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26. As the Court has previously held, Article 8 of the Protocol, which constitutes a special provision applicable to all legal proceedings for which the Member benefits from immunity in respect of opinions expressed and votes cast in the exercise of parliamentary duties, is intended to protect the freedom of expression and independence of Members of the European Parliament, with the result that it prevents any judicial proceedings in respect of those opinions or votes (see, to that effect, Marra , paragraphs 45 and 27).
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33. The financial resources of a private-law company such as Friulia, 87% of which is held by a public authority such as the Region of Friulia-Venezia Giulia and which acts under the control of that authority, may be regarded as State resources within the meaning of Article 87(1) EC (see, to that effect, Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 32, and Joined Cases 67/85, 68/85 and 70/85 Van der Kooy v Commission [1988] ECR 219, paragraphs 36 and 38). The fact that Friulia participated using its own funds is irrelevant in that regard. For those funds to be categorised as State resources, it is sufficient that, as in the present case, they constantly remain under public control and therefore available to the competent national authorities (see, to that effect, Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 37).
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61. In the light of the foregoing, it will be for the national court, which is called upon, within the exercise of its jurisdiction, to apply and give full effect to provisions of European Union law, to refuse to apply any provision of Legislative Decree No 286/1998 which is contrary to the result of Directive 2008/115, including Article 14(5b) of that legislative decree (see, to that effect, Case 106/77 Simmenthal [1978] ECR 629, paragraph 24; Case C‑462/99 Connect Austria [2003] ECR I‑5197, paragraphs 38 and 40; and Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli [2010] ECR I‑0000, paragraph 43). In so doing, the referring court will have to take due account of the principle of the retroactive application of the more lenient penalty, which forms part of the constitutional traditions common to the Member States (Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others [2005] ECR I‑3565, paragraphs 67 to 69, and Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 59).
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43. Second, the Court has already held that a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, inter alia, Simmenthal , paragraphs 21 and 24; Case C‑187/00 Kutz‑Bauer [2003] ECR I‑2741, paragraph 73; Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others [2005] ECR I‑3565, paragraph 72; and Case C‑314/08 Filipiak [2009] ECR I‑0000, paragraph 81).
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36. At the outset, it must be recalled that it is settled case-law that Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against service providers who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State, where he lawfully provides similar services (see, in particular, Portugaia Construções , paragraph 16 and the case-law cited).
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25. As is apparent from the second recital in the preamble to Directive 97/55, the harmonisation by the directive of the conditions governing the use of comparative advertising is to help to demonstrate objectively the merits of the ‘various comparable products’. As stated in the ninth recital in its preamble, this requirement that the products be comparable is intended in particular to prevent comparative advertising from being used in an anti-competitive and unfair manner.
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27
As a preliminary point, it should be noted that both Directive 69/335 and Directive 2008/7, which repealed and replaced it, provided for complete harmonisation of the cases in which the Member States may levy indirect taxes on the raising of capital (see, to that effect, judgments of 7 June 2007, Commission v Greece, C‑178/05, EU:C:2007:317, paragraph 31, and of 1 October 2009, HSBC Holdings and Vidacos Nominees, C‑569/07, EU:C:2009:594, paragraph 25).
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37. It follows that the treatment of non-resident workers under the national legislation is less favourable than that afforded to workers who reside in Germany in their own homes.
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862,404 |
49 The fact remains, however, that the rule on equal treatment laid down by Article 4 of Protocol No 3 prohibits the Jersey authorities, even if difference of treatment between citizens of the United Kingdom and nationals of other Member States is allowed, from basing the exercise of their powers on factors which would have the effect of applying an arbitrary distinction to the detriment of nationals of other Member States (see, on that point, Adoui and Cornuaille v Belgium, paragraph 7).
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21QUE , D ' UNE PART , L ' EXCEPTION PREVUE A L ' ARTICLE 184 DU TRAITE EST LIMITEE , AUX TERMES DE CETTE DISPOSITION , AUX LITIGES ' METTANT EN CAUSE UN REGLEMENT DU CONSEIL OU DE LA COMMISSION ' ET NE SAURAIT ETRE INVOQUEE EN AUCUN CAS PAR L ' ETAT MEMBRE QUI A ETE DESTINATAIRE D ' UNE DECISION INDIVIDUELLE ;
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71. It should be added that the obligation to take into account all the applicant’s relevant experience does not cease to exist as a result of the adoption of directives on mutual recognition of diplomas (see, to that effect, Case C‑238/98 Hocsman [2000] ECR I‑6623, paragraphs 23 and 31; Case C‑232/99 Commission v Spain [2002] ECR I‑4235, paragraph 22; and Morgenbesser, paragraph 58).
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25. According to that case‑law, it follows that Article 7(2) of Directive 2003/88 must be interpreted as precluding national legislation or practices which provide that, on termination of the employment relationship, no allowance in lieu of paid annual leave not taken is to be paid to a worker who has been on sick leave for the whole or part of the leave year and/or of a carry-over period, which was the reason why he could not exercise his right to paid annual leave. For the calculation of the allowance in lieu, the worker’s normal remuneration, which is that which must be maintained during the rest period corresponding to the paid annual leave, is also decisive ( Schultz-Hoff and Others , paragraph 62).
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47. In such circumstances, as the contracting authority has no influence on the detailed rules of public law governing the service, it is impossible for it to introduce and, therefore, to transfer risk factors which are excluded by those rules. Moreover, it would not be reasonable to expect a public authority granting a concession to create conditions which were more competitive and involved greater financial risk than those which, on account of the rules governing the sector in question, exist in that sector ( Eurawasser , paragraphs 75 and 76).
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76. In such circumstances, as the contracting authority has no influence on the detailed rules of public law governing the service, it is impossible for it to introduce and, therefore, to transfer risk factors which are excluded by those rules.
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39. However, each of the grounds for refusal listed in Article 7(1) of Regulation No 40/94 is independent of the others and calls for separate examination (see, in particular, Henkel v OHIM , paragraph 45, and the case‑law there cited).
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43 It is for the national court to consider whether there exist between the regional electricity distributors in the Netherlands links which are sufficiently strong for there to be a collective dominant position in a substantial part of the common market.
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862,408 |
101
National measures that are capable of hindering intra-Community trade may thus, inter alia, be justified by overriding requirements relating to protection of the environment and notably by the concern to promote an increase in the use of renewable energy sources for the production of electricity, which, as has already been pointed out in paragraph 84 of the present judgment, is useful for such protection and which is also designed to protect the health and life of humans, animals and plants, which are among the public interest grounds listed in Article 30 EC (see, to that effect, in particular, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraphs 77 to 80 and the case-law cited).
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18 Consequently, it should be stated in reply to the second part of the second question that the Directive requires each Member State to ensure the protection of a species of bird naturally occurring in the wild state in the European territory of the Member States to which the Treaty applies, even if the natural habitat of the species in question does not occur in the territory of the Member State concerned.
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43. Furthermore, it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice and also from Articles 168(1)(d) and 169(2) 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, inter alia, the judgments in Bergadem and Goupil v Commission , C‑352/98 P, EU:C:2000:361, paragraph 34; Interporc v Commission , C‑41/00 P, EU:C:2003:125, paragraph 15; and Reynolds Tobacco and Others v Commission , C‑131/03 P, EU:C:2006:541, paragraph 49).
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81. In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter. Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.
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42
Thirdly, it clearly follows from the schematic interpretation of the provisions in question adopted by the Court of Justice that, although the time limit set for the Commission to make its finding has been amended many times by the applicable rules, the EU legislature has, on each occasion, intended to impose on it a precise time limit, taking the view that it was in the interest of both the EU and its Member States that the end of the financial corrections procedure be foreseeable, which implies the setting of a predetermined time-limit for adopting the final decision, while leaving the Commission sufficient time to adopt that decision (see, to that effect, judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 84 to 86 and 88, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 84 to 86 and 88).
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48. Thus, in order to meet the objective of developing effective competition, Directive 93/37 seeks to organise the award of contracts in such a way that the contracting authority is able to compare the different tenders and to accept the most advantageous on the basis of objective criteria ( Fracasso and Leitschutz , paragraph 31 and Sintesi , paragraph 37).
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30. However, the Court has held that the position is otherwise where a financial holding in another company is accompanied by direct or indirect involvement in the management of the company in which the holding has been acquired, without prejudice to the rights held by the holding company as shareholder (see Case C‑60/90 Polysar Investments Netherlands [1991] ECR I‑3111, paragraph 14; Case C‑142/99 Floridienne and Berginvest [2000] ECR I‑9567, paragraph 18; the order in Case C‑102/00 Welthgrove [2001] ECR I‑5679, paragraph 15; and Case C‑16/00 Cibo Participations [2001] ECR I‑6663, paragraph 20), in so far as involvement of that kind entails carrying out transactions which are subject to VAT by virtue of Article 2 of the Sixth Directive, such as the supply of administrative, accounting and information-technology services ( Floridienne and Berginvest , paragraph 19; order in Welthgrove , paragraph 16; Cibo Participations , paragraph 21; and Case C‑305/01 MKG-Kraftfahrzeuge-Factoring [2003] ECR I‑6729, paragraph 46).
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59. La Cour a en outre jugé, au point 49 de l’arrêt du 5 octobre 2006, Commission/France (C-232/05, Rec. p. I-10071), que l’application des procédures nationales dans le domaine considéré est soumise à la condition que celles-ci permettent l’exécution immédiate et effective de la décision de la Commission, condition qui reflète les exigences du principe d’effectivité consacré par la jurisprudence de la Cour, en ajoutant, au point 50 de cet arrêt, que, en cas d’aide illégale incompatible avec le marché commun, une concurrence effective doit être rétablie et que, à cette fin, il importe que l’aide soit récupérée sans délai.
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26. In such circumstances, it is for the national court, which alone has jurisdiction to find and assess the facts, to make the necessary determination whether, in the light of the actual nature of the activities carried out by those concerned, the workers in question perform the same work or work to which equal value can be attributed (see, to that effect, Case C-236/98 JämO [2000] ECR I-2189, paragraph 48, and Brunnhofer , paragraph 49). However, in preliminary ruling proceedings, the Court, which is called on to provide answers of use to the national court, may nevertheless provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraphs 67 and 68).
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18 Moreover, it is apparent from Rule 2(a) of the General Rules for the interpretation of the CN that, for the purposes of customs classification, an incomplete or unfinished article is to be treated in the same way as a complete or finished article, provided that it has the essential character of the complete or finished article. That rule of interpretation is itself clarified by the Customs Cooperation Council's explanatory notes, according to which the heading relating to the finished product covers blanks, that is to say, articles which, although not ready for direct use, have the approximate shape or outline of the finished article and can only be used for completion into the finished article.
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862,413 |
35. It must be recalled that the purpose of Directive 2000/78, as stated in Article 1, is to lay down a general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in that article, which include disability (see Chacón Navas , paragraph 41). In accordance with Article 3(1)(c) of the directive, it applies, within the limits of the areas of competence conferred on the European Union, to all persons, in relation inter alia to conditions of dismissal.
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72. According to that case-law, natural or legal persons satisfy the condition of individual concern only if the contested act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed (see Plaumann v Commission ; Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 36; and Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’ v Commission [2011] ECR I‑4727, paragraph 52).
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16 It is settled case-law that the wording used in one language version of a Community provision cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of Community law. In the event of divergence between the language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part (see Case C-372/88 Milk Marketing Board v Cricket St Thomas [1990] ECR I-1345, paragraphs 18 and 19).
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22. It must be borne in mind that, in paragraph 54 of the judgment under appeal, the Court of First Instance found that the two signs at issue are visually and phonetically similar, but that the degree of similarity in the latter respect is low. It also held in paragraph 55 of that judgment that those signs are not similar from a conceptual point of view.
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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).
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31. Next, the status of producer is not subject to the condition that the holder of a reference quantity should produce it, in whole or in part, in the production units which he was operating when that quantity was allocated to him (Ballmann judgment, cited above, paragraph 14).
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55
Such a presumption implies, unless it is rebutted, that the actual exercise of decisive influence by the parent company over its subsidiary is established and gives grounds for the Commission to hold the former responsible for the conduct of the latter, without having to produce any further evidence (see, to that effect, judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 30).
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32. It follows that a court of the host Member State is not entitled to scrutinise the validity of an E 101 certificate as regards the certification of the matters on the basis of which such a certificate was issued, in particular the existence of a direct relationship between the undertaking which posted the worker and the posted worker himself.
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33
The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court may ascertain exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (see judgment of 22 October 2014 in Commission v Netherlands, C‑252/13, EU:C:2014:2312, paragraph 34 and the case-law cited).
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41. La position 7307 de la NC désigne les accessoires de tuyauterie (raccords, coudes, manchons, par exemple) «en fonte, fer ou acier». Selon la note explicative relative à cette position 7307 du SH, elle englobe un ensemble d’articles «en fonte, fer ou acier», destinés essentiellement à raccorder ou joindre entre eux deux tuyaux ou éléments tubulaires ou un tuyau à un autre dispositif, ou encore à obturer certains éléments de tuyauterie.
| 0 |
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41. The case-law of the Court shows that although, in such a case, the legislation of the Member State liable for payment of the pension may provide for additional social benefits in favour of those insured persons, that is simply an option that that Member State has, and any such conduct does not constitute for those persons a right flowing from Regulation No 1408/71 (Jordens-Vosters , paragraphs 11 to 13).
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66. As regards the question whether, in such a situation, a holding company supplies that service in the capacity of a taxable person, the Court has held, at paragraph 18 of the judgment in Régie dauphinoise , that a person carrying out transactions which constitute the direct, continuous, and necessary extension of the person’s taxable activity, such as the receipt by a managing agent of interest resulting from the placements of monies received from clients in the course of managing those clients’ properties, acts in that capacity.
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21. In order for that difference in treatment to be compatible with the provisions of the Treaty on the freedom of establishment, it must relate to situations which are not objectively comparable or be justified by an overriding reason in the general interest (see judgment in X Holding , C‑337/08, EU:C:2010:89, paragraph 20).
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19 As the Court has made clear on several occasions, rules intended to satisfy a mandatory requirement must be proportionate to the goals pursued, and if a Member State has at its disposal less restrictive means of attaining the same goals it is under an obligation to use them.
| 0 |
862,420 |
37. It should be recalled that, in the context of tax rules, such as those at issue in the main proceedings, which seek to prevent the economic double taxation of distributed profits, the situation of a corporate shareholder receiving foreign-sourced dividends is comparable to that of a corporate shareholder receiving nationally-sourced dividends in so far as, in each case, the profits made are, in principle, liable to be subject to a series of charges to tax ( Test Claimants in the FII Group Litigation , paragraph 62, and Joined Cases C‑436/08 and C‑437/08 Haribo Lakritzen Hans Riegel and Österreichische Salinen [2011] ECR I‑305, paragraph 59).
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35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71.
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39. It is apparent from Article 1 of Directive 95/46 and recitals 2 and 10 in its preamble that that directive seeks to ensure not only effective and complete protection of the fundamental rights and freedoms of natural persons, in particular the fundamental right to respect for private life with regard to the processing of personal data, but also a high level of protection of those fundamental rights and freedoms. The importance of both the fundamental right to respect for private life, guaranteed by Article 7 of the Charter, and the fundamental right to the protection of personal data, guaranteed by Article 8 thereof, is, moreover, emphasised in the case-law of the Court (see judgments in Rijkeboer , C‑553/07, EU:C:2009:293, paragraph 47; Digital Rights Ireland and Others , C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 53; and Google Spain and Google , C‑131/12, EU:C:2014:317, paragraphs, 53, 66, 74 and the case-law cited).
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9 HOWEVER , AT NO POINT IN THE STATEMENT OF THE REASONS ON WHICH THE DECISION AT ISSUE IS BASED IS EXPRESS REFERENCE MADE TO THE INVESTIGATION IN QUESTION . NOR DOES IT APPEAR THAT THE COMMISSION RELIED BY IMPLICATION ON THIS PART OF THE FILE . IN SO FAR AS THE COMMISSION DOES REFER IN ITS DECISION TO THE DISCOUNT POLICY OF MICHELIN NV ' S COMPETITORS , IT DOES SO IN GENERAL STATEMENTS WHICH MICHELIN NV HAS NOT CHALLENGED AT ANY STAGE AND WHICH MOREOVER ARE IRRELEVANT FOR THE PURPOSES OF ASSESSING MICHELIN NV ' S CONDUCT . THE INVESTIGATION IN QUESTION WAS NOT TAKEN INTO CONSIDERATION IN THE PROCEDURE BEFORE THE COURT EITHER .
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55
In that regard, it must be found that, in interpreting Article 1(2) of the Parent-Subsidiary Directive, it is irrelevant that the word ‘necessary’ does not appear expressly in the German language version of the provision. The Member States may, in any event, exercise the option provided for in that article only whilst observing the general principles of EU law and, more specifically, the principle of proportionality (see, by analogy, judgment of 17 July 1997, Leur-Bloem, C‑28/95, EU:C:1997:369, paragraphs 38 and 43).
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98. Firstly, the fact that a national support scheme is designed to favour directly the production of green electricity, rather than solely its consumption, can be explained, in particular, by the fact that the green nature of the electricity relates only to its method of production and that, accordingly, it is primarily at the production stage that the environmental objectives in terms of the reduction of greenhouse gases can actually be pursued (see Ålands Vindkraft , EU:C:2014:2037, paragraph 95).
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32. First, it is clear from that case-law that the place where the alleged damage occurred within the meaning of that provision may vary according to the nature of the right allegedly infringed (see, to that effect, Wintersteiger , paragraphs 21 to 24).
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35. Il y a lieu de rappeler que, selon une jurisprudence constante de la Cour, l’octroi de l’indemnité de dépaysement a pour objet de compenser les charges et désavantages particuliers résultant de la prise de fonctions auprès des Communautés pour les fonctionnaires qui sont de ce fait obligés de transférer leur résidence du pays de leur domicile au pays d’affectation et de s’intégrer dans un nouveau milieu. La notion de dépaysement dépend également de la situation subjective du fonctionnaire, à savoir de son degré d’intégration dans son nouveau milieu résultant, par exemple, de sa résidence habituelle ou de l’exercice d’une activité professionnelle principale (voir arrêts du 10 octobre 1989, Atala‑Palmerini/Commission, 201/88, Rec. p. 3109, point 9, et du 15 septembre 1994, Magdalena Fernández/Commission, C‑452/93 P, Rec. p. I‑4295, point 20).
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135
According to the Court’s settled case-law, a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaties for dealing with the circumstances of the case (judgment of 16 April 2013, Spain and Italy v Council, C‑274/11 and C‑295/11, EU:C:2013:240, paragraph 33 and the case-law cited).
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60. Firstly, Article L 911‑1 of the Social Security Code provides that supplementary collective guarantees under which employees benefit can be established in different ways. The use of a collective agreement is, in that context, a choice made by the social partners, in the knowledge that that provision also allows such cover to be organised at the level of one undertaking, and not at that of an entire occupational sector.
| 0 |
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80. By contrast, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article 87(1) EC ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 87; Enirisorse , paragraph 31; and Servizi Ausiliari Dottori Commercialisti , point 60).
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Il convient de rappeler que, dans le cadre d’une procédure en manquement en vertu de l’article 258 TFUE, il incombe à la Commission
d’établir l’existence du manquement allégué. C’est elle qui doit apporter à la Cour les éléments nécessaires à la vérification
par celle-ci de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (voir, en ce sens, arrêt
du 16 juillet 2015, Commission/Slovénie, C‑140/14, non publié, EU:C:2015:501, point 38 et jurisprudence citée).
| 0 |
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27. Those arguments cannot be upheld. First, Article 4 of the Sixth Directive gives VAT a very wide scope, comprising all stages of production, distribution and the provision of services (see Case 235/85 Commission v Netherlands [1987] ECR 1471, paragraph 7; Case 348/87 Stichting Uitvoering Financiële Acties [1989] ECR 1737, paragraph 10; and Case C‑186/89 van Tiem [1990] ECR I‑4363, paragraph 17).
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La Cour a déjà eu l’occasion de préciser dans ce contexte que, pour être conforme au principe d’effectivité, le calcul des
intérêts afférents aux sommes perçues en violation du droit de l’Union, tels que ceux dont le paiement est réclamé dans l’affaire
au principal, doit être effectué de sorte qu’il soit tenu compte de la période d’indisponibilité des sommes indûment payées,
cette dernière allant de la date du paiement indu de la taxe en cause à la date de la restitution intégrale de celle-ci (voir,
en ce sens, arrêt du 18 avril 2013, Irimie, C‑565/11, EU:C:2013:250, points 27 et 28).
| 0 |
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41. Under paragraphs 2 and 4 of that article, the Council may adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States, and recommendations aimed in particular at encouraging the mobility of students and teachers (see D’Hoop , paragraph 32).
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80. In that respect, it should be noted that, in the light of the Court’s case-law, the restriction in question is appropriate to achieve such an objective, in that it operates in a symmetrical manner, since only the difference in value between the property sold which is situated in Hungary and the value of the property purchased may be taken into account in the tax system at issue (see, to that effect, Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt , paragraph 44).
| 0 |
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39
However, a tax which is incompatible with EU law, such as those mentioned in paragraph 35 above, must be repaid with interest (see, to that effect, judgments of 18 April 2013 in Irimie, C‑565/11, EU:C:2013:250, paragraphs 20 and 21, and 15 October 2014 in Nicula, C‑331/13, EU:C:2014:2285, paragraphs 27 and 28) and its amount must therefore no longer be considered as being incorporated into the market value of the vehicles on which that tax is levied. Since the residual amount of the tax in the value of those vehicles is equal to zero, that amount is thus necessarily lower than the new tax, in this case the environmental stamp duty, levied on imported second-hand vehicles of the same type, characteristics and wear (see, to that effect, judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 50).
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84. Similarly, the prohibition on Community operators accepting landings, placing in cages for fattening or farming and transhipments in Community waters or ports of bluefin tuna caught from 16 or 23 June 2008, irrespective of the flag of the purse seiner which caught them, is not manifestly inappropriate since it also permits the achievement of the objective of compliance with the TACs, the reduction of which will, in the long term, bring about recovery of bluefin tuna.
| 0 |
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29. Nevertheless, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to confirm its own jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Chacón Navas , paragraph 33, and the case-law cited).
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34. It is common ground between the parties that Tomkins’ liability results exclusively from the participation of its subsidiary Pegler in the cartel confirmed in the contested decision.
| 0 |
862,430 |
15 According to the Court' s case-law (see Joined Cases 144 and 145/87 Berg v Besselsen [1988] ECR 2559, paragraph 17), the Directive is applicable whenever, in the context of contractual relations, there is a change in the legal or natural person who is responsible for carrying on the business and who by virtue of that fact incurs the obligations of an employer vis-à-vis the employees of the undertaking, regardless of whether or not ownership of the undertaking is transferred.
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17 As the Court has already held, in its judgment of 17 December 1987 in Case 287/86 Ny Moelle Kro (( 1987 )) ECR 5465, Directive 77/187 is applicable where, following a legal transfer or merger, there is a change in the legal or natural person who is responsible for carrying on the business and who by virtue of that fact incurs the obligations of an employer vis-à-vis the employees of the undertaking, regardless of whether or not ownership of the undertaking is transferred .
| 1 |
862,431 |
36. In order to reply to the question reformulated as above, it should first be noted that, according to the case-law of the Court, Article 22(1)(c) of Regulation No 1408/71 governs the entitlement to benefits in kind of pensioners and members of their family, resident in a Member State, who ask the competent institution for authorisation to go to the territory of another Member State to receive treatment there which is appropriate to their condition, while Article 31 of that regulation, to the exclusion of Article 22(1)(a), governs the entitlement of that class of insured persons to benefits in kind where those benefits become necessary during a stay in a Member State other than the State in which they reside (Pierik , paragraphs 6 and 7; Case C-326/00 IKA [2003] ECR I-1703, paragraphs 26, 34 and 39).
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36. In that regard, in order to distinguish between different categories of social security benefit, the risk covered by each benefit must also be taken into consideration (Case C‑406/04 De Cuyper [2006] ECR I‑6947, paragraph 27).
| 0 |
862,432 |
58. Therefore it is possible not only that, because of linguistic, cultural, social and economic differences, a trade mark which is devoid of distinctive character in one Member State is not so in another Member State (see, to that effect, Case C‑421/04 Matratzen Concord [2006] ECR I‑2303, paragraph 25, and, by analogy, in respect of the misleading nature of a trade mark, Case C‑313/94 Graffione [1996] ECR I‑6039, paragraph 22), but also that a mark devoid of distinctive character at Community level is not so in a Member State.
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73 SUBPARAGRAPH 1 OF ARTICLE 1 ( 1 ) OF THE CONTESTED DECISION MUST THEREFORE BE ANNULLED .
CHAPTER 2
THE COMPLAINT OF A CONCERTED PRACTICE HAVING AS ITS OBJECT THE PROTECTION OF THE NETHERLANDS MARKET
| 0 |
862,433 |
23. As regards the first part of the first ground of appeal, it is settled case-law that the distinctive character of a trade mark, within the meaning of Article 7(1)(b) of Regulation No 40/94, must be assessed, firstly, by reference to the goods or services in respect of which registration has been applied for and, secondly, by reference to the perception of them by the relevant public, which consists of average consumers of the goods or services in question who are reasonably well informed and reasonably observant and circumspect (see Joined Cases C-456/01 P and C-457/01 P Henkel v OHIM [2004] ECR I‑5089, paragraph 35, and Case C-173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I-0000, paragraph 25).
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43. The questions referred by the national court must be examined in the light of those principles.
| 0 |
862,434 |
99. On that basis, only advantages granted directly or indirectly through State resources or constituting an additional burden on the State are to be regarded as aid within the meaning of Article 107(1) TFEU. The very wording of this provision and the procedural rules laid down in Article 108 TFEU show that advantages granted from resources other than those of the State do not fall within the scope of the provisions in question (see, to that effect, Joined Cases C-72/91 and C-73/91 Sloman Neptun [1993] ECR I-887, paragraph 19; Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 35; and Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 58).
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68. À cet égard, il convient d’observer que, certes, la préservation de la répartition du pouvoir d’imposition entre les États membres est susceptible de constituer une raison impérieuse d’intérêt général permettant de justifier une restriction à l’exercice d’une liberté de circulation au sein de l’Union (arrêt Beker, précité, point 56).
| 0 |
862,435 |
24
The possibility of applying the reduced rate of VAT selectively is justified, inter alia, by the fact that, since that rate is the exception, the restriction of its application to concrete and specific aspects of the category of supply in question is consistent with the principle that exemptions or derogations must be interpreted restrictively (judgment of 6 May 2010, Commission v France, C‑94/09, EU:C:2010:253, paragraph 29).
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79 For this reason, a system of penalties intended to ensure compliance with national provisions which are contrary to Community provisions must be held to be contrary to Community law, without there being any need to examine whether or not it meets the tests of non-discrimination and proportionality.
| 0 |
862,436 |
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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60. Il en résulte que la succession ou la donation impliquant un ayant droit ou un donataire ou un de cujus qui ne réside pas sur le territoire espagnol, ou encore une donation ou une succession portant sur un bien immeuble situé en dehors du territoire espagnol ne pourra pas bénéficier de ces abattements fiscaux, si bien que la valeur de cette succession ou de cette donation sera diminuée.
| 0 |
862,437 |
59 On the basis of that provision and of Article 169 of the Treaty, the Commission's function is, in the general interest of the Community, to ensure that the Treaty and the provisions adopted by the institutions thereunder are applied by the Member States and to note the existence 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, and Case C-431/92 Commission v Germany, cited above, paragraph 21).
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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).
| 0 |
862,438 |
68. However, according to settled case-law, for an argument based on such a justification to succeed, a direct link must be established between the tax concession concerned and the offsetting of that concession by a particular tax levy (see, to that effect, Case C-471/04 Keller Holding [2006] ECR I-2107, paragraph 40; Case C-347/04 Rewe Zentralfinanz [2007] ECR I‑2647, paragraph 62; and Case C-443/06 Hollmann [2007] ECR I-0000, paragraph 56).
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61. En outre, une opération de valorisation n’est complète que si elle a pour conséquence que la substance en question a acquis les mêmes propriétés et caractéristiques qu’une matière première et est utilisable dans les mêmes conditions de précaution pour l’environnement (voir arrêts ARCO Chemie Nederland e.a., précité, points 94 et 96, ainsi que Palin Granit, point 46).
| 0 |
862,439 |
34. In that regard, the Court has already ruled that that prohibition applies in particular to national measures which would require an intermediary provider, such as a hosting service provider, to actively monitor all the data of each of its customers in order to prevent any future infringement of intellectual-property rights. Furthermore, such a general monitoring obligation would be incompatible with Article 3 of Directive 2004/48, which states that the measures referred to by the directive must be fair and proportionate and must not be excessively costly (see Scarlet Extended , paragraph 36).
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36. In that regard, the Court has already ruled that that prohibition applies in particular to national measures which would require an intermediary provider, such as an ISP, to actively monitor all the data of each of its customers in order to prevent any future infringement of intellectual-property rights. Furthermore, such a general monitoring obligation would be incompatible with Article 3 of Directive 2004/48, which states that the measures referred to by the directive must be fair and proportionate and must not be excessively costly (see L’Oréal and Others , paragraph 139).
| 1 |
862,440 |
38. As regards the argument relied on by the Republic of Austria, that putting in place regeneration plants on its territory is uneconomical and that in those circumstances and by reason of the principle of proportionality the obligations of the Member States concerned should be modified according to the actual circumstances prevailing in them, it must be recalled, as the Court held in paragraphs 35 to 43 of its judgment in Case C-102/97 Commission v Germany [1999] ECR I‑5051, that one of the primary objectives of the Directive was to give priority to the processing of waste oils by regeneration. Therefore, to consider that the technical, economic and organisational circumstances obtaining in a Member State automatically constituted constraints making it impossible to adopt the measures provided for in Article 3(1) of the Directive would deprive that provision of all practical effect, since the obligation imposed on Member States would be limited by maintenance of the status quo, with the result that there would be no genuine obligation to take the measures necessary to give priority to the processing of waste oils by regeneration.
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101
Moreover, it is settled case-law that the beneficiary of aid may challenge a demand for recovery only if he acted in good faith when applying for it (judgment of 19 September 2002, Huber, C‑336/00, EU:C:2002:509, paragraph 58 and the case-law cited).
| 0 |
862,441 |
22. As the Court has already held, Article 2(4) is specifically and exclusively designed to authorise measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life (Case C‑409/95 Marschall [1997] ECR I-6363, paragraph 26).
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38 With regard to the right to be defended, to which the question submitted to the Court refers, this occupies a prominent position in the organisation and conduct of a fair trial and is one of the fundamental rights deriving from the constitutional traditions common to the Member States.
| 0 |
862,442 |
59. Finally, in so far as concerns Case 110/79 Coonan [1980] ECR 1445, paragraph 13 and Case 70/80 Vigier [1981] ECR 229, paragraphs 19 and 20, also relied on at the hearing, although it is true that the Court held in those judgments that, where national legislation makes affiliation to a social security scheme conditional on prior affiliation by the person concerned to the national social security scheme, Regulation No 1408/71 does not compel Member States to treat as equivalent insurance periods completed in another Member State and those which must have been completed previously on national territory, suffice it to note that the present case does not concern the affiliation to a social security scheme, since Mrs Dumont de Chassart is affiliated to the Belgium social security scheme for employed persons.
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32. La récupération doit s’effectuer sans délai et, plus précisément, dans celui prévu dans la décision, adoptée au titre de l’article 108, paragraphe 2, TFUE, enjoignant la récupération d’une aide d’État ou, le cas échéant, dans celui fixé par la Commission par la suite. Une récupération tardive, postérieure aux délais impartis, ne saurait satisfaire aux exigences du traité (arrêt du 13 octobre 2011, Commission/Italie, C‑454/09, point 37).
| 0 |
862,443 |
33. Secondly, it should be noted, on the one hand, that the Court has already held that use of a trade mark to inform the public that the advertiser is specialised in the sale, or that he carries out the repair and maintenance, of products bearing that trade mark which have been marketed under that mark by its owner or with his consent, constitutes a use indicating the intended purpose of a product within the meaning of Article 6(1)(c) of Directive 89/104 (see BMW , paragraphs 54 and 58 to 63). That information is necessary in order to preserve the system of undistorted competition in the market for that product or service.
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43
To that end, in addition to the physical presence of a child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent and that the child’s residence corresponds to the place which reflects such integration in a social and family environment (judgment of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraph 38).
| 0 |
862,444 |
64. However, in order for the provisions relating to freedom of establishment to apply, it is generally necessary to have secured a permanent presence in the host Member State and, where immovable property is purchased and held, that that property should be actively managed ( Centro di Musicologia Walter Stauffer , paragraph 19).
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26. In the first place, as regards the question whether the legislation at issue in the main proceedings falls within the scope of the Directive, it must be noted that it follows from Article 3(1)(a) of the Directive that it applies, within the framework of the areas of competence conferred on the Community, ‘to all persons, as regards both the public and private sectors, including public bodies, in relation to … conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy’ (see Case C‑88/08 Hütter [2009] ECR I‑0000, paragraph 34).
| 0 |
862,445 |
25
As regards the rules on State aid, it is settled case-law that classification of a national measure as ‘State aid’ requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between the Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (judgments of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 40, and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 53 and the case-law cited).
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41. La Cour a déjà jugé que la condition relative à l’existence d’une impossibilité absolue d’exécution n’est pas remplie lorsque l’État membre défendeur se borne à faire part à la Commission des difficultés juridiques, politiques ou pratiques que présentait la mise en œuvre de la décision concernée, sans entreprendre une véritable démarche auprès des entreprises en cause afin de récupérer l’aide et sans proposer à la Commission d’autres modalités de mise en œuvre de ladite décision qui auraient permis de surmonter ces difficultés (voir arrêt du 5 mai 2011, Commission/Italie, C‑305/09, non encore publié au Recueil, point 33 et jurisprudence citée).
| 0 |
862,446 |
69. It should be added in that regard that the obligation to hear undertakings subject to proceedings under Article 81 EC is fulfilled when the Commission states, in the statement of objections, that it will examine whether fines should be imposed on the undertakings considered and when it indicates the main matters of fact and of law which may result in the imposition of a fine, such as the duration and gravity of the infringement involved (see, in particular, Case 322/81 Michelin v Commission [1983] ECR 3461, paragraphs 19 and 20).
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28. Second, bearing in mind in particular the fact that the essential aim of any rules governing the production and distribution of medicinal products must be to safeguard public health, as stated in recital 2 in the preamble to Directive 2001/83, the concept of a ‘reference medicinal product’, within the meaning of Article 10(2)(a) of that directive, cannot be interpreted in such a way that the abridged procedure provided for in that article amounts to a relaxation of the requirements of safety and efficacy which must be met by medicinal products (judgment in Generics (UK) , EU:C:2009:379, paragraph 24 and the case-law cited). It is therefore essential, in order for it to be possible to grant a marketing authorisation for a generic medicinal product on the basis of the abridged procedure, that all the particulars and documents relating to the reference product and demonstrating its safety and efficacy should remain available to the competent authority concerned by the application for authorisation (see, to that effect, judgment in Generics (UK) , EU:C:2009:379, paragraph 25 and the case-law cited).
| 0 |
862,447 |
134. The essence of effective judicial protection must be that it should enable the person concerned to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is retroactively erased from the legal order and is deemed never to have existed, that the listing of his name, or the continued listing of his name, on the list concerned was vitiated by illegality, the recognition of which may re‑establish the reputation of that person or constitute for him a form of reparation for the non-material harm he has suffered (see, to that effect, Abdulrahim v Council and Commission , paragraphs 67 to 84).
– The errors of law affecting the judgment under appeal
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43. In the light of the foregoing considerations, the answer to the fifth question is that Article 7(2) of Directive 2003/88 must be interpreted as precluding a provision of national law which restricts, by a carry‑over period of nine months on expiry of which the entitlement to paid annual leave lapses, the right of a public servant who is retiring to cumulate the allowances in lieu of paid annual leave not taken because he was unfit for service.
Costs
| 0 |
862,448 |
35. It must be recalled, first, that under the system laid down by Article 226 EC, the Commission has a discretion to bring an action for failure to fulfil obligations and it is not for the Court to assess whether it was appropriate to exercise that discretion (Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 20) and that, second, a Member State cannot, in any event, plead the principle of reciprocity and rely on a possible infringement of the Treaty by another Member State in order to justify its own default (Case 325/82 Commission v Germany [1984] ECR I-777, paragraph 11, and Case C-131/01 Commission v Italy [2003] ECR I-1659, paragraph 46).
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12 A company' s assets include all the property which the shareholders have contributed, together with any increase in its value . A company which realizes a profit and adds it to its reserves thereby increases its assets . Conversely, the assets of a company which incurs losses will decline .
| 0 |
862,449 |
53
In order to answer that question, it must be recalled at the outset that the concept of ‘matters relating to a contract’, within the meaning of that provision, cannot be taken to refer to the classification under the relevant national law of the legal relationship in question before the national court. That concept must, on the contrary, be interpreted independently, regard being had to the general scheme and objectives of Regulation No 44/2001, in order to ensure that it is applied uniformly in all the Member States (judgments of 17 June 1992 in Handte, C‑26/91, EU:C:1992:268, paragraph 10; of 14 March 2013 in Česká spořitelna, C‑419/11, EU:C:2013:165, paragraph 45, and of 28 January 2015 in Kolassa, C‑375/13, EU:C:2015:37, paragraph 37).
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56. À titre liminaire, il y a lieu de rappeler que l’Union est une Union de droit dans laquelle ses institutions sont soumises au contrôle de la conformité de leurs actes, notamment, avec les traités, les principes généraux du droit ainsi que les droits fondamentaux (arrêt Inuit Tapiriit Kanatami e.a./Parlement et Conseil, précité, point 91).
| 0 |
862,450 |
33. Moreover, according to settled case‑law, although Regulation No 1408/71, as new legislation concerning social security for migrant workers applicable in Poland with effect from 1 May 2004, was, in principle, valid at that point only for the future, it may nevertheless apply to the future effects of situations which came about during the period of validity of the old legislation (see, to that effect, Case C‑290/00 Duchon [2002] ECR I‑3567, paragraph 21 and the case‑law cited).
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33 Lastly, the French Government states that significant measures have been adopted to avoid any deterioration of habitats or of species on the site.
| 0 |
862,451 |
17 The Court has also held that a Member State which, in giving effect to a Commission decision on State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences overlooked by the Commission, must submit those problems to the Commission for consideration, together with proposals for suitable amendments to the decision in question. In such cases, the Commission and the Member State must, by virtue of the rule imposing on the Member States and the Community institutions a duty of genuine cooperation which underlies, in particular, Article 5 of the Treaty, work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions and, in particular, the provisions on aid (see the above judgment in Case C-349/93 Commission v Italy, paragraph 13, and the case-law cited therein).
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28. The entry of the mark in a public register has the aim of making it accessible to the competent authorities and to the public, particularly to economic operators.
| 0 |
862,452 |
31
It must be recalled, first, that it is the responsibility of the national court to define the legislative and factual context of the dispute before it (see, to that effect, judgment of 21 September 2016, Radgen, C‑478/15, EU:C:2016:705, paragraphs 27 and 32 and the case-law cited).
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325. Moreover, those Guidelines do not require the Sanctions Committee to communicate to the applicant the reasons and evidence justifying his appearance in the summary list or to give him access, even restricted, to that information. Last, if that Committee rejects the request for removal from the list, it is under no obligation to give reasons.
| 0 |
862,453 |
44. Excluded in principle from classification as economic activity are activities which fall within the exercise of public powers (see, in particular, Case C‑49/07 MOTOE [2008] ECR I‑4863, paragraph 24 and case-law cited, and, concerning Directive 77/187, Case C‑298/94 Henke [1996] ECR I‑4989, paragraph 17). By contrast, services which, without falling within the exercise of public powers, are carried out in the public interest and without a profit motive and are in competition with those offered by operators pursuing a profit motive have been classified as economic activities (see, in that respect, Case C‑41/90 Höfner and Elser [1991] ECR I‑1979, paragraph 22; Aéroports de Paris v Commission , paragraph 82; Cassa di Risparmio di Firenze and Others , paragraphs 122 and 123).
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38. It should in this regard be borne in mind that, although the desire to avoid disturbances on the labour market is undoubtedly an overriding reason of general interest (see, to that effect, Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 13), workers employed by an undertaking established in a Member State and who are deployed to another Member State for the purposes of providing services there do not purport to gain access to the labour market of that second State, as they return to their country of origin or residence after the completion of their work (see Rush Portuguesa , paragraph 15; Vander Elst , paragraph 21; and Finalarte , paragraph 22).
| 0 |
862,454 |
35. Given that the governments of Member States have lodged written observations arguing that the reference for a preliminary ruling is inadmissible or expressed doubts about the admissibility of some of the questions referred, it should be pointed out that, according to the Court’s consistent case-law, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, bound to give a ruling unless it is obvious that the request for a preliminary ruling is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of EU law requested bears no relation to the actual facts of the main action or its purpose, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgment in Les Vergers du Vieux Tauves , C‑48/07, EU:C:2008:758, paragraph 17).
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59. Ainsi, s’agissant de la directive 2000/78, la Cour a jugé, au point 54 de l’arrêt HK Danmark, précité, que ladite notion devait être entendue comme visant l’élimination des diverses barrières qui entravent la pleine et effective participation des personnes handicapées à la vie professionnelle sur la base de l’égalité avec les autres travailleurs.
| 0 |
862,455 |
16. If that is not the case, that irregularity cannot be regarded as having been cured by the fact that the defendant Member State submitted observations on the reasoned opinion (see Commission v Austria , paragraph 41 and the case-law cited). In accordance with settled case-law, the pre-litigation procedure constitutes an essential guarantee not only in order to protect the rights of the Member State concerned, but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (see, inter alia, Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 35, and Case C-392/99 Commission v Portugal [2003] ECR I-3373, paragraph 133).
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76 Additional security is offered by Article 6 of the Directive, which cites as contrary to ordre public and morality, and therefore excluded from patentability, processes for cloning human beings, processes for modifying the germ line genetic identity of human beings and uses of human embryos for industrial or commercial purposes. The 38th recital of the preamble to the Directive states that this list is not exhaustive and that all processes the use of which offend against human dignity are also excluded from patentability.
| 0 |
862,456 |
23. The difference in treatment, found in paragraph 21 above in relation to the granting of the tax advantage in question, between losses sustained by resident subsidiaries and those of non-resident subsidiaries is of such a kind as to hinder the exercise by the group parent company of its freedom of establishment for the purposes of Article 49 TFEU by deterring it from setting up subsidiaries in other Member States (see, to that effect, judgments in Marks & Spencer , EU:C:2005:763, paragraph 33; Felixstowe Dock and Railway Company and Others , EU:C:2014:200, paragraph 21; and Nordea Bank Danmark , C‑48/13, EU:C:2014:2087, paragraph 22).
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60 It is apparent from the set of rules of which Regulation No 1361/98 forms part, and from the economic context in which that regulation was adopted, including in particular the developments which have occurred in the sugar market during recent marketing years, that neither the Italian Government nor economic operators in the sugar sector could have been unaware of the reasons for classifying Italy as a non-deficit area.
| 0 |
862,457 |
45. By contrast, concerning the warehousekeeper such as in the present case TOP Logistics, it must be held that its provision of a warehouse service for goods bearing another’s trade mark does not constitute use of a sign identical to that trade mark for goods or services identical or similar to those in respect of which the mark is registered. Inasmuch as such a service provider permits such use by its customers, its role cannot be assessed under Directive 89/104 but must be examined, if necessary, from the point of view of other rules of law (see, by analogy, judgment in Frisdranken Industrie Winters , C‑119/10, EU:C:2011:837, paragraphs 28 to 35).
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37. With regard to the first part of the first question, relating to the scope of the system of common prices instituted by Regulation No 804/68, it should be observed at the outset, as the Advocate General noted in point 32 of her Opinion, that it is settled case-law that, where there is a regulation on the common organisation of the markets in a given sector, the Member States are under an obligation to refrain from taking any measures which might undermine or create exceptions to it. Rules which interfere with the proper functioning of a common organisation of the markets are also incompatible with such common organisation, even if the matter in question has not been exhaustively regulated by it (see, inter alia, Case C-1/96 Compassion in World Farming [1998] ECR I-1251, paragraph 41, and the case-law there cited).
| 0 |
862,458 |
107. The principles of customary international law mentioned in paragraph 103 of the present judgment may be relied upon by an individual for the purpose of the Court’s examination of the validity of an act of the European Union in so far as, first, those principles are capable of calling into question the competence of the European Union to adopt that act (see Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85 Ahlström Osakeyhtiö and Others v Commission [1988] ECR 5193, paragraphs 14 to 18, and Case C‑405/92 Mondiet [1993] ECR I‑6133, paragraphs 11 to 16) and, second, the act in question is liable to affect rights which the individual derives from European Union law or to create obligations under European Union law in his regard.
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44. In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines on the parent company, without having to establish the personal involvement of the latter in the infringement (see Akzo Nobel and Others v Commission , paragraph 59; General Química and Others v Commission , paragraph 38, and Elf Aquitaine v Commission , paragraph 55).
| 0 |
862,459 |
100
The reasonableness of a period cannot be determined by reference to a precise maximum limit determined in an abstract manner (judgments of 7 April 2011 in Greece v Commission, C‑321/09 P, EU:C:2011:218, paragraph 33, and 28 February 2013 in Review of Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraphs 29 and 30).
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31. The quality of performance of a public contract may depend decisively on the ‘professional merit’ of the people entrusted with its performance, which is made up of their professional experience and background.
| 0 |
862,460 |
154. As regards, second, the purported infringement of the fundamental right to fair legal process and the principle of good administration, it should be noted that, while the Commission may not be classified as a ‘tribunal’ within the meaning of Article 6 of the ECHR (see, to that effect, Joined Cases 209/78 to 215/78 and 218/78 Landewyck and Others v Commission [1980] ECR I‑3125, paragraph 81, and Musique Diffusion française and Others v Commission , paragraph 7), it is nevertheless required during the administrative procedure to respect the fundamental rights of the European Union, which include the right to good administration enshrined in Article 41 of the Charter. In particular, it is that provision, not Article 47 of the Charter, which governs the administrative procedure relating to restrictive practices before the Commission (see, to that effect, Case C‑109/10 P Solvay v Commission [2011] ECR I‑0000, paragraph 53, and Case C‑110/10 P Solvay v Commission [2011] ECR I‑0000, paragraph 48).
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53 The national court also takes the view that the exporter, as the party responsible for the customs offence, would be unjustly enriched if the importer were to pay the customs debt.
| 0 |
862,461 |
59
However, as the General Court was right to observe in paragraph 55 of the judgment under appeal, it is the Court’s settled case-law that, while that guide may be regarded as an explanatory document, which may be taken into consideration, if appropriate, along with other relevant material for the purpose of interpreting the Aarhus Convention, the indications contained therein have no binding force and do not have the normative effect of the provisions of that convention (see, inter alia, judgment of 19 December 2013, Fish Legal and Shirley, C‑279/12, EU:C:2013:853, paragraph 38 and the case-law cited).
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35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71.
| 0 |
862,462 |
47. The relationship between a public authority which is a contracting authority and its own departments is governed by considerations and requirements proper to the pursuit of objectives in the public interest. Any private capital investment in an undertaking, on the other hand, follows considerations proper to private interests and pursues objectives of a different kind ( Stadt Halle and RPL Lochau , paragraph 50).
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51. Freedom to pursue an occupation is one of the general principles of Community law (Case C-177/90 Kühn [1992] ECR I-35, paragraph 16; Case C-280/93 Germany v Council [1994] ECR I‑4973, paragraph 78; and SAM Schiffahrt and Stapf , paragraph 72). The same is true of freedom to conduct a business, which coincides with freedom to pursue an occupation (Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I‑415, paragraphs 72 to 77).
| 0 |
862,463 |
52. That conclusion is not shaken by the considerations set out in paragraph 26 of Case C‑231/03 Coname [2005] ECR I‑7287, indicating that the fact that a company such as that concerned in the case giving rise to that judgment is open to private capital prevents it from being regarded as a structure for the ‘in-house’ management of a public service on behalf of the municipalities which form part of it. In that case, a public service was awarded to a company in which not all, but most, of the capital was public, and so mixed, at the time of that award ( Coname , paragraphs 5 and 28).
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39. Quant au point de savoir si l’utilisation d’une définition fonctionnelle peut en soi être suffisante, il convient de constater que l’article 3, sous a), du règlement nº 469/2009 ne s’oppose pas, en principe, à ce qu’un principe actif répondant à une définition fonctionnelle figurant dans les revendications d’un brevet délivré par l’OEB puisse être considéré comme étant protégé par ledit brevet, à la condition toutefois que, sur la base de telles revendications, interprétées notamment à la lumière de la description de l’invention, ainsi que le prescrivent l’article 69 de la CBE et le protocole interprétatif de celui-ci, il est possible de conclure que ces revendications visaient, implicitement mais nécessairement, le principe actif en cause, et ce de manière spécifique.
| 0 |
862,464 |
37 The Court has consistently held that, in the absence of relevant Community rules, it is for the national legal order of each Member State to designate the competent courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law, provided that such rules are not less favourable than those governing similar domestic actions and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (see, to that effect, Case 33/76 Rewe [1976] ECR 1989, paragraphs 5 and 6, Case 45/76 Comet [1976] ECR 2043, paragraph 13, Fisscher, cited above, paragraph 39, and Case C-410/92 Johnson [1994] ECR I-5483, paragraph 21).
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72. With regard to the other studies, it is sufficient to note that they cannot be considered relevant, given that they were prepared either during the works or after their completion, that is to say after grant of the authorisation of 14 February 2003.
| 0 |
862,465 |
64
As a preliminary point, it must be recalled, as the referring court correctly states, that, in accordance with settled case-law, the inapplicability of a technical regulation which has not been notified in accordance with Article 8 of Directive 98/34 can be invoked in proceedings between individuals (see judgments of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 54, and 26 September 2000, Unilever, C‑443/98, EU:C:2000:496, paragraphs 40 to 43, 48 and 49).
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63. In so far as vitamins or minerals are usually defined as substances which, in minute quantities, form an essential part of the daily diet and are indispensable for the proper functioning of the body, they cannot, as a general rule, be regarded as medicinal products when they are consumed in small quantities. Similarly, it is a fact that vitamin preparations or preparations containing minerals are sometimes used, generally in large doses, for therapeutic purposes in combating certain diseases other than those of which the morbid cause is a vitamin or mineral deficiency. In such cases, it is beyond dispute that those preparations constitute medicinal products (see, in respect of vitamins, Van Bennekom , paragraphs 26 and 27).
| 0 |
862,466 |
60. It must also be borne in mind that Article 7 of the Charter, mentioned by the referring court in its question, must be read in a way which respects the obligation to take into consideration the child’s best interests, recognised in Article 24(2) of that Charter, and taking into account the fundamental right of a child to maintain on a regular basis personal relationships and direct contact with both of his or her parents, stated in Article 24(3) (see, to that effect, Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 58). Moreover, it is apparent from recital 33 in the preamble to Regulation No 2201/2003 that that regulation recognises the fundamental rights and observes the principles of the Charter, while, in particular, seeking to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter. Accordingly, the provisions of that regulation cannot be interpreted in such a way that they disregard that fundamental right of the child, the respect for which undeniably merges into the best interests of the child (see, to that effect, Case C‑403/09 PPU Detiček [2009] ECR I‑0000, paragraphs 53 to 55).
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115. In that regard, it is appropriate to bear in mind that, by virtue of settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Joined Cases C‑184/02 and C‑223/02 Spain and Finland v Parliament and Council [2004] ECR I‑7789, paragraph 64; Arnold André , paragraph 68, and Swedish Match , paragraph 70).
| 0 |
862,467 |
46. In that regard, it is settled case-law that the need to provide an interpretation of EU law which will be of use to the national court requires that the national court define the factual and legal context of its questions or, at the very least, that it explain the factual circumstances on which those questions are based (see, in particular, Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraph 22; Case C‑145/03 Keller [2005] ECR I‑2529, paragraph 29; and Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 45).
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58. In that regard, first, the wording of the second subparagraph of Article 23(2) of Regulation No 1/2003 is clear in so far as it imposes the requirement that, ‘[f]or each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year’.
| 0 |
862,468 |
29 Although, as regards the division of jurisdiction between the Community judicature and national courts, it is in principle for the national court to determine whether those conditions are fulfilled in the case pending before it, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, for example, Haim, cited above, paragraph 58).
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44 In contrast, the condition of necessity will not be satisfied if replacement of the trade mark is explicable solely by the parallel importer's attempt to secure a commercial advantage.
| 0 |
862,469 |
24. Thus, any intra-Community acquisition that is taxed in the Member State where the dispatch or intra-Community transport of goods ends under the first subparagraph of Article 28a(1)(a) of the Sixth Directive has, as a corollary, an exempted supply in the Member State in which that dispatch or transport began under the first subparagraph of Article 28c(A)(a) of that directive (Case C‑245/04 EMAG Handel Eder [2006] ECR I‑3227, paragraph 29).
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16 According to the same case-law, having regard to those principles, it is only exceptionally that the Court may limit the effects of a judgment ruling on a request for interpretation (Denkavit Italiana, paragraph 17, and Bautiaa and Société Française Maritime, paragraph 48, both cited above).
| 0 |
862,470 |
39 It should be remembered that the reservation provided for in Article 48(3) of the Treaty opens the possibility to Member States, faced with a genuine and sufficiently serious threat affecting a fundamental interest of society, to place restrictions on the free movement of workers (see, to that effect, Case 30/77 Bouchereau [1977] ECR 1999, paragraph 35, and Case C-363/89 Roux [1991] ECR I-273, paragraph 30).
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70 Nevertheless, an obligation of the kind imposed by the rules at issue in the main proceedings, to disclose certain information to the authorities of the host Member State, gives rise to additional expense and administrative and economic burdens for businesses established in another Member State (see, to that effect, Arblade, paragraph 58).
| 0 |
862,471 |
46. It is thus clear from case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the general interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49, and Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55). Likewise, as regards the decisions which Directive 90/435 leaves in the hands of the Member States, the Court has pointed out that these may be exercised only in compliance with the fundamental provisions of the Treaty, in particular those relating to freedom of establishment ( Keller Holding , paragraph 45).
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9 TAKING INTO ACCOUNT WHAT HAS BEEN SAID ABOVE , IT SHOULD BE STATED THAT THE MERE FACT THAT A CLAUSE CONFERRING JURISDICTION IS PRINTED AMONG THE GENERAL CONDITIONS OF ONE OF THE PARTIES ON THE REVERSE OF A CONTRACT DRAWN UP ON THE COMMERCIAL PAPER OF THAT PARTY DOES NOT OF ITSELF SATISFY THE REQUIREMENTS OF ARTICLE 17 , SINCE NO GUARANTEE IS THEREBY GIVEN THAT THE OTHER PARTY HAS REALLY CONSENTED TO THE CLAUSE WAIVING THE NORMAL RULES OF JURISDICTION .
IT IS OTHERWISE IN THE CASE WHERE THE TEXT OF THE CONTRACT SIGNED BY BOTH PARTIES ITSELF CONTAINS AN EXPRESS REFERENCE TO GENERAL CONDITIONS INCLUDING A CLAUSE CONFERRING JURISDICTION .
| 0 |
862,472 |
32. For the sake of completeness, it should be emphasised that that interpretation is without prejudice to Article 3(3) of Regulation No 2988/95 according to which Member States are to retain the possibility of applying a period which is longer than that provided for in Article 3(1) and (2) of that regulation respectively (see, to that effect, judgments in Cruz & Companhia , C‑341/13, EU:C:2014:2230, paragraph 54, and Ze Fu Fleischhandel and Vion Trading , C‑201/10 and C‑202/10, EU:C:2011:282, paragraph 25).
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15 At paragraph 15 of its judgment of 8 April 1976 in Case 43/75 Defrenne v Sabena [1976] ECR 455, where there was a claim in the main proceedings for compensation for discrimination in relation to pay, the Court ruled, in view of the connection between Article 119 and harmonization of working conditions while maintaining improvement, against the argument that compliance with Article 119 could be achieved otherwise than by raising the lowest salaries.
| 0 |
862,473 |
50
In accordance with settled case-law, the Member States’ obligation, arising from a directive, to achieve the result envisaged by that directive, and their duty under Article 4 TEU to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (see, in particular, judgment of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 106 and the case-law cited).
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41. Consequently, in order to determine whether there was bad faith, consideration must also be given to the applicant’s intention at the time when he files the application for registration.
| 0 |
862,474 |
43 The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 25 and 26, Case 113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke and Benteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council [1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 9).
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26. He does not lose his status as worker for the purposes of Article 45 TFEU because he holds employment with an international organisation (see, to that effect, Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 11).
| 0 |
862,475 |
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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58. In that regard, taking into account the progress and the special features of the mortgage enforcement proceedings at issue in the main proceedings, such an eventuality must however be regarded as remote because there is a s ignificant risk that the consumer in question will not make that preliminary registration within the period prescribed for that purpose, either because of the rapidity of the enforcement proceedings in question or because he is unaware of or does not appreciate the extent of his rights (see, to that effect, Banco Español de Crédito , paragraph 54).
| 0 |
862,476 |
72. For reasons comparable to those set out in detail by the Court in the judgment in LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 52 to 65), the Commission was entitled to consider that the full disclosure of the contested studies which, when the express decision was adopted, had already led it to send a letter of formal notice to a Member State, under the first paragraph of Article 258 TFEU, and had, consequently, been placed in a file relating to the pre-litigation stage of infringement proceedings, would have been likely to disturb the nature and progress of that stage of proceedings, by making more difficult both the process of negotiation between the Commission and the Member State and the pursuit of an amicable agreement whereby the alleged infringement could be brought to an end, without it being necessary to resort to the judicial stage of those proceedings. The Commission was, consequently, justified in considering that such full disclosure would have undermined the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.
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45. It is thus necessary to establish whether the service provider takes the risk of operating the service. While that risk may, at the outset, be very limited, it is necessary for classification as a service concession that the contracting authority transfer to the concession holder all or, at least, a significant share of the risk which it faces (see, to that effect, Privater Rettungsdienst und Krankentransport Stadler , cited above in paragraph 40, paragraph 29).
| 0 |
862,477 |
62
As follows from Article 171(1) of the Rules of Procedure, the appeal is to be served on the other parties to the relevant case before the General Court. The procedural documents thus communicated to the parties to the case before the Court of Justice are not available to the public. Consequently, Mr Breyer’s publication on the internet of the pleadings in the present proceedings, without being authorised to do so, constitutes misuse of the pleadings liable to harm the sound administration of justice, which should be taken into account when sharing the costs incurred in the present proceedings (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 92, 93 and 97 to 99).
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121. That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded.
| 0 |
862,478 |
79 It should be recalled that the concept of force majeure in the sphere of agricultural regulations must be construed as referring to abnormal and unforeseeable circumstances beyond the control of the trader concerned, whose consequences could not have been avoided in spite of the exercise of all due care (see Case C-124/92 An Bord Bainne Co-operative and Inter-Agra [1993] ECR I-5061, paragraph 11; Boterlux, cited above, paragraph 34).
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À cet égard, la Commission n’est pas tenue de communiquer au destinataire d’une décision de demande de renseignements toutes
les informations dont elle dispose relatives à des infractions présumées ni de procéder à une qualification juridique rigoureuse
de ces infractions, pour autant qu’elle indique clairement les soupçons qu’elle entend vérifier (voir, par analogie, arrêt
Nexans et Nexans France/Commission, C‑37/13 P, EU:C:2014:2030, point 35 ainsi que jurisprudence citée).
| 0 |
862,479 |
75. Like the practices referred to in paragraph 49 of the judgment in Marks & Spencer , which involved arranging transfers of losses incurred within a group of companies to companies established in the Member States which applied the highest rates of taxation and in which the tax value of those losses was therefore the greatest, the type of conduct described in the preceding paragraph is such as to undermine the right of the Member States to exercise their tax jurisdiction in relation to the activities carried out in their territory and thus to jeopardise a balanced allocation between Member States of the power to impose taxes ( Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 56).
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36. Firstly, it must be noted that it is apparent from the wording of the third subparagraph of Article 3(1) of Regulation No 2988/95 that the concept of ‘person in question’ designates the economic operator suspected of having committed the irregularities in respect of which an investigation was initiated or legal proceedings were brought, namely, here, Pfeifer & Langen.
| 0 |
862,480 |
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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19 It should be noted that the first subparagraph of Article 3(1) of the Habitats Directive provides for the setting up of a coherent European ecological network of SACs to be known as Natura 2000, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, to enable them to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.
| 0 |
862,481 |
22
In that regard, it is sufficient to point out that the obligation at issue in the main proceedings, to supply electricity produced by cogeneration, was imposed by the Law on energy, and that measure must therefore be regarded as attributable to the State (see, to that effect, judgment of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 18).
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84 The same applies, even in the absence of any express provision authorising its institutions to negotiate with non-member countries, where the Community has achieved complete harmonisation in a given area, because the common rules thus adopted could be affected within the meaning of the AETR judgment if the Member States retained freedom to negotiate with non-member countries (Opinion 1/94, paragraph 96; Opinion 2/92, paragraph 33).
| 0 |
862,482 |
32. Secondly, the derogation provided for in the first paragraph of Article 45 EC must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority (see, inter alia, Case 2/74 Reyners [1974] ECR 631, paragraph 45; Case C‑42/92 Thijssen [1993] ECR I‑4047, paragraph 8; and Case C‑283/99 Commission v Italy [2001] ECR I-4363, paragraph 20).
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35. Accordingly, since it is not inconceivable, as the Verwaltungsgerichtshof finds in the order for reference, that medical practitioners specialising in dentistry, such as Mr Heiser, might be in competition with their colleagues established in another Member State, the second condition for the application of Article 92(1) of the Treaty must be considered to be fulfilled.
| 0 |
862,483 |
41
The Court also considers that it is compatible with EU law to lay down reasonable time limits for bringing proceedings in the interests of legal certainty, which protects both the individual and the administrative authority concerned. In particular, it finds that such time limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, judgments of 15 April 2010, Barth, C‑542/08, EU:C:2010:193, paragraph 28, and of 16 January 2014, Pohl, C‑429/12, EU:C:2014:12, paragraph 29).
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29. As regards the principle of effectiveness, the Court has stated that it is compatible with European Union law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty to the extent that such time-limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by European Union law (see, to that effect, Barth , paragraph 28 and the case-law cited).
| 1 |
862,484 |
32. In such circumstances, according to settled case-law, the need for a uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union; that interpretation must take into account the context of the provision and the objective of the relevant legislation (see, in particular, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C-287/98 Linster [2000] ECR I-6917, paragraph 43; and Case C-523/07 A [2009] ECR I‑2805, paragraph 34).
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Par conséquent, seul le caractère manifestement inapproprié d’une mesure arrêtée en ce domaine, par rapport à l’objectif que l’institution compétente entend poursuivre, peut affecter la légalité d’une telle mesure [voir, par analogie, arrêt du 10 décembre 2002, British American Tobacco (Investments) et Imperial Tobacco, C‑491/01, EU:C:2002:741, point 123].
| 0 |
862,485 |
50
Moreover, with regard to judicial review of the conditions referred to in the previous paragraph, it must also be borne in mind that the EU legislature must be allowed a broad discretion when it is called upon to legislate in an area which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. The lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in relation to the objective which the competent institutions are seeking to pursue (see, to that effect, in the sphere of the protection of health, judgments of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, paragraph 48, and of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 52; see also, to that effect, with regard to EU environmental policy, judgments of 15 December 2005, Greece v Commission, C‑86/03, EU:C:2005:769, paragraphs 87 and 88, and of 21 December 2016, Associazione Italia Nostra Onlus, C‑444/15, EU:C:2016:978, paragraph 46).
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17 IN THOSE PROCEDURAL CIRCUMSTANCES IT MUST BE HELD THAT THE TWO ACTIONS HAVE THE SAME SUBJECT-MATTER, FOR THAT CONCEPT CANNOT BE RESTRICTED SO AS TO MEAN TWO CLAIMS WHICH ARE ENTIRELY IDENTICAL .
| 0 |
862,486 |
73
On the other hand, if the conditions set out in the previous paragraph are not satisfied, the connection with the territory of the first Member State is weaker, so that another justification for the taxation is necessary (see, to that effect, judgments of 15 September 2005, Commission v Denmark, C‑464/02, EU:C:2005:546, paragraph 79, and of 26 April 2012, van Putten, C‑578/10 to C‑580/10, EU:C:2012:246, paragraph 47, and order of 27 June 2006, van de Coevering, C‑242/05, EU:C:2006:430, 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 |
862,487 |
80. The Court has jurisdiction to provide the national court with all the criteria for the interpretation of European Union law which may enable it to assess whether the provisions of the ESM Treaty are compatible with European Union law (see, to that effect, Case C‑489/09 Vandoorne [2011] ECR I‑225, paragraph 25 and case‑law cited).
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88. Consequently, the seventh ground of appeal must be rejected as ineffective.
The eighth ground of appeal
Arguments of the parties
| 0 |
862,488 |
20
The Court confirmed that case-law after the entry into force of the Charter (see, to that effect, judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 34).
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48. That said, it cannot however be excluded that even in such circumstances, and in particular when several producers were using, on the market, identical or similar signs for identical or similar products capable of being confused with the sign for which registration is sought, the applicant’s registration of the sign may be in pursuit of a legitimate objective.
| 0 |
862,489 |
32. In that context, the Verwaltungsgerichtshof Baden-Württemberg decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. On Articles 2, 3 and 7 of [Directive 2004/38]:
(a) Does “family member” include, in particular in the light of Articles 7 and 24 of the [Charter of Fundamental Rights (“the Charter”)] and Article 8 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, “the ECHR”)], on an extended interpretation of Article 2(2)(d) of Directive 2004/38, a parent who is a third-country national, has parental responsibility for a child who is a Union citizen entitled to freedom of movement, and is not maintained by that child?
(b) If so, does Directive 2004/38 apply to that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, on an extended interpretation of Article 3(1) of the directive, even where there is no “accompanying” or “joining” with respect to the Member State of origin of the child who is a Union citizen and has moved away?
(c) If so, does it follow that that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, has a right of residence for more than three months in the Member State of origin of the child who is a Union citizen, on an extended interpretation of Article 7(2) of Directive 2004/38, at least as long as parental responsibility subsists and is actually exercised?
2. On Article 6(1) TEU in conjunction with the Charter:
(a) (i) Is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter simply where the subject‑matter of the dispute depends on a national law (or part of a law) which inter alia – but not only – transposed directives?
(ii) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter simply because the claimant is possibly entitled to a right of residence under Union law and could accordingly, under the first sentence of Paragraph 5(2) of the FreizügG/EU, claim a residence card for a family member of a Union citizen which has its legal basis in the first sentence of Article 10(1) of [Directive 2004/38]?
(iii) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter, in accordance with the case‑law deriving from Case C‑260/89 ERT [1991] ECR I‑2925, paragraphs 41 to 45, where a Member State restricts the right of residence of the father who is a third-country national with parental responsibility for a Union citizen who is a minor and resides predominantly with her mother in another Member State of the Union because of the mother’s employment?
(b) (i) If the Charter is applicable, can a right of residence under European Union law for the father who is a third-country national be derived directly from Article 24(3) of the Charter, at least as long as he has and actually exercises parental responsibility for his child who is a Union citizen, even if the child resides predominantly in another Member State of the Union?
(ii) If not, does it follow from the freedom of movement of the child who is a Union citizen under Article 45(1) of the Charter, possibly in conjunction with Article 24(3) of the Charter, that the father who is a third-country national has a right of residence under European Union law, at least as long as he has and actually exercises parental responsibility for his child who is a Union citizen, so that in particular the freedom of movement of the child who is a Union citizen is not deprived of all practical effect?
3. On Article 6(3) TEU in conjunction with the general principles of European Union law:
(a) Can the “unwritten” fundamental rights of the European Union developed in the Court’s case‑law from Case 29/69 Stauder [1969] ECR 419, paragraph 7, up to, for example, Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 75, be applied in full even if the Charter is not applicable in the specific case; in other words, do the fundamental rights which continue to apply as general principles of Union law under Article 6(3) TEU stand autonomously and independently alongside the new fundamental rights laid down in the Charter in accordance with Article 6(1) TEU?
(b) If so, can a right of residence under European Union law for the purpose of the effective exercise of parental responsibility be inferred from the general principles of Union law, in particular in the light of the right to respect for family life under Article 8 of the ECHR, for a father, who is a third-country national, of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation?
4. On Article 21(1) TFEU in conjunction with Article 8 of the ECHR:
If Article 6(1) or (3) TEU does not lead to a right of residence under European Union law for the claimant, can, in accordance with Case C‑200/02 Zhu and Chen [2004] ECR I‑9925, paragraphs 45 to 47, a right of residence under European Union law for the purpose of the effective exercise of parental responsibility be inferred, under Article 21(1) TFEU, possibly in the light of Article 8 of the ECHR, from the freedom of movement enjoyed by a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation, for the father, who is a third-country national, in the Member State of origin of the child who is a Union citizen?
5. On Article 10 of [Directive 2004/38]:
If a right of residence under European Union law is taken to exist, is a parent who is a third-country national in the claimant’s situation entitled to the issue of a “residence card for a family member of a Union citizen”, possibly in accordance with the first sentence of Article 10(1) of the directive?’
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41. As regards the principle of equivalence, it must be observed at the outset that the application for payment of an employee’s outstanding remuneration from the Fund and an application by such a worker to his insolvent employer are not the same. That is apparent inter alia from Article 4 of Directive 80/987 which gives Member States the option of limiting the obligation to pay of guarantee institutions.
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862,490 |
30. First, concerning the purpose of those two Community measures, the first and second recitals of the mutual assistance directive and the third recital of the administrative cooperation regulation show that their aim is to combat tax evasion and avoidance and to allow Member States to determine exactly the amount of tax to levy (see, by analogy, Case C‑420/98 W.N. [2000] ECR I‑2847, paragraphs 15 and 22, and, concerning Council Regulation (EC) No 1798/2003 of 7 October 2003 on administrative cooperation in the field of value added tax and repealing Regulation (EEC) No 218/92 (OJ 2003 L 264, p. 1), Case C‑533/03 Commission v Council [2006] ECR I‑1025, paragraphs 49 and 52).
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9 It should be pointed out in this connection that, under the procedure for the clearance of accounts, the Commission is required to audit the accounts submitted by a Member State for a given financial year. That procedure is governed by the principle according to which only expenditure incurred in conformity with the Community rules is to be charged to the Community budget (Case C-55/91 Italy v Commission [1993] ECR I-4813, paragraph 67).
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862,491 |
48. Under the third paragraph of Article 49 of that Statute, the Community institutions do not have to show any interest in order to bring an appeal against a judgment of the Court of First Instance ( Commission v Anic Partecipazioni, cited above, paragraph 171).
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Toutefois, il convient de rappeler que l’appréciation, notamment, des éléments de preuve opérée par le Tribunal ne constitue pas, sous réserve du cas de leur dénaturation, une question de droit soumise, comme telle, au contrôle de la Cour dans le cadre d’un pourvoi (voir, en ce sens, arrêt du 18 décembre 2008, Les Éditions Albert René/OHMI, C‑16/06 P, EU:C:2008:739, point 68).
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862,492 |
26. Thus, in connection with such proceedings, the Court has held that Directive 93/13 must be interpreted as precluding legislation of a Member State which does not allow the court before which an application for an order for payment has been brought to assess of its own motion, in limine litis or at any other stage during the proceedings, even though it already has the legal and factual elements necessary for that task available to it, whether a term concerning interest on late payments contained in a contract concluded between a seller or supplier and a consumer is unfair, in the case where that consumer has not lodged an objection (see Banco Español de Crédito , EU:C:2012:349, paragraph 57).
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45. Cette appréciation globale implique une certaine interdépendance entre les facteurs pris en compte. Ainsi, un faible degré de similitude entre les produits ou services couverts peut être compensé par un degré élevé de similitude entre les marques, et inversement. Par conséquent, il convient d’interpréter la notion de similitude en relation avec le risque de confusion dont l’appréciation, quant à elle, dépend notamment de la connaissance de la marque antérieure sur le marché et du degré de similitude entre les marques en conflit ainsi qu’entre les produits ou services désignés (voir, en ce sens, arrêts Canon, précité, point 17, Llyod Schuhfabrik Meyer, précité, point 19, et du 15 mars 2007, T.I.M.E. ART/Devinlec et OHMI, C‑171/06 P, point 35).
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862,493 |
33. Secondly, it should be borne in mind that Regulation No 44/2001 pursues an objective of legal certainty which consists in strengthening the legal protection of persons established in the European Union, by enabling the claimant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued (see, inter alia, Case C-533/07 Falco Privatstiftung and Rabitsch [2009] ECR I-3327, paragraph 22 and the case-law cited, and Case C-327/10 Hypoteční banka [2011] ECR I-11543, paragraph 44).
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17 However, a Member State whose authorities have granted aid contrary to the procedural rules laid down in Article 93 may not rely on the legitimate expectations of recipients in order to justify a failure to comply with the obligation to take the steps necessary to implement a Commission decision instructing it to recover the aid . If it could do so, Articles 92 and 93 of the Treaty would be set at naught, since national authorities would thus be able to rely on their own unlawful conduct in order to deprive decisions taken by the Commission under provisions of the Treaty of their effectiveness .
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862,494 |
51. Furthermore, the derogations provided for in Articles 296 EC and 297 EC must, in accordance with settled case-law in respect of derogations from fundamental freedoms (see, inter alia, Case C‑503/03 Commission v Spain [2006] ECR I‑1097, paragraph 45; Case C‑490/04 Commission v Germany [2007] ECR I‑6095, paragraph 86; and Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraph 50) be interpreted strictly.
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17. As regards the term ‘supply of services’, it is clear from Article 6(1) of the Sixth Directive that it covers any transaction not constituting a supply of goods within the meaning of Article 5 of that directive.
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862,495 |
31. In fact, the Court has already held that it follows from the very wording of Articles 378(1) and 379(2) of the implementing regulation that notification by the office of departure to the principal of the time-limit by which the proof requested must be furnished is mandatory and must precede recovery of the customs debt (see, to that effect, Lensing & Brockhausen , paragraph 29; Honeywell Aerospace , paragraph 24; and Case C-44/06 Gerlach [2007] ECR I-2071, paragraph 33).
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16
If the total or partial non-payment of the purchase price occurs without there being a cancellation or refusal of the contract, the purchaser remains liable for the agreed price and the seller, even though no longer proprietor of the goods, in principle continues to have the right to receive payment, which he can rely on in legal proceedings. Since it is conceivable, however, that such a debt will become definitively irrecoverable, the EU legislature intended to leave it to each Member State to decide whether the situation of non-payment of the purchase price which, of itself, unlike cancellation or refusal of the contract, does not restore the parties to their original situation, leads to an entitlement to have the taxable amount reduced accordingly, under conditions to be determined by the Member State concerned, or whether such a reduction is not to be allowed in that situation (judgment of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 25).
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862,496 |
37 It must further be observed that, where the Commission, instead of rejecting all the expenditure affected by the infringement, has endeavoured to establish the financial impact of the unlawful action by means of calculations based on an assessment of what the situation on the relevant market would have been if the infringement had not occurred, the burden of proving that those calculations are not correct rests on the Member State (Case 347/85, cited above, paragraph 15).
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112. In order for the storage by a referencing service provider to come within the scope of Article 14 of Directive 2000/31, it is further necessary that the conduct of that service provider should be limited to that of an ‘intermediary service provider’ within the meaning intended by the legislature in the context of Section 4 of that directive.
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862,497 |
40
Such a purely formal provision does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is capable of achieving the objective pursued and is necessary for that purpose. That provision therefore carries a real risk that it will result in abusive use of that type of contract and, accordingly, is not compatible with the objective of the framework agreement and the requirement that it have practical effect (see, to that effect, judgments of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraphs 98 and 100 and the case-law cited; of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 29, and of 13 March 2014, Márquez Samohano, C‑190/13, EU:C:2014:146, paragraph 47).
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45. However, regard being had to Recital 16 in the preamble to the REACH Regulation, it must be stated that the Community legislature established, as the main purpose of the obligation to register laid down in Article 6(3) thereof, the first of those three objectives, namely to ensure a high level of protection of human health and the environment.
| 0 |
862,498 |
51. That interpretation is supported by the Court’s settled case-law, which states that among the transactions which do come within the scope of the Sixth Directive, but are exempted from VAT under Article 13B(d)(5) of that directive, are transactions in shares, interests in companies or associations, debentures and other securities that consist in obtaining income on a continuing basis from activities which go beyond the compass of the simple acquisition and sale of securities (see, inter alia, Kretztechnik , paragraph 20). As has been stated in paragraph 31 of this judgment, that also applies to transactions carried out as part of a commercial share-dealing activity or in order to secure a direct or indirect involvement in the management of the companies in which the holding has been acquired, or where they constitute the direct, permanent and necessary extension of the taxable activity (see, inter alia, Harnas & Helm , paragraph 16 and the case-law there cited, and EDM , paragraph 59).
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36. The relevant determining criterion is how the benefit concerned is actually financed (see, to that effect, Jauch , paragraphs 32 and 33). The Court must consider whether that financing comes directly or indirectly from social contributions or from public resources.
| 0 |
862,499 |
71. Moreover, it is settled case-law that, where the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see, inter alia, Joined Cases C-514/07 P, C‑528/07 P and C-532/07 P Sweden and Others v API and Commission [2010] ECR I-8533, paragraph 116, and Case C-335/09 P Poland v Commission [2012] ECR I-0000, paragraph 27).
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93. In that respect, it is also the national court’s responsibility to take into account the fact that Mr T. was ordered to pay a fine and not sentenced to a term of imprisonment and to ascertain whether, in view of that fact and, if appropriate, of the nature of the acts he committed, there were ‘compelling reasons of national security or public order’, within the meaning of Article 24(1) of Directive 2004/83, justifying the revocation of Mr T.’s residence permit.
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