overall assessment of all the consideration paid to workers (see Barber , cited above, paragraphs 34 and 35; and Brunnhofer , cited above, paragraph 35). Accordingly, it is necessary for a separate comparison in respect of the pay for regular hours and the pay for additional hours.
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31 The Court has also held (see, inter alia, Case 29/77 Roquette Frères v Administration des Douanes [1977] ECR 1835, paragraphs 19 and 20) that where the evaluation of a complex economic situation is involved, the Commission and the Management Committee enjoy a wide measure of discretion. In reviewing the legality of the exercise of such discretion, the Court must confine itself to examining whether it discloses manifest error or constitutes misuse of power or a clear disregard of the limits of its discretion on the part of that institution.
| 0 |
862,243 |
21 The right conferred on women by the direct effect of Article 4(1) of Directive 79/7 to claim benefits for incapacity for work under the same conditions as men must be exercised under the conditions determined by national law, provided that, as the Court has consistently held, those conditions are no less favourable than those relating to similar domestic actions and that they are not framed so as to render virtually impossible the exercise of rights conferred by Community law (see Case C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475, paragraph 15, and Emmott, paragraph 16).
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46 For the rest, the Commission's action must be dismissed.
| 0 |
862,244 |
60. As for the fact that, once it had made that finding of incompatibility with the Basic Law, the Bundesverfassungsgericht decided, in the conditions set out in paragraphs 13 and 14 of this judgment, to maintain on a temporary basis the effects of the internal legislation concerning that monopoly, it follows from the case-law referred to in paragraphs 53 to 58 of this judgment that such a circumstance cannot prevent a national court, which finds that that same legislation infringes directly effective provisions of Union law such as Articles 43 EC and 49 EC, from deciding, in accordance with principle of the primacy of Union law, not to apply that legislation in the context of the dispute before it (see, by analogy, Case C‑314/08 Filipiak [2009] ECR I-0000, paragraph 84).
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34. Moreover, the existence of a likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see SABEL, paragraph 22; Lloyd Schuchfabrik Meyer , paragraph 18; Case C-425/98 Marca Mode [2000] ECR I-4861, paragraph 40; order in Matratzen v OHIM, paragraph 28; Medion , paragraph 27; and Case C-206/04 P Mülhens v OHIM [2006] ECR I-2717, paragraph 18).
| 0 |
862,245 |
106. The Court has consistently interpreted the second paragraph of Article 288 EC as meaning that the non-contractual liability of the Community and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see, inter alia, Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case C-146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 19).
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36. In accordance with that case-law, the aim of the directives in relation to awarding public contracts is to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones ( University of Cambridge , paragraph 17, and case-law there cited).
| 0 |
862,246 |
42. In that regard, the Court has already held that a Member State which established criteria or thresholds at a level such that, in practice, an entire class of projects would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion under Articles 2(1) and 4(2) of that amended directive unless all projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment (see Kraaijeveld and Others , paragraph 53, and Case C‑435/97 WWF and Others [1999] ECR I‑5613, paragraph 38).
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53 Thus a Member State which established criteria or thresholds at a level such that, in practice, all projects relating to dykes would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion under Articles 2(1) and 4(2) of the directive unless all projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment.
| 1 |
862,247 |
24. In this regard, it should be noted at the outset that, according to settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is bound, in principle, to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑18/01 Korhonen and Others [2003] ECR I‑5321, paragraph 19; and Case C‑295/05 Asemfo [2007] ECR I‑2999, paragraph 30).
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47 According to the Council and the Commission, Olivetti and Océ imported plain paper photocopiers from Japan so as to be able to offer their customers a full range of models . Those photocopiers, falling within segments 1 and 2, were sold at higher prices than those charged by their suppliers and accounted for between 35 and 40% of sales and rentals of new machines placed on the market over the period from 1981 to July 1985 . The attempts of both producers to develop and market a full range of models failed, however, because of the depressed market prices imposed by Japanese imports .
| 0 |
862,248 |
55. It should be added that any disadvantages encountered in determining the value of assets situated in the territory of another Member State under a special national procedure cannot, in any event, be sufficient to justify restrictions on the free movement of capital such as those arising under the legislation at issue in the main proceedings, which, apart from that assessment procedure, also reserves application of two other tax advantages to assets situated within German territory (see, to that effect, Case C-334/02 Commission v France [2004] ECR I-2229, paragraph 29).
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28. Tandis que l’appréciation de la compatibilité de mesures d’aide avec le marché intérieur relève de la compétence exclusive de la Commission, agissant sous le contrôle des juridictions de l’Union, les juridictions nationales veillent à la sauvegarde, jusqu’à la décision finale de la Commission, des droits des justiciables face à une méconnaissance éventuelle, par les autorités étatiques, de l’interdiction visée à l’article 108, paragraphe 3, TFUE (voir, en ce sens, arrêts précités van Calster e.a., point 75, ainsi que Transalpine Ölleitung in Österreich, point 38).
| 0 |
862,249 |
62 Article 17(7) of the Sixth Directive thus lays down a procedural obligation which the Member States must observe in order to be able to make use of the derogation it sets out (see, by analogy, with respect to Article 27(5) of the Sixth Directive, which also provides for derogations from the scheme of the directive, Case 324/82 Commission v Belgium [1984] ECR 1861, paragraph 28).
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65. It follows from paragraph 85 of Texdata Software , EU:C:2013:588 that the latter characteristic may be of some importance when considering possible justifications for restricting the right to be heard before the adoption of an adverse decision.
| 0 |
862,250 |
130. That general, abstract and vague argument cannot ultimately be capable of establishing in the present case the reality of a breach of the rights of the defence, which must be examined by reference to the specific circumstances of each case (see, by analogy, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission , paragraphs 52 to 61).
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40. None the less, the Court has held that Article 17(6) of the Sixth Directive presupposes that the exclusions which Member States may retain pursuant to that provision were lawful under the Second Directive, which pre-dated the Sixth Directive (see Case C‑305/97 Royscot and Others [1999] ECR I‑6671, paragraph 21).
| 0 |
862,251 |
146. It is appropriate, moreover, to observe in relation to the last point that, as is clear from settled case-law, Article 308 EC may be used as the legal basis for a measure only where no other provision of the EC Treaty confers on the Community institutions the necessary power to adopt it (see, in particular, Case 165/87 Commission v Council [1988] ECR 5545, paragraph 17, and Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 48). As is apparent from this judgment, the Community legislature was empowered to adopt Regulation No 1073/1999 on the basis of Article 280 EC.
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Par ailleurs, la Cour a déjà confirmé la possibilité de prendre en considération l’interprétation de dispositions imposant
des mesures restrictives en tenant compte de la rédaction divergente de ces dispositions dans les différentes versions linguistiques,
de leur contexte et de leur finalité (voir, en ce sens, arrêt du 5 mars 2015, Ezz e.a./Conseil, C‑220/14 P, EU:C:2015:147,
points 69 à 72).
| 0 |
862,252 |
21 The letting of immovable property for the purposes of Article 13B(b) of the Sixth Directive essentially involves the landlord of property assigning to the tenant, in return for rent and for an agreed period, the right to occupy his property and to exclude other persons from it (see, to that effect, Case C-358/97 Commission v Ireland [2000] ECR I-6301, paragraphs 52 to 57, Case C-359/97 Commission v United Kingdom [2000] ECR I-6355, paragraphs 64 to 69; and Case C-326/99 Goed Wonen [2001] ECR I-0000, paragraph 55).
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35 The Court concluded (see Giletti and Others, cited above, paragraph 11) that, in so far as such legislation confers a right to supplementary benefits designed to increase the amount of pensions paid by way of social security, without any assessment of individual needs or circumstances, which is a characteristic of assistance, it comes within the social security system within the meaning of Regulation No 1408/71. The Court added that the fact that a single law may also provide for advantages which can be classified as assistance cannot alter, for the purposes of Community law, the intrinsic social security character of a benefit linked to an invalidity, old-age or survivor' s pension to which it is an automatic supplement.
| 0 |
862,253 |
37
Nevertheless, the wording of Article 148(c) of the Customs Code is not unambiguous. It does not specify either the markets concerned by the activities of those ‘processors’ or the specific factors to be taken into account in assessing whether their essential interests may be adversely affected. Consequently, it is necessary to interpret that provision in the light of the general scheme and purpose of the outward processing procedure (see, to that effect, judgments of 19 June 1980 in Roudolff, 803/79, EU:C:1980:166, paragraph 7, and of 11 May 2006 in Friesland Coberco Dairy Foods, C‑11/05, EU:C:2006:312, paragraph 47).
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56. An appellant’s interest in bringing proceedings must be vested and current (see, to that effect, judgments in Commission v Koninklijke FrieslandCampina , C‑519/07 P, EU:C:2009:556, paragraph 65, and Planet v Commission , C‑564/13 P, EU:C:2015:124, paragraph 34). It may not concern a future and hypothetical situation (see, to that effect, judgments in Stroghili v Court of Auditors , 204/85, EU:C:1987:21, paragraph 11, and Cañas v Commission , C‑269/12 P, EU:C:2013:415, paragraphs 16 and 17).
| 0 |
862,254 |
38. Secondly, as regards Article 11 of Regulation No 3665/87, it follows from the first and second recitals to Regulation No 2945/94 that, in the light of experience, measures to combat irregularities and notably fraud prejudicial to the Union budget should be intensified and provision should, therefore, be made for the recovery of amounts unduly paid and the sanctions, the subjective aspect of the fault committed having no impact in that regard (see, to that effect, Käserei Champignon Hofmeister , paragraphs 40 and 60). Thus, Article 11 of that regulation makes the exporter responsible, subject to sanctions, for the accuracy of the declaration, taking precise account of the exporter’s role as the last participant in the chain of production, processing and export of agricultural products (see, to that effect, Käserei Champignon Hofmeister , paragraph 62 and 81).
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À moins qu’elle ne soit renversée, une telle présomption implique, dès lors, que l’exercice effectif d’une influence déterminante par la société mère sur sa filiale soit considéré comme établi et fonde la Commission à tenir la première responsable du comportement de la seconde, sans avoir à produire une quelconque preuve additionnelle (voir, en ce sens, arrêt 27 avril 2017, Akzo Nobel et Akzo Nobel Chemicals/Commission, C‑516/15 P, EU:C:2017:314, point 55).
| 0 |
862,255 |
26
Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (see, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26).
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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 |
862,256 |
104
It should, however, be recalled, first of all, that, according to settled case-law of the Court, the need to prevent the reduction of tax revenue is not an overriding reason in the public interest capable of justifying a restriction on the freedom to provide services (see, to that effect, judgment of 22 December 2010, Tankreederei I, C‑287/10, EU:C:2010:827, paragraph 27 and the case-law cited). Also, administrative disadvantages are not of themselves sufficient to justify a barrier to the freedom to provide services (see, to that effect, judgments of 4 March 2004, Commission v France, C‑334/02, EU:C:2004:129, paragraph 29; of 14 September 2006, Centro di Musicologia Walter Stauffer, C‑386/04, EU:C:2006:568, paragraph 48; of 27 November 2008, Papillon, C‑418/07, EU:C:2008:659, paragraph 54; and of 9 October 2014, van Caster, C‑326/12, EU:C:2014:2269, paragraph 56).
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32. It must be pointed out that the fact of having been successful in a procedure to select a predefined number of persons on the basis of a comparative assessment of the candidates rather than by application of absolute criteria, which confers a qualification the validity of which is strictly limited in time, cannot be regarded as a professional qualification within the meaning of Article 3(1)(b) of Directive 2005/36.
| 0 |
862,257 |
41. As rightly observed by the French Government in its written observations, since Article 4(5) of the Convention requires the national court to apply the law of the country with which the contract is most closely connected and refrain from applying the law applicable determined on the basis of the criteria set out in Article 4(2) to (4), a fortiori that court must apply the law of the country with which the contract is most closely connected, as provided for in Article 4(1), where Article 4(4) does not enable the law applicable to a contract for the carriage of goods to be identified (see, to that effect, ICF , EU:C:2009:617, paragraphs 63 and 64).
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26. Il est, par ailleurs, de jurisprudence constante que doivent être considérées comme des restrictions à la liberté d’établissement toutes les mesures qui interdisent, gênent ou rendent moins attrayant l’exercice de cette liberté (arrêts précités National Grid Indus, point 36, et du 6 septembre 2012, Commission/Portugal, point 26).
| 0 |
862,258 |
33. The Community legislature has nevertheless made reliance by the Member States on such grounds subject to strict limits. Article 3(1) of Directive 64/221 states that measures taken on grounds of public policy or public security are to be based exclusively on the personal conduct of the individual concerned and Article 3(2) states that previous criminal convictions do not in themselves constitute grounds for the taking of such measures. The existence of a previous criminal conviction can therefore only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy (Case 30/77 Bouchereau [1977] ECR 1999, paragraph 28; Case C-348/96 Calfa [1999] ECR I-11, paragraph 24; and Case C-503/03 Commission v Spain , paragraph 44).
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124. Il ressort de ces éléments, premièrement, que le Tribunal n’a pas commis d’erreur de droit en interprétant le point 23 des lignes directrices pour le calcul des amendes comme signifiant que la Commission a annoncé dans celles-ci que, pour les restrictions de concurrence les plus graves, telles que les accords horizontaux de fixation de prix et de répartition du marché, elle retiendra généralement une proportion allant de 15 % à 30 % de la valeur des ventes. Le Tribunal ayant à bon droit considéré que l’infraction commise par Gosselin relevait de cette catégorie d’infractions les plus graves, Gosselin ne saurait utilement prétendre que son comportement individuel n’aurait pas été pris en compte.
| 0 |
862,259 |
23 In paragraph 34 of Schumacker, cited above, the Court held that the fact that a Member State does not grant to a non-resident certain tax benefits which it grants to a resident is not, as a rule, discriminatory having regard to the objective differences between the situations of residents and of non-residents, both from the point of view of the source of their income and their personal ability to pay tax or their personal and family circumstances.
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2 The question was raised in three disputes between, first, Mr Naranjo Arjona and the Instituto Nacional de la Seguridad Social (National Social Security Institute; `the INSS'), secondly, Mr Vicente Mateos and the INSS and the Tesorería General de la Seguridad Social (General Social Security Revenue Authority; `the TGSS'), and, finally, the INSS and Mrs García Lázaro, concerning the calculation of old-age and invalidity pensions.
| 0 |
862,260 |
85. It is also settled case-law that the first paragraph of Article 45 EC is an exception to the fundamental rule of freedom of establishment. As such, the exception must be interpreted in a manner which limits its scope to what is strictly necessary to safeguard the interests it allows the Member States to protect ( Commission v Greece , paragraph 7; Commission v Spain , paragraph 34; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 45; Case C‑393/05 Commission v Austria [2007] ECR I‑10195, paragraph 35; Case C‑404/05 Commission v Germany [2007] ECR I‑10239, paragraphs 37 and 46; and Commission v Portugal , paragraph 34).
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58. It follows that transactions of the kind at issue in the main proceedings are supplies of goods or services and an economic activity within the meaning of Article 2(1), Article 4(1) and (2), Article 5(1) and Article 6(1) of the Sixth Directive, provided that they satisfy the objective criteria on which those concepts are based.
| 0 |
862,261 |
86. Article 87(1) EC defines State aid as aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, in so far as it affects trade between Member States. The concept of State aid within the meaning of that provision is wider than that of a subsidy because it embraces not only positive benefits, such as the subsidies themselves, but also measures which, in various forms, mitigate the normal burdens on the budget of an undertaking, and which therefore, without being subsidies in the strict sense of the word, are of the same character and have the same effect. The supply of goods or services on preferential terms is one of the indirect advantages which have the same effects as (see Case C-276/02 Spain v Commission [2004] ECR I‑8091, paragraph 24, and Joined Cases C‑341/06 P and C‑342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I‑4777, paragraph 123).
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83. In order for such legislation to remain compatible with the principle of proportionality, it is necessary, in the second place, that, where the consideration of those elements leads to the conclusion that the transaction in question represents a purely artificial arrangement without any underlying commercial justification, the re-characterisation of interest paid as a distribution is limited to the proportion of that interest which exceeds what would have been agreed had the relationship between the parties or between those parties and a third party been one at arm’s length.
| 0 |
862,262 |
72. Admittedly, should the national courts which made the references conclude, on the basis of the replies to be given by the Court, that the new Articles 2621 and 2622 of the Italian Civil Code do not, by reason of certain of their provisions, satisfy the Community law requirement that penalties be appropriate, it would follow, according to the Court’s well-established case-law, that the national courts which made the references would be required to set aside, under their own authority, those new articles without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure (see, inter alia, Case 106/77 Simmenthal [1978] ECR 629, paragraphs 21 and 24; Joined Cases C‑13/91 and C‑113/91 Debus [1992] ECR I‑3617, paragraph 32; and Joined Cases C‑10/97 to C‑22/97 IN. CO .GE’90 and Others [1998] ECR I‑6307, paragraph 20).
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28 Economic activities are defined in Article 4(2) as comprising all activities of producers, traders and persons supplying services. In particular, the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis is also to be considered an economic activity.
| 0 |
862,263 |
36 In this regard, it is appropriate to point out, firstly, that it is not disputed that it follows from point IX of the nomenclature of capital movements appearing in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (OJ 1988 L 178, p. 5), that guarantees granted by non-residents to residents or by residents to non-residents constitute movements of capital within the meaning of Article 1 of that directive and are therefore covered by Article 56(1) EC (see, to that effect, Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraphs 21 to 24).
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87. It follows that Community law does not therefore, in principle, preclude a Member State from prohibiting, unless there is prior authorisation, the marketing of foodstuffs to which nutrients, such as vitamins or minerals other than those whose use is lawful under Community legislation, have been added ( Commission v Denmark , paragraph 44; Commission v France , paragraph 51; and Commission v Austria , paragraph 87).
| 0 |
862,264 |
29 The French Government raised the same objection in the action for failure to fulfil obligations relating to the fishing years 1988 and 1990 brought against it by the Commission. That objection was dismissed by the Court of Justice in its judgment in Case C-333/99 Commission v France [2001] ECR I-1025, paragraphs 23 to 25). In particular, when exercising its powers under Articles 211 EC and 226 EC, the Commission does not have to show that there is a specific interest in bringing the action since its function is, in the general interest of the Community, to ensure that Member States give effect to the EC Treaty and to obtain a declaration of any failure to fulfil the obligations deriving therefrom, with a view to bringing it to an end (Case 167/73 Commission v France [1974] ECR 359, paragraph 15; Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 21; Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 59; and Case C-333/99 Commission v France, cited above, paragraph 23).
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25 FAR FROM INVOLVING A DEPARTURE FROM THESE FUNDAMENTAL RULES, THEREFORE, THE OBJECT OF THE RULES RELATING TO THE COMMON TRANSPORT POLICY IS TO IMPLEMENT AND COMPLIMENT THEM BY MEANS OF COMMON ACTION .
| 1 |
862,265 |
37. Where the need to evaluate a complex economic situation is involved, the Community institutions enjoy a wide measure of discretion. In reviewing the legality of the exercise of such discretion, the Court cannot substitute its own assessment of the matter for that of the competent authority but must confine itself to examining whether that assessment is vitiated by a manifest error or misuse of power or whether the institution in question has not manifestly exceeded the limits of its discretion (see Case C-369/95 Somalfruit and Camar [1997] ECR I-6619, paragraph 50, and Case C-99/99 Italy v Commission [2000] ECR I-11535, paragraph 26).
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15. BLM, of which Mr Bertrand Losfeld is the managing director, does not require Mr Losfeld to pay rent for the private use of part of the building at issue. However, he is liable for personal income tax on the benefit in kind, calculated on a flat-rate basis of 75% private occupation of the building.
| 0 |
862,266 |
38
As stated in paragraph 30 above, since they are based on the employment relationship, the benefits which the employer pays, whether under legislative provisions or an employment contract, to a worker on maternity leave constitute pay within the meaning of Article 119 of the EC Treaty (subsequently Article 141 EC) and Article 1 of Directive 75/117 (judgments of 13 February 1996 in Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 14, and 27 October 1998 in Boyle and Others, C‑411/96, EU:C:1998:506, paragraph 38).
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28 As regards the second condition, where, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach.
| 0 |
862,267 |
44. Under the system thus established by Articles 27, 28 and 28a, the institution which has to bear the cost of the benefits in kind in respect of sickness and maternity will always be an institution of a Member State competent in respect of pensions, since the pensioner would have a right to those benefits under the legislation of that Member State if he resided in its territory (see, to that effect, Rundgren , paragraph 46).
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37. Consequently, according to the case-law of the Court, Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of a provision of Community law, regardless of its nature, on the part of the decision at issue (see, inter alia, Case C‑126/97 Eco Swiss [1999] ECR I‑3055, paragraphs 47 and 48; Kapferer , paragraph 21; and Fallimento Olimpiclub , paragraph 23).
| 0 |
862,268 |
55. Consequently, in contrast to the contentions of the Federal Republic of Germany and the Portuguese Republic, even a restriction on freedom of movement for persons which is of limited scope or minor importance is prohibited by Articles 39 EC and 43 EC (see, concerning the freedom of establishment, Case 270/83 Commission v France [1986] ECR 273, paragraph 21; Case C-34/98 Commission v France [2000] ECR I-995, paragraph 49; and de Lasteyrie du Saillant , paragraph 43).
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30. That finding is corroborated by recital 17 of that directive, from which it is apparent that the conditions for the initial arrest of third-country nationals suspected of staying in a Member State illegally remain governed by national law. Moreover, as the French Government has observed, the objective of Directive 2008/115, namely, the effective return of illegally-staying third-country nationals, would be compromised if it were impossible for Member States to prevent, by deprivation of liberty such as police custody, a person suspected of staying illegally from fleeing before his situation could even be clarified.
| 0 |
862,269 |
59. In that regard, it should be noted that the concept of ‘unchanged situation’ is not defined by Regulation No 883/2004. However, as the regulation is not a measure harmonising national social security systems but an enactment intended to coordinate those systems, each Member State retains the power to determine in its legislation, in compliance with European Union law, the conditions pursuant to which benefits may be granted under a social security scheme (see, to that effect, Joined Cases C‑611/10 and C‑612/10 Hudzinski and Wawrrzyniak [2012] ECR I‑0000, paragraph 42). The concept of ‘unchanged situation’ within the meaning of Article 87(8) of that regulation must, consequently, be interpreted by reference to the definition given by national social security legislation (see, by analogy, with regard to the term ‘employment’ within the meaning of Article 71(1) of Regulation No 1408/71, Case C‑372/02 Adanez-Vega [2004] ECR I‑10761, paragraph 33).
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25 That interpretation cannot be accepted. It is common ground that, because of their composition, the products in question correspond exactly to the definition of hind quarters with one difference, namely that, because of the way in which they are cut, the two quarters are not wholly separated but still attached to one another by the skin of the back. Because the content is the same even if the presentation is not, it is necessary to consult the general rules on the interpretation of the combined nomenclature in order to decide whether the products under consideration can fit into the specific category or must be classified under the residual heading.
| 0 |
862,270 |
34. It was in the light of such considerations that the Court held that a Member State may exercise the right under Article 8(2) of Directive 91/439 only by reason of some conduct of the person concerned after he has obtained a driving licence issued by another Member State. That provision does not permit the Member State of normal residence to refuse to recognise a driving licence issued by another Member State just because the holder has earlier had a previous licence withdrawn in the first Member State ( Wiedemann and Funk , paragraph 66, and Zerche and Others , paragraph 63).
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45. Moreover, that restriction is entirely proportionate to the objective pursued, since the reintegrated losses are reintegrated only up to the amount of the profits made.
| 0 |
862,271 |
46 The Court has found in that respect that it is necessary to take account of the circumstances prevailing at the time of marketing in the importing Member State which make repackaging objectively necessary in order that the pharmaceutical product can be placed on the market in that State by the parallel importer. The trade mark proprietor's opposition to the repackaging is not justified if it hinders effective access of the imported product to the market of that State (see, to that effect, Upjohn, paragraph 43).
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28. However, where an undertaking has not submitted a tender because there were allegedly discriminatory specifications in the documents relating to the invitation to tender, or in the contract documents, which have specifically prevented it from being in a position to provide all the services requested, it would be entitled to seek review of those specifications directly, even before the procedure for awarding the contract concerned is terminated.
| 0 |
862,272 |
45. By question 1(a), the referring court seeks to determine whether the case-law following the judgment in Kits van Heijningen (C‑2/89, EU:C:1990:183) is applicable to a situation such as that of Mr Giesen’s wife who worked only two or three days per month in Germany. As for the cases of Ms Franzen and Mr van den Berg, the referring court considers it as established that they were employed in Germany and that the Federal Republic of Germany was the competent Member State during the periods at issue in relation to those two persons.
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106. Compte tenu des éléments qui précèdent, il convient de constater que la procédure suivie devant le Tribunal a violé l’article 47, deuxième alinéa, de la Charte en ce qu’elle a méconnu les exigences liées au respect du délai de jugement raisonnable, ce qui constitue une violation suffisamment caractérisée d’une règle de droit ayant pour objet de conférer des droits aux particuliers (arrêt du 4 juillet 2000, Bergaderm et Goupil/Commission, C‑352/98 P, Rec. p. I‑5291, point 42).
| 0 |
862,273 |
28. The supply of goods or services can be regarded as ‘closely related’ to education, and thus subject to the same tax treatment under Article 13A(1)(i) of the Sixth Directive, only where they are actually supplied as services ancillary to the education which constitutes the principal service (see, by analogy, Case C‑76/99 Commission v France [2001] ECR I‑249, paragraphs 27 to 30; Dornier , paragraphs 34 and 35; and also Ygeia , paragraphs 17 and 18).
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47 Furthermore, it must be regarded as undisputed that, as the Advocate General rightly pointed out in paragraphs 136 to 138 of his Opinion with respect to the clause on the ownership and control of airlines, the amendments made to the agreement in its entirety in 1995 affect the scope of the provisions, such as that clause, which were not formally modified by the amendments or were modified only to a limited extent.
| 0 |
862,274 |
24. In this regard it is to be borne in mind that, in accordance with settled case‑law, in proceedings under Article 267 TFEU, based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see Joined Cases C‑165/09 to C‑167/09 Stichting Natuur en Milieu and Others [2011] ECR I‑0000, paragraph 47 and case-law cited).
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44. In that regard, it must first be observed that the Regulation contains no definition of the concept of ‘habitual residence’. It merely follows from the use of the adjective ‘habitual’ that the residence must have a certain permanence or regularity.
| 0 |
862,275 |
24 It should, moreover, be borne in mind that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-200/97 Ecotrade v Altiforni e Ferriere di Servola [1998] ECR I-7907, paragraph 25).
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46. That body of rights and benefits would be compromised if, where the statutory period of notice was not observed in the event of dismissal during part-time parental leave, a worker employed on a full-time basis lost the right to have the compensation for dismissal due to him determined on the basis of the salary relating to his employment contract.
| 0 |
862,276 |
70. As the Court has held, the fact that a national measure may be consistent with a provision of secondary legislation – in the present case, Article 22 of Regulation No 1408/71 – does not have the effect of removing that measure from the scope of the provisions of the Treaty. Moreover, Article 22(1) of Regulation No 1408/71 is intended to enable an insured person, authorised by the competent institution, to go to another Member State to receive treatment there which is appropriate to his condition, to receive sickness benefits in kind, on account of the competent institution but in accordance with the legislation of the State in which the services are provided, in particular where the need for the transfer arises because of the state of health of the person concerned, without that person incurring additional expenditure. On the other hand, Article 22 of Regulation No 1408/71, interpreted in the light of its purpose, is not intended to regulate and accordingly does not in any way prevent reimbursement by the Member State of affiliation, at the tariffs in force in the competent State, of costs incurred in connection with treatment provided in another Member State, even without prior authorisation ( Kohll , paragraphs 25 to 27).
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16 The term "supply of goods for the fuelling and provisioning of vessels" is capable of bearing several literal meanings . It could refer to the supply of goods which the recipient will use for the fuelling and provisioning of his vessels or the supply, at whatever stage it takes place, of goods which will subsequently be used for that purpose .
| 0 |
862,277 |
38 As regards the definition of the market in question, it appears from the order for reference that it consists in the performance on behalf of third persons of mooring services relating to container freight in the ports of Genoa and La Spezia. Having regard inter alia to the volume of traffic in those ports and their importance in intra-Community trade, those markets may be regarded as constituting a substantial part of the common market (Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 15, and Case C-163/96 Raso and Others [1998] ECR I-0000, paragraph 26).
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22. The concept of pay, referred to in Article 141 EC, comprises, according to settled case-law, any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer (see, inter alia, Case C‑262/88 Barber [1990] ECR I‑1889, paragraph 12, and Case C‑167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 23).
| 0 |
862,278 |
25. Such a restriction is permissible only if it pursues a legitimate objective which is compatible with the Treaty and is justified by overriding reasons of public interest. It is further necessary, in such a case, that its application be appropriate to ensuring the attainment of the objective thus pursued and not go beyond what is necessary to attain it (see, inter alia, Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 35, and Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 47).
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24 IT FOLLOWS FROM THE FOREGOING THAT BL ' S CONDUCT CAN ONLY BE CONSTRUED AS THE MANIFESTATION OF A DELIBERATE INTENTION ON ITS PART TO CREATE BARRIERS TO RE-IMPORTATIONS WHICH COME INTO COMPETITION WITH ITS APPROVED DISTRIBUTORS . THAT CONDUCT MUST THEREFORE BE REGARDED AS AN ABUSE OF A DOMINANT POSITION .
( C ) THE EXCESSIVE NATURE OF THE FEES
| 0 |
862,279 |
43. It should be recalled at the outset that the deduction system established by the VAT Directive is meant to relieve the operator entirely of the burden of the VAT paid or payable in the course of all his economic activities. The common system of VAT seeks to ensure complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject, in principle, to VAT (see, inter alia, Case 268/83 Rompelman [1985] ECR 655, paragraph 19, and Case C-153/11 Klub [2012] ECR, paragraph 35).
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41. As the Court has repeatedly held, in proceedings for failure to fulfil obligations, it is for the Commission to prove the alleged failure by placing before the Court all the information needed to enable the Court to establish that the obligation has not been fulfilled (see, in particular, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6, and Case C-512/08 Commission v France [2010] ECR I-8833, paragraph 56).
| 0 |
862,280 |
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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29 Next, the time-limit at issue is applicable not solely to a particular kind of charge which has previously been declared incompatible with Community law but to a whole range of internal charges and taxes for which the legislation has standardised the rules on time-limits and limitation periods.
| 0 |
862,281 |
36
As regards the claims alleging infringement of essential procedural requirements and of Regulation No 1 and Article 3 TEU and Article 41(4) of the Charter, it is clear from the case-law of the Court of Justice, referred to by the General Court in paragraph 115 of the judgment under appeal, that the use of the language laid down in Article 3 of Regulation No 1 does not constitute an essential procedural requirement, within the meaning of Article 263 TFEU, the infringement of which necessarily affects the validity of any document addressed to a person in another language (see, to that effect, judgment of 15 July 1970 in ACF Chemiefarma v Commission, 41/69, EU:C:1970:71, paragraphs 47 to 52). According to that case-law, where an institution sends a person within the jurisdiction of a Member State a document which is not drawn up in the language of that State, such a process vitiates the procedure only if it gives rise to harmful consequences for that person in the course of the administrative procedure.
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66 According to that case-law, those provisions, which provide for the prohibition of all discrimination based on nationality in the field of social security against Algerian and Moroccan nationals as compared with the nationals of the host Member State, are directly effective notwithstanding the fact that the Cooperation Council has not adopted measures implementing Article 40(1) of the EEC-Algeria Agreement or Article 42(1) of the EEC-Morocco Agreement relating to the implementation of the principles stated in Articles 39 and 41 respectively.
| 0 |
862,282 |
28 On the one hand, it follows from the case-law of the Court that a person's status as a worker is not affected by the fact that that person, whilst being linked to an undertaking by a relationship of employment, is linked to the other workers of that undertaking by a relationship of association (see, to this effect, the Merci judgment, paragraph 13).
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32 It need merely be pointed out, as the Commission has done without being contradicted, that the appellant was entitled to put forward at the hearing any observations on those documents which it considered necessary or to request an adjournment of the hearing to enable it to analyse the Commission's reply, but did not do so. In those circumstances, the appellant cannot, in an appeal, rely on a procedural safeguard which it had already waived.
| 0 |
862,283 |
28
Those requirements of equivalence and effectiveness embody the general obligation on the Member States to ensure judicial protection of an individual’s rights under EU law. They apply both as regards the designation of the courts and tribunals having jurisdiction to hear and determine actions based on EU law and as regards the definition of detailed procedural rules (judgment of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 49).
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22. In the light of the foregoing considerations, the answer to the question referred is that Articles 10(1) and 12(1) of the directive must be interpreted as meaning that, where the proprietor of a mark affixes that mark to items that it gives, free of charge, to purchasers of its goods, it does not make genuine use of that mark in respect of the class covering those items.
Costs
| 0 |
862,284 |
112 Finally, as regards Drijvende Bokken's argument that an adequate level of pension for workers could be assured by laying down minimal requirements to be met by pensions offered by insurance companies, it must be emphasised that, in view of the social function of supplementary pension schemes and the margin of appreciation enjoyed, according to settled case-law, by the Member States in organising their social security systems (Case 238/82 Duphar and Others [1984] ECR 523, paragraph 16; Poucet and Pistre, cited above, paragraph 6; and Case C-70/95 Sodemare and Others [1997] ECR I-3395, paragraph 27), it is incumbent on each Member State to consider whether, in view of the particular features of its national pension system, the laying down of minimum requirements would still enable it to ensure the level of pension which it seeks to guarantee in a sector by compulsory affiliation to a pension fund.
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7. À cet égard, il ressort d’une jurisprudence constante de la Cour que l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient ainsi être pris en compte par la Cour (voir, notamment, arrêts du 14 juillet 2005, Commission/Allemagne, C‑433/03, Rec. p. I‑6985, point 32, et du 26 novembre 2009, Commission/Italie, C‑13/09, point 9).
| 0 |
862,285 |
36. As regards the assessment of the distinctive character of such marks, the Court has already held that it is inappropriate to apply to slogans criteria which are stricter than those applicable to other types of sign ( OHIM v Erpo Möbelwerk , paragraphs 32 and 44).
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92. Par la suite, la Cour, dans le cadre d’une affaire concernant une décision de la Commission constatant l’existence d’un abus de position dominante, mais n’infligeant pas d’amende, a jugé que le non-respect, par le Tribunal, d’un délai de jugement raisonnable peut donner lieu à une demande en indemnité (arrêt Der Grüne Punkt – Duales System Deutschland/Commission, précité, point 195).
| 0 |
862,286 |
67
However, it is only in circumstances where the action for annulment would unquestionably have been admissible that the Court has held that a person may not plead the invalidity of an act of the European Union before a national court (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 17 to 25; of 30 January 1997, Wiljo, C‑178/95, EU:C:1997:46, paragraphs 15 to 25; of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 29 to 40; and of 22 October 2002, National Farmers’ Union, C‑241/01, EU:C:2002:604, paragraphs 34 to 39). In numerous other cases, the Court has held that it was not established that the action would unquestionably have been admissible (see, inter alia, to that effect, judgments of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraphs 30 to 34; of 8 March 2007, Roquette Frères, C‑441/05, EU:C:2007:150, paragraphs 35 to 48; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 37 to 52; of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 24 to 38; and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraphs 27 to 32).
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41 The reason for this mitigation of the burden of proof on the Commission is that it is the Member State which is best placed to collect and verify the data required for the clearance of EAGGF accounts; consequently, it is for the State to adduce the most detailed and comprehensive evidence that it has made checks or that its figures are accurate and, if appropriate, that the Commission's assertions are incorrect (Cases C-54/95 Germany v Commission, cited above, paragraph 35, and C-28/94 Netherlands v Commission, cited above, paragraph 41).
| 0 |
862,287 |
25. It must be borne in mind, next, that that reduction mechanism consists in imposing the payment of a penalty, the amount of which is determined in proportion to the amount which would have been unduly received by the exporter had the requested refund been granted. It concerns a penalty which forms an integral part of the export refund scheme and is not criminal in nature (see, to that effect, Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, paragraph 43; AOB Reuter , paragraph 18; and Case C-489/10 Bonda [2012] ECR, paragraph 30).
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18. In paragraph 41 of Case C-210/00 Käserei Champignon Hofmeister , the Court held that the sanction constitutes a specific administrative instrument forming an integral part of the scheme of aid which is intended to ensure the sound financial management of Community public funds and, in paragraph 44 of that judgment, that it cannot be said to be of a criminal nature.
| 1 |
862,288 |
51
Thus, the Cypriot legislation may deter the abovementioned group of civil servants from leaving Cyprus to work within an EU institution since, by accepting employment within such an institution, they lose the right to benefit under the national sickness insurance scheme from old-age benefits to which they would have been entitled had they not accepted that employment (see, to that effect, judgments in My, C‑293/03, EU:C:2004:821, paragraph 47; Rockler, C‑137/04, EU:C:2006:106, paragraph 19; and Öberg, C‑185/04, EU:C:2006:107, paragraph 16).
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36 Furthermore, according to settled case-law, discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (Boyle, cited above, paragraph 39).
| 0 |
862,289 |
32 In order to determine whether a State measure introduced without taking account of the preliminary examination procedure laid down in Article 93(3) of the Treaty should have been subject to that procedure, a national court may have cause to interpret the concept of aid contained in Article 92 of the Treaty. If, as the order for reference shows to be the case here, that court has doubts as to whether the measure in question should be classified as a State aid, it may ask the Commission for clarifications on that point or, in accordance with the second and third paragraphs of Article 177 of the Treaty, it may or must put a question to the Court for a preliminary ruling on the interpretation of Article 92 of the Treaty (SFEI, paragraphs 49 to 51).
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54. In order to interpret those provisions, it must be taken into account that, generally, provisions which are in the nature of exceptions to a principle must, according to settled case-law, be interpreted strictly (see in particular, to that effect, Erotic Center , C‑3/09, EU:C:2010:149, paragraph 15, and Commission v Poland , C‑185/10, EU:C:2012:181, paragraph 31 and the case-law cited).
| 0 |
862,290 |
31. Thus, the Court has held that, although certain actions between a public authority and a person governed by private law may come within the scope of the Brussels Convention, it is otherwise where the public authority is acting in the exercise of its public powers (see LTU , paragraph 4; Rüffer , paragraph 8; Henkel , paragraph 26; Baten , paragraph 30; Préservatrice foncière TIARD , paragraph 22; and Case C-172/91 Sonntag [1993] ECR I‑1963, paragraph 20).
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21 HOWEVER, A LIMITATION ON THE OVERLAPPING OF BENEFITS WHICH WOULD LEAD TO A DIMINUTION OF THE RIGHTS WHICH THE PERSONS CONCERNED ALREADY ENJOY IN A MEMBER STATE BY VIRTUE OF THE APPLICATION OF THE NATIONAL LEGISLATION ALONE IS INCOMPATIBLE WITH ARTICLE 51 .
| 0 |
862,291 |
106. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, does not satisfy the requirements to state reasons under those provisions (see, in particular, the order in Case C‑174/97 P FFSA and Others v Commission [1998] ECR I‑1303, paragraph 24, and the judgment in Interporc v Commission , cited above, paragraph 16). In reality, such an appeal amounts to no more than a request for a reexamination of the application submitted to the Court of First Instance, a matter which falls outside the jurisdiction of the Court of Justice (see the order in Case C‑26/94 P X v Commission [1994] ECR I‑4379, paragraph 13, and the judgment in Bergaderm and Goupil v Commission , cited above, paragraph 35).
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16. By letter of 29 May 1996, the Secretary-General of the Commission rejected the confirmatory application in the following terms:
"Following an examination of your request, I regret to have to inform you that I confirm the decision of DG VI and DG XXI for the following reasons.
The documents requested all concern a Commission decision of 26 January 1996 (doc. COM (C)96 180 final) which has since become the subject-matter of an application for annulment brought by your representative (Case T-50/96).
Consequently, and without prejudice to other exceptions which might justify refusing access to the documents requested, the exception for protection of the public interest (court proceedings) is applicable. The Code of Conduct cannot oblige the Commission, as a party to a pending action, to provide the other party with documents relating to the dispute.
"
...
18. By application lodged at the Registry of the Court of First Instance on 9 August 1996, the applicant brought an action for annulment of the Commission's decision of 29 May 1996 confirming its refusal to allow the applicant access to certain of its documents. By its judgment in Case T-124/96 Interporc I [1998] ECR II-231, the Court of First Instance held that the statement of reasons in the decision of 29 May 1996 was inadequate and annulled that decision.
19. Moreover, in the course of proceedings in Case T-50/96, in response to the request of the Court of First Instance of 15 December 1997, the Commission produced certain documents some of which were the same as those requested by the applicant in the course of proceedings in Interporc I . In the present case the applicant has confirmed that the confirmatory application has ceased to have any purpose in so far as it relates to the documents the Commission produced at the request of the Court of First Instance in Case T-50/96.
20. In implementation of the judgment in Interporc I , the Commission sent to the applicant's lawyer a further decision dated 23 April 1998 concerning the applicant's confirmatory application of 27 March 1996 and containing an identical conclusion to that in the annulled decision of 29 May 1996 but stating different reasons ... The contested decision reads as follows:
"...
As regards the documents emanating from the Member States and the Argentine authorities, I would advise you to request a copy directly from those Member States and from the authorities concerned. Whilst the Code of Conduct provides that "the public will have the widest possible access to documents held by the Commission and the Council" , the fifth paragraph provides that "where the document held by an institution was written by a natural or legal person, a Member State, another Community institution or body or any other national or international body, the application must be sent direct to the author" . The Commission can therefore in no circumstances be accused of an abuse of rights; it is merely applying its decision of 8 February 1994 governing the implementation of the Code of Conduct.
All the other documents concern pending legal proceedings (Case T-50/96) and fall within the exception based on the protection of the public interest, and, in particular, of the proper conduct of court proceedings, expressly provided for by the Code of Conduct. To disclose them on the basis of provisions relating to public access to Commission documents is likely to be damaging to the interests of the parties in those proceedings, and in particular to the rights of the defence, and would be contrary to the special provisions governing the disclosure of documents in court proceedings.
"
"
The judgment under appeal
4. In support of its action for annulment of the contested decision the applicant relied, before the Court of First Instance,
─ as regards the documents emanating from the Commission, on three pleas in law alleging that the Commission infringed, first, the Code of Conduct and Decision 94/90, second, Article 176 of the EC Treaty (now Article 233 EC) in conjunction with the judgment in Interporc I and, third, Article 190 of the EC Treaty (now Article 253 EC), and
─ as regards the documents emanating from the Member States or the Argentine authorities, on three pleas alleging, first, the unlawfulness of the contested decision in so far as it is based on the authorship rule, second, infringement of the Code of Conduct adopted by Decision 94/90 and, third, infringement of Article 190 of the Treaty.
5. The Court of First Instance upheld the plea alleging infringement of the Code of Conduct adopted by Decision 94/90 on the ground that the Commission had misapplied the exception based on the protection of the public interest (court proceedings) and it therefore annulled the contested decision in so far as it refused to authorise access to documents emanating from the Commission.
6. However, the Court of First Instance held that the contested decision should not be annulled in so far as it refused access, on the basis of the authorship rule, to the documents emanating from the Member States or the Argentine authorities.
7. The Court of First Instance gave the following reasons for its rejection of the plea alleging the unlawfulness of the contested decision in so far as it is based on the authorship rule:
"55. It follows from the judgment in Interporc I , first, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision in implementation of that judgment and, second, that the decision of 29 May 1996 is deemed to have never existed.
56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule.
"
8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held:
"66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ...
...
69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55).
...
73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities.
74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ...
"
9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds:
"77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... .
78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37).
"
The appeal
10. By its appeal, Interporc claims that the Court should:
─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs;
─ annul the contested decision in its entirety;
─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance.
11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment).
12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment.
Admissibility of the appeal
Arguments of the parties
13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance.
14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly.
Findings of the Court
15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68).
16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24).
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862,292 |
19. Moreover, it must be recalled that it is precisely use of the adverb ‘especially’ that led the Court to find, by contrast, that the examples given in Article 7(2) of the Directive provided guidance only (see Joined Cases C‑427/93, C-429/93 and C‑436/93 Bristol-Myers Squibb and Others [1996] ECR I-3457, paragraph 39, and Case C‑337/95 Parfums Christian Dior [1997] ECR I‑6013, paragraph 42).
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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).
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862,293 |
28. That argument cannot be accepted. The Court has stated on numerous occasions that the scope of Directive 85/337 and that of the amended directive is very wide (see, to that effect, Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 31; Case C-435/97 WWF and Others [1999] ECR I-5613, paragraph 40; and Case C-2/07 Abraham and Others [2008] ECR I-0000, paragraph 32). It would, therefore, be contrary to the very purpose of the amended directive to allow any urban road project to fall outside its scope solely on the ground that the directive does not expressly mention among the projects listed in Annexes I and II those concerning that kind of road.
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38. In that context, it must be noted that the legislation at issue in the main proceedings affects every lessor eligible for the investment premium which hires out assets for remuneration to undertakings carrying out cross-border activities, and does so even where nothing points towards the existence of such an artificial arrangement. Furthermore, the legislation does not allow lessors to adduce evidence that no abuse is taking place.
| 0 |
862,294 |
31. It is clear, however, from the case‑law of the Court that, in order to determine the organisations which should be recognised as ‘charitable’ for the purposes of Article 13A(1)(g) of the Sixth Directive, it is for the national authorities, in accordance with EU law and subject to review by the national courts, to take into account, in particular, the existence of specific provisions, be they national or regional, legislative or administrative, or tax or social security provisions; the public interest nature of the activities of the taxable person concerned; the fact that other taxable persons carrying on the same activities already enjoy similar recognition; and the fact that the costs of the supplies in question may be largely met by health insurance schemes or other social security bodies (see, to that effect, Kügler , paragraphs 57 and 58; Kingscrest Associates and Montecello , paragraph 53; and, by analogy, Case C‑45/01 Dornier [2003] ECR I‑12911, paragraphs 72 and 73; L.u.P. , paragraph 53; and CopyGene , paragraphs 65 and 71).
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74. The Court therefore has jurisdiction to rule on the second plea.
| 0 |
862,295 |
88
The Court of Justice has nevertheless held that judicial review is limited with regard to whether a measure comes within the scope of Article 107(1) TFEU, in a case where the appraisals by the Commission are technical or complex in nature (judgment of 21 June 2012, BNP Paribas and BNL v Commission, C‑452/10 P, EU:C:2012:366, paragraph 103).
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À titre liminaire, il convient de rappeler que, sous réserve de certaines exceptions non pertinentes pour la présente affaire,
la taxation des véhicules automobiles n’a pas été harmonisée au niveau de l’Union. Les États membres sont donc libres d’exercer
leur compétence fiscale dans ce domaine, à condition de l’exercer dans le respect du droit de l’Union (voir arrêt X, C‑302/12,
EU:C:2013:756, point 23 et jurisprudence citée).
| 0 |
862,296 |
29. It is also apparent from settled case-law that an analysis of the definitions of ‘taxable person’ and ‘economic activities’ shows that the scope of the term ‘economic activities’ is very wide, and that the term is objective in character, in the sense that the activity is considered per se and without regard to its purpose or results (see, inter alia, Case C-223/03 University of Huddersfield [2006] ECR I-1751, paragraph 47 and the case-law cited).
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32. As regards the applications for support for agri-environmental production methods based on Articles 22 to 24 of Regulation No 1257/1999, Article 66(5) of Regulation No 817/2004 provides that, where support is multiannual, payments subsequent to that made in the year in which an application was submitted must be made in response to an annual application for payment, except where the Member State has introduced an effective annual verification procedure as referred to in Article 67(1). It is apparent from that Article 66(5) that, apart from the existence of such a national procedure, no payment is made to farmers if they do not submit an annual application for payment. Submission of that annual application thus constitutes a condition governing eligibility for receiving agri-environmental aid on the basis of Articles 22 to 24.
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862,297 |
43 In that connection, it is appropriate to recall, first, that, according to settled case-law (see, in particular, Case 61/79 Denkavit Italiana v Amministrazione delle Finanze dello Stato [1980] ECR 1205, paragraphs 16 and 17, and Joined Cases 66/79, 127/79 and 128/79 Salumi v Amministrazione delle Finanze [1980] ECR 1237, paragraphs 9 and 10), the interpretation which, in the exercise of the jurisdiction conferred on it by Article 177 of the Treaty, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. As the Court recognised in Defrenne II, it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships.
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9. Il convient de souligner que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé (arrêts du 14 juillet 2005, Commission/Espagne, C‑135/03, Rec. p. I‑6909, point 31, et du 6 décembre 2007, Commission/France, C‑106/07, non encore publié au Recueil, point 16).
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862,298 |
40. In that respect, it should be pointed out that, in paragraphs 28 and 21 respectively of the judgments in Bachmann and Commission v Belgium , the Court recognised that the need to maintain the cohesion of a tax system can justify a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty. However, for an argument based on such a justification to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, to that effect, Case C‑484/93 Svensson and Gustavsson [1995] ECR I-3955, paragraph 18; ICI , paragraph 29; and Manninen , paragraph 42).
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19
To that end, it is appropriate, on the one hand, to identify the comparable procedures or action and, on the other, to determine whether the actions concerning enforcement of an act covered by Article 299 TFEU are handled in a less favourable manner than comparable actions concerning the enforcement of an act of a national public authority.
| 0 |
862,299 |
51. However, provided that an appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in an appeal (see Case C-210/98 P Salzgitter v Commission [2000] ECR I‑5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia FNAB and Others v Council , paragraphs 30 and 31; Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49; and Interporc v Commission , paragraph 17).
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38. In that context, even if such transactions are based on the desire of the purchaser to benefit from the preferential rate of duty and even if the importers concerned are aware of that, those transactions may not a priori be regarded as being devoid of economic and commercial justification for the latter.
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