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28. So far as concerns the first plea of inadmissibility, it must be recalled that, in accordance with settled case-law, the letter of formal notice sent by the Commission to the Member State and then the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to be able to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the action brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (Case C-186/06 Commission v Spain [2007] ECR I-12093, paragraph 15, and Case C-535/07 Commission v Austria [2010] ECR I-9483, paragraph 41).
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27 The fourth recital in the preamble to Regulation No 714/89 highlights the need to reinforce the measures for preventing and penalizing irregularities and frauds.
| 0 |
862,501 |
56. Even though the General Court referred on a number of occasions, in particular in paragraphs 95 and 103 of the judgment under appeal, to whether the Commission had ‘manifestly’ gone beyond the bounds of its margin of assessment, such references did not prevent the General Court from carrying out the full and unrestricted review, in law and in fact, required of it (see, to that effect, inter alia, Chalkor v Commission , paragraph 82).
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52 In that respect, if it were lawful for a Member State, which, in breach of the birds directive, has failed to classify as an SPA a site which should have been so classified, to rely on Article 6(3) and (4) of the habitats directive, that State might enjoy such an advantage.
| 0 |
862,502 |
37. It appears from the foregoing considerations that, as regards Regulation No 222/2011 and Implementing Regulation No 293/2011, since the appellants do not have the status of producers of sugar and their legal situation is not directly affected by those regulations, those regulations are not of direct concern to them within the meaning of the final limb of the fourth paragraph of Article 263 TFEU (see judgments in Glencore Grain v Commission , C-404/96 P, EU:C:1998:196, paragraph 41; Front national v Parliament , C-486/01 P, EU:C:2004:394, paragraph 34; Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission , C-445/07 P and C-455/07 P, EU:C:2009:529, paragraph 45; and Stichting Woonpunt and Others v Commission , C-132/12 P, EU:C:2014:100, paragraph 68).
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36 IT MUST BE CONCLUDED FROM THIS THAT UNTIL MORE APPROPRIATE METHODS HAVE BEEN WORKED OUT, THE COMMUNITY RULES IN THE WINE SECTOR DO NOT PROHIBIT MEMBER STATES FROM USING THE 100* METHOD TO MEASURE THE DRY EXTRACT OF WINE IN ORDER TO APPLY A PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION BASED ON THE PROPORTION OF ALCOHOL TO DRY EXTRACT .
| 0 |
862,503 |
87. Such a restriction can be justified, under EU law, only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate objective of the national provisions (see De Cuyper , paragraph 40; Tas-Hagen and Tas , paragraph 33; Zablocka-Weyhermüller , paragraph 37; and Rüffler , paragraph 74).
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82. La directive 1999/31 définit les critères et les conditions de l’obligation de mise en décharge des déchets et impose notamment aux États membres d’exiger l’obtention d’une autorisation pour l’exploitation d’une décharge.
| 0 |
862,504 |
8. In those circumstances, the Unabhängiger Verwaltungssenat des Landes Oberösterreich, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Do the rule of law considerations inherent in Article 16 of the Charter and/or the considerations of transparency inherent in Article 49 TFEU preclude a national provision such as point 3 of Paragraph 10(2) of the ApG at issue in the [main proceedings], pursuant to which the condition whether there is a need to establish a new public pharmacy is not specified at least in essence in the legislation itself but its elaboration is left in considerable respects to the national courts, since it cannot be excluded that a scheme of that kind affords a significant competitive advantage to interested parties from Austria, individually and as a whole, over nationals from other Member States?
2. If Question 1 is answered in the negative: Does Article 49 TFEU preclude a national provision such as point 3 of Paragraph 10(2) of the ApG, which in relation to the crucial condition whether a need is deemed to exist sets a rigid threshold of 5 500 people without allowing for any departure from that general rule, since de facto under a scheme of that kind it does not appear possible to ensure (without more) the achievement in a consistent manner of the legislative objective pursued, in terms of paragraphs 98 to 101 of the [judgment in Joined Cases C‑570/07 and C‑571/07 Blanco Pérez and Chao Gómez [2010] ECR I‑4629]?
3. If Question 2 is also answered in the negative: Do Article 49 TFEU and/or Article 47 of the Charter preclude a provision such as point 3 of Paragraph 10(2) of the ApG which has been interpreted, as result of the case-law of the highest national courts concerning the verification of the existence of a need, to include additional detailed criteria – such as whether an application has priority in time, the blocking effect of an existing application in relation to subsequent applications, the two-year lockout period following the rejection of an application, criteria for determining the number of ‘permanent inhabitants’ and ‘incoming users’ and for allocating the customer base in the event of an overlap between the four-kilometre radius surrounding each of two or more pharmacies, etc. – since, as a result, it is not possible to ensure that, as a general rule, the provision will be applied in a manner that is foreseeable and calculable and within a reasonable period and, hence, the legislative provision cannot be considered appropriate, in fact, to ensure the achievement in a consistent manner of the legislative objective pursued (see paragraphs 98 to 101 and 114 to 125 of the Court’s judgment in Blanco Pérez ) and/or the provision of an adequate pharmaceutical service must be regarded as de facto not ensured and/or discrimination must be presumed as between applicants from Austria amongst themselves or between them and applicants from other Member States?’
Admissibility
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29. In those circumstances, it is not appropriate to extend the examination of the question referred to determine whether the products in dispute imported by Steinel Vertrieb fall within the scope of the CFL‑i Regulations on the basis of grounds not referred to by the national court, namely the assessment made by the national authorities of the subheadings of the CN code in which the product at issue in the main proceedings are to be classed (see, by analogy, Hoesch Metals and Alloys , paragraph 60). Consequently, it must be inferred from the order for reference that the national court refrained from asking the Court to rule on that issue (see, to that effect, Case C‑30/93 AC‑ATEL Electronics Vetriebs [1994] ECR I‑2305, paragraph 19).
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862,505 |
24. With regard to the requirement that there be a legal transfer, there is settled case-law to the effect that the scope of Article 1(1) of Directive 2001/23 cannot be appraised solely on the basis of a textual interpretation (see, with regard to Article 1(1) of Directive 77/187, Case 135/83 Abels [1985] ECR 469, paragraphs 11 to 13, and Case C-29/91 Redmond Stich ting [1992] ECR I-3189, paragraph 10). On account of the differences between the language versions of Directive 2001/23 and the divergences between the laws of the Member States with regard to the concept of legal transfer, the Court has given that concept a sufficiently flexible interpretation in keeping with the objective of Directive 2001/23, which is to safeguard employees in the event of a transfer of their undertaking ( Redmond Stichting , paragraph 11, and Joined Cases C-171/94 and C-172/94 Merckx and Neuhuys [1996] ECR I-1253, paragraph 28).
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28. On account of the differences between the language versions of the Directive and the divergences between the laws of the Member States with regard to the concept of legal transfer, the Court has given that concept a sufficiently flexible interpretation in keeping with the objective of the Directive, which is to safeguard employees in the event of a transfer of their undertaking, and has held that the Directive is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person who is responsible for carrying on the business and who incurs the obligations of an employer towards employees of the undertaking (see, inter alia , the judgment in Redmond Stichting , cited above, at paragraphs 10 and 11).
| 1 |
862,506 |
27
Nonetheless, in situations covered by EU law, the national rules concerned must have due regard to the latter (see judgment of 2 March 2010 in Rottmann, C‑135/08, EU:C:2010:104, paragraph 41 and the case-law cited).
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38. Or, la République italienne a reconnu n’avoir demandé l’inscription au passif de New Interline de la créance relative à la récupération de l’aide en cause que le 31 octobre 2008, c’est-à-dire bien après le 18 août 2008, date d’expiration du délai de quatre mois imparti à cet État membre à l’article 3, paragraphe 2, de la décision 2008/697 pour s’acquitter de l’obligation de récupération immédiate et effective.
| 0 |
862,507 |
66. In so far as the appellants claim, in the alternative, that the Court should reduce the amount of the fine imposed on them, it should be recalled that the sanction for a breach, by a court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy. Accordingly, a claim for compensation for the damage caused by the failure on the part of the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself ( Gascogne Sack Deutschland v Commission EU:C:2013:768, paragraphs 86 to 90; Kendrion v Commission EU:C:2013:771, paragraphs 91 to 95; and Groupe Gascogne v Commission EU:C:2013:770, paragraphs 80 to 84).
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30 Also, it is clear from the order of the Court of 4 February 2000 in Case C-17/98 Emesa Sugar v Aruba [2000] ECR I-0000, paragraph 18) that it is precisely in deference to Article 6 of the EHRC and to the very purpose of every individual's right to adversarial proceedings and to a fair hearing within the meaning of that provision that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be re-opened, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties.
| 0 |
862,508 |
142. Moreover, in order to establish a failure to fulfil obligations within the meaning of Article 6(2) of the Habitats Directive, the Commission does not have to prove a cause and effect relationship between a mining operation and significant disturbance to the capercaillie. Since Article 6(2) and (3) of the Habitats Directive are designed to ensure the same level of protection, it is sufficient for the Commission to establish the existence of a probability or risk that that operation might cause significant disturbances for that species (see, to that effect, Commission v France , paragraph 32, and Case C‑2/10 Azienda Agro-Zootecnica Franchini and Eolica di Altamura [2011] ECR I‑0000, paragraph 41).
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34. However, according to the case-law, a provision which is capable of restricting a fundamental freedom guaranteed by the Treaty, such as the free movement of goods, can be properly justified only if it is appropriate for securing the attainment of that objective and does not go beyond what is necessary in order to attain it (see, inter alia, Case C‑14/02 ATRAL [2003] ECR I‑4431, paragraph 64; Case C‑254/05 Commission v Belgium [2007] ECR I‑4269, paragraph 33; judgment of 13 March 2008 in Case C‑227/06 Commission v Belgium , paragraph 61; and Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraph 48).
| 0 |
862,509 |
35. The conclusion that, in order to satisfy the objective of the First Yaoundé Convention, it is unnecessary to interpret Article 14 in a manner that is broader than its wording strictly permits, so as to confer on that provision a scope that is comparable to that of the second paragraph of Article 90 EC, is also supported by the Court’s interpretation of provisions that are virtually identical to Article 14 in disputes relating to agreements aimed at establishing a system of free trade. The Court has held that those provisions imposed on the contracting parties a rule against discrimination in matters of taxation, which is dependent only on a finding that the products affected by a particular system of taxation are of like nature (see Case 104/81 Kupferberg [1982] ECR 3641, paragraph 26, and Joined Cases C‑114/95 and C‑115/95 Texaco and Olieselskabet Danmark [1997] ECR I‑4263, paragraph 31).
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12 CONSEQUENTLY , A TRANSFER OF AN UNDERTAKING , BUSINESS OR PART OF A BUSINESS DOES NOT OCCUR MERELY BECAUSE ITS ASSETS ARE DISPOSED OF . INSTEAD IT IS NECESSARY TO CONSIDER , IN A CASE SUCH AS THE PRESENT , WHETHER THE BUSINESS WAS DISPOSED OF AS A GOING CONCERN , AS WOULD BE INDICATED , INTER ALIA , BY THE FACT THAT ITS OPERATION WAS ACTUALLY CONTINUED OR RESUMED BY THE NEW EMPLOYER , WITH THE SAME OR SIMILAR ACTIVITIES .
| 0 |
862,510 |
41. Application of a provision by analogy, with regard to an economic operator, is possible where the legal rules applicable, on the one hand, are very similar to those which it is sought to have applied by analogy and, on the other hand, contain an omission which is incompatible with a general principle of Community law and which can be remedied by application by analogy of those other rules (Case 165/84 Krohn [1985] ECR 3997, paragraph 14).
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29. That being so, the trade mark proprietor cannot oppose that use of the sign, identical with its mark, if that use is not liable to cause detriment to any of the functions of that mark ( L’Oréal and Others , paragraph 60, and Google France and Google , paragraph 76).
| 0 |
862,511 |
50. Fourthly, whilst it is true that, in paragraph 81 of the judgment in Commission v Germany , the Court upheld the complaints relied on by the Commission and alleging infringement of Article 63(1) TFEU, that fact cannot, in the absence of an express contrary indication, be treated as amounting to a finding by the Court that Paragraph 4(3) of the VW Law constitutes, on its own, a restriction on the free movement of capital.
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24. The Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 39; Case C‑466/04 Acereda Herrera [2006] ECR I‑5341, paragraph 48; and Cipolla and Others , paragraph 25).
| 0 |
862,512 |
26
In the first place, as regards the first to third, fifth and sixth questions, it must be borne in mind that, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 26 July 2017, Persidera, C‑112/16, EU:C:2017:597, paragraph 23 and the case-law cited).
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13 Legislation, such as the Waarborgwet, which requires articles of precious metal imported from other Member States, in which they are lawfully traded and hallmarked in accordance with the legislation of those States, to be given an additional hallmark in the importing Member State, renders the imports more difficult and costly. As the German Government has observed, it requires action by an importer, the payment of fees to the supervising authority and leads to delays in marketing the products, which increase the costs of those products.
| 0 |
862,513 |
56. Moreover, as regards the application of Article 13B(d)(6) of the Sixth Directive to transactions effected between undertakings for collective investment and their participants, any other interpretation of that provision, exempting from VAT the management of undertakings for collective investment constituted under the law of contract or under trust law, and not those constituted under statute, would be contrary to the principle of fiscal neutrality on which, in particular, the common system of VAT established by the Sixth Directive is based, and which precludes economic operators carrying out the same transactions being treated differently in relation to the levying of VAT (see Case C-382/02 Cimber Air [2004] ECR I‑8379, paragraphs 23 and 24, and Case C‑280/04 Jyske Finans [2005] ECR I‑0000, paragraph 39).
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74 It can be inferred from the foregoing that the risk to which the quality of the product finally offered to consumers is exposed is greater where it has been transported and bottled outside the region of production than when those operations have taken place within the region.
| 0 |
862,514 |
50. However, according to the case-law of the Court, the expression ‘paid annual leave’ in Article 7(1) of Directive 2003/88 means that, for the duration of annual leave within the meaning of that directive, remuneration must be maintained and that, in other words, workers must receive their normal remuneration for that period of rest (judgment in Schultz-Hoff and Others , C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 58).
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58. However, according to the case-law of the Court, the expression ‘paid annual leave’ in Article 7(1) of Directive 2003/88 means that, for the duration of annual leave within the meaning of that directive, remuneration must be maintained and that, in other words, workers must receive their normal remuneration for that period of rest (see Robinson-Steele and Others , paragraph 50).
| 1 |
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27
By contrast, the principle that abusive practices are prohibited, as applied in the sphere of VAT by the case-law stemming from the judgment in Halifax, is not a rule established by a directive, but is based on the settled case-law, cited in paragraphs 68 and 69 of that judgment, that, first, EU law cannot be relied on for abusive or fraudulent ends (see, inter alia, judgments of 12 May 1998, Kefalas and Others, C‑367/96, EU:C:1998:222, paragraph 20; of 23 March 2000, Diamantis, C‑373/97, EU:C:2000:150, paragraph 33; and of 3 March 2005, Fini H, C‑32/03, EU:C:2005:128, paragraph 32) and, secondly, the application of EU legislation cannot be extended to cover abusive practices by economic operators (see to that effect, inter alia, judgments of 11 October 1977, Cremer, 125/76, EU:C:1977:148, paragraph 21; of 3 March 1993, General Milk Products, C‑8/92, EU:C:1993:82, paragraph 21; and of 14 December 2000, Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 51).
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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 |
862,516 |
46. Second, the principle of fiscal neutrality, on which the common system of VAT established by the Sixth Directive is based, precludes economic operators carrying out the same transactions from being treated differently in relation to the levying of VAT. That principle does not require the transactions to be identical. According to settled case-law that principle precludes, in particular, treating similar goods and supplies of services, which are thus in competition with each other, differently for VAT purposes (see Case C-109/02 Commission v Germany [2003] ECR I-12691, paragraph 20; Joined Cases C‑453/02 and C‑462/02 Linneweber and Akritidis [2005] ECR I‑1131, paragraph 24; Kingscrest, Associates and Montecello , paragraph 54; Case C‑106/05 L.u.p . [2006] ECR I‑5123, paragraph 32; Turn- und Sportunion Waldburg , paragraph 33; and Solleveld and van den Hout-van Eijnsbergen , paragraph 39).
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51. If the application is accepted, they re-examine the declaration and assess whether the declarant’s claims are well founded, in the light of the facts notified.
| 0 |
862,517 |
16. It should be noted, in this regard, that, in the present case, the Commission referred expressly, in recital 580 to the decision at issue, to the presumption that a parent company in fact exercises decisive influence over a subsidiary in which it owns all the shares, before stating, in recital 584 to that decision, that that approach must be applied on a case-by-case basis for each undertaking concerned (see Kendrion v Commission EU:C:2013:771, paragraph 28).
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39. For the sake of completeness, it must be noted that, as recitals 3, 21 and 24 in the preamble to Regulation No 1782/2003 make clear, environmental protection forms part of the objectives of the single payment scheme. The Court has also held that environmental protection, one of the essential objectives of the European Union, must be regarded as forming part of the common agricultural policy (Case C-428/07 Horvath [2009] ECR I-6355, paragraph 29). Moreover, Article 2 point (1) of Regulation No 796/2004 expressly provides that arable land, and consequently agricultural areas pursuant to Article 2(a) of Regulation No 795/2004, is land maintained in good agricultural and environmental condition within the meaning of Article 5 of Regulation No 1782/2003.
| 0 |
862,518 |
44. That interpretation is also supported by the fact that, as it was concluded by management and labour represented by joint trade bodies, the Framework Agreement is not intended to regulate social security matters or impose obligations on national social security organisations, since they were not party to that agreement (see, by analogy, Case C‑537/07 Gómez-Limón Sánchez-Camacho [2009] ECR I‑0000, paragraphs 48 to 50).
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34
Therefore, setting maximum amounts for vitamins and minerals which may be used in the manufacture of food supplements where, in the absence of a proven risk to human health, upper safe limits have not been established for those nutrients after such a scientific assessment, does not satisfy that requirement (see judgment of 29 April 2010, Solgar Vitamin’s France and Others, C‑446/08, EU:C:2010:233, paragraph 66).
| 0 |
862,519 |
61. As Article 12 EC applies independently only to situations governed by Community law in regard to which the Treaty lays down no specific rules prohibiting discrimination (see inter alia Case C-379/92 Peralta [1994] ECR I-3453, paragraph 18), there is no need, in the light of the foregoing observations, to consider the question raised in the light of that provision.
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28 ATTENDU QU ' EN RELATION AVEC LES ECHANGES AVEC LES PAYS TIERS , LE TRAITE NE CONTIENT PAS DE DISPOSITIONS EXPLICITES ANALOGUES A CELLES QUI , DANS LES ECHANGES ENTRE LES ETATS MEMBRES , INTERDISENT LES TAXES D ' EFFET EQUIVALANT AUX DROITS DE DOUANE ;
| 0 |
862,520 |
45. The Court has held that copyright within the meaning of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation (see, to that effect, with regard to Article 2(a) of Directive 2001/29, Infopaq International , paragraphs 33 to 37).
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16 Second, in reply to a letter from the Court Registry asking the Tribunal des Affaires de Sécurité Sociale, Evry, whether in those circumstances it intended to maintain its request for a preliminary ruling, the President of that court stated that under the national rules of procedure it had no power to withdraw a question duly referred to the Court for a preliminary ruling.
| 0 |
862,521 |
38. It is clear from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 58, and General Química and Others v Commission , paragraph 37).
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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 |
862,522 |
39. As regards, in the first place, the situation of the claimants in the main proceedings, it should be pointed out that freedom of establishment, which Article 43 EC grants to Community nationals and which includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 48 EC, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Community, the right to exercise their activity in the Member State concerned through a subsidiary, a branch or an agency (see, in particular, Case C-307/97 Saint-Gobain ZN [1999] ECR I-6161, paragraph 35; Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 30; and Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 41).
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25. Dès lors, les premier et deuxième moyens avancés par la requérante ne sauraient emporter l’annulation de l’ordonnance attaquée, puisque le dispositif de ladite ordonnance rejetant le recours demeurerait fondé, s’ils étaient accueillis, pour les motifs de droit énoncés aux points 21 à 24 du présent arrêt (voir, en ce sens, arrêts du 9 juin 1992, Lestelle/Commission, C‑30/91 P, Rec. p. I‑3755, point 28; du 13 juillet 2000, Salzgitter/Commission, C‑210/98 P, Rec. p. I‑5843, point 58, ainsi que du 10 décembre 2002, Commission/Camar et Tico, C‑312/00 P, Rec. p. I‑11355, point 57).
| 0 |
862,523 |
25. It must be recalled in that regard that Regulation No 1049/2001 does not allow for the possibility of derogating from the time-limits laid down in Articles 7 and 8 thereof and that those time-limits are determinative as regards the conduct of the procedure for access to the documents held by the institutions concerned, which aims to achieve the swift and straightforward processing of applications for access to documents (see, to that effect, judgment in Internationaler Hilfsfonds v Commission , C‑362/08 P, EU:C:2010:40, paragraph 53).
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41
According to settled case-law, the fundamental principle of VAT neutrality requires deduction of input tax to be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements (judgments of 12 July 2012, EMS-Bulgaria Transport, C‑284/11, EU:C:2012:458, paragraph 62 and the case-law cited, and of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 45).
| 0 |
862,524 |
42. Moreover, the principle of legal certainty precludes directives from being able by themselves to create obligations for individuals. Directives cannot therefore be relied upon per se by the Member State as against individuals (see, inter alia, Case 14/86 Pretore di Salò [1987] ECR 2545, paragraphs 19 and 20; Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraphs 9 and 13; Case C‑168/95 Arcaro [1996] ECR I‑4705, paragraphs 36 and 37; and Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others [2005] ECR I‑3565, paragraphs 73 and 74).
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Or, il résulte d’une jurisprudence bien établie que l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé (voir, notamment, arrêts du 4 septembre 2014, Commission/Grèce, C-351/13, non publié, EU:C:2014:2150, point 20, et du 5 février 2015, Commission/Belgique, C-317/14, EU:C:2015:63, point 34).
| 0 |
862,525 |
51. Article 11(6) of [Regulation No 1/2003] states that the initiation by the Commission of proceedings for the adoption of a decision under [Regulation No 1/2003] shall relieve all [competition authorities of Member States] of their competence to apply Articles 81 [EC] and 82 [EC]. This means that once the Commission has opened proceedings, [national competition authorities] cannot act under the same legal basis against the same agreement(s) or practice(s) by the same undertaking(s) on the same relevant geographic and product market.
...
53. Two situations can arise. First, where the Commission is the first competition authority to initiate proceedings in a case for the adoption of a decision under [Regulation No 1/2003], national competition authorities may no longer deal with the case. Article 11(6) of [Regulation No 1/2003] provides that once the Commission has initiated proceedings, [national competition authorities] can no longer start their own procedure with a view to applying Articles 81 [EC] and 82 [EC] to the same agreement(s) or practice(s) by the same undertaking(s) on the same relevant geographic and product market.
...’
National law
16. The relevant provision of Czech law is Article 3 of the Law on the Protection of Competition. That provision applied until 30 June 2001 in the version of Law No 63/1991 Sb. (Zákon č. 63/1991 Sb., o ochraně hospodářské soutěže), as amended, and, as from 1 July 2001, in the version of Law No 143/2001 Sb. (Zákon č. 143/2001 Sb., o ochraně hospodářské soutěže).
17. According to Article 3(1) of the Law on the Protection of Competition, in the version in force until 30 June 2001:
‘1. All agreements between competitors, all decisions of associations of undertakings and all concerted practices of competitors ... which have the effect or may have the effect of distorting competition on the product market are prohibited and void, save for contrary provision by this Law or by a special law or in the event of exemption granted by the ministry of Competition ...’.
18. The prohibition of agreements and practices restricting competition, set out in Article 3(1) of Law No 143/2001 Sb., which replaced Law No 63/1991 Sb. on 1 July 2001, remained essentially unchanged.
Facts, administrative procedure and the dispute in the main proceedings
19. This case concerns an international cartel on the market for gas insulated switchgear (‘GIS’) in which a number of European and Japanese undertakings in the electrical engineering sector participated for different periods between 1988 and 2004. Both the Commission and the Úřad pro ochranu hospodářské soutěže dealt with certain aspects of this case in 2006 and 2007 and each imposed fines on the undertakings concerned.
The administrative procedure at EU level
20. According to the information contained in the order for reference, on 30 September 2004 the Commission sent the Úřad pro ochranu hospodářské soutěže a letter informing it that it intended to initiate a proceeding concerning a cartel on the GIS market. The Commission indicated in that letter that the anti-competitive conduct under examination had taken place, in large part, before 1 May 2004 and that, taking account of the difficulty posed by the imposition of a fine as regards only the final days of that conduct (from 1 May to 11 May 2004), the procedure before it would concern only the activities of that cartel carried out in the territory of the European Union before the enlargement of the latter on 1 May 2004. According to the Commission, it was thus unlikely that it would initiate a proceeding concerning the Czech Republic.
21. On 20 April 2006, the Commission initiated proceedings for the imposition of fines on the basis of Article 81 EC and Article 53 of the EEA Agreement in conjunction with Regulation No 1/2003. Those proceedings, which had been preceded by a leniency application and investigations carried out at the premises of several members of the cartel in 2004, were directed against a total of 20 legal persons, including the Toshiba Corporation and the other applicants in the main proceedings.
22. In points 2 and 3 of the grounds of the Commission Decision of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas Insulated Switchgear) (‘the Commission Decision’), which terminated the proceedings, the Commission states that, from 15 April 1988 until 11 May 2004, the aforementioned cartel committed a single and continuous infringement of Article 81 EC and, as from 1 January 1994, also of Article 53 of the EEA Agreement, covering the territory of the EEA and in which the individual members of the cartel participated for differing periods of time. In section 6.6.2 of that decision, the Commission identified the termination date of that cartel as 11 May 2004, by reference to the date on which the last working meeting of which it was aware had taken place, which ended when the representatives of Siemens AG informed the other members of the said cartel that the Commission had carried out unannounced inspections on that day.
23. According to the findings in points 2, 3, 218 and 248 of the grounds of the Commission’s decision, this was a complex cartel operated worldwide (except in the USA and Canada), including in the European Union and the European Economic Area, under which the participating undertakings, inter alia, exchanged sensitive market information, shared markets, fixed prices and terminated collaboration with non-cartel members.
24. Apart from one undertaking, ABB Ltd, which benefited from the Commission’s leniency programme, all the parties to the proceedings, including all the applicants in the main proceedings, were ordered to pay fines of a total amount of more that EUR 750 million. The highest individual fine, amounting to more than EUR 396 million, was imposed on Siemens AG.
The administrative procedure at national level
25. On 2 August 2006, the Úřad pro ochranu hospodářské soutěže initiated a proceeding for infringement of the Law on the Protection of Competition, concerning the members of the cartel at issue in the main proceedings. On 9 February 2007, it adopted a first decision against which the applicants in the main proceedings formed an internal administrative action. Following that action, by decision of 26 April 2007, the President of the Úřad pro ochranu hospodářské soutěže amended that first decision.
26. In that decision of 26 April 2007, the said authority held that ABB Management Services Ltd (holder of the rights of ABB Power Technologies Management Ltd), ABB Switzerland Ltd, ABB Ltd, Alstom, Areva T & D SA, Fuji Electric Holdings Co. Ltd, Fuji Electric Systems Co. Ltd, Hitachi Ltd, Hitachi Europe Ltd, Mitsubishi Electric Corp., Toshiba Corporation, Schneider Electric SA, Siemens AG, Siemens AG Österreich (holder of the rights of VA Technologie AG and VA Tech T & D GmbH), VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens Transmission and Distribution Ltd (formerly VA Tech Transmission & Distribution Ltd) and Nuova Magrini Galileo SpA had participated in a cartel in the territory of the Czech Republic. By so doing, those competitor undertakings had, during the period up to 30 June 2001, infringed the prohibition set out in Article 3(1) of the Law on the Protection of Competition, in the version thereof arising from Law No 63/1991 Sb., as amended, and, during the period from 1 July 2001 to 3 March 2004, infringed the prohibition appearing in Article 3(1) of that law, in the version thereof arising from Law No 143/2001 Sb. Those undertakings thus infringed the Law on the Protection of Competition during the period up to 3 March 2004.
27. To determine the date on which the infringement ceased, the Úřad pro ochranu hospodářské soutěže used the last date on which proof of the existence of the infringement could be brought, namely 3 March 2004, on which date the last email communication demonstrating the existence of links between the participants in the cartel at issue in the main proceedings had been registered. According to the information given at the hearing by the agent of the Czech Republic and by the representative of the Úřad pro ochranu hospodářské soutěže, for the purposes of determining the end of a cartel, Czech competition law uses assessment criteria different from those used by the Commission.
28. Apart from one undertaking, which benefited from leniency measures laid down by national law, all the undertakings concerned by the proceeding brought at national level had fines imposed upon them.
The procedure before the Czech courts
29. The applicants in the main proceedings brought an action against the decision of the Úřad pro ochranu hospodářské soutěže before the Krajský soud v Brně (Regional Court, Brno). They argued inter alia that that authority had determined the duration of the cartel at issue in the main proceedings in an erroneous manner, and that it had knowingly placed the cessation of the latter at a date prior to the accession of the Czech Republic to the Union, in order to justify the application of the Law on the Protection of Competition. According to those applicants, it follows from Article 11(6) of Regulation No 1/2003 that the said authority no longer had the power to implement a proceeding at national level, since the Commission had already initiated a proceeding at European level in the same case. They concluded that the proceeding brought at national level infringed the ne bis in idem principle, prohibiting the cumulation of penalties.
30. By judgment of 25 June 2008, the Krajský soud v Brně annulled the decision of the Úřad pro ochranu hospodářské soutěže of 26 April 2007, and the initial decision, adopted on 9 February 2007.
31. The Krajský soud v Brně took the view that the conduct of the applicants in the main proceedings constituted a single and continuous infringement and based its reasoning on the Commission’s decision to conclude that the Úřad pro ochranu hospodářské soutěže had wrongly concluded that the infringement had ended on 3 March 2004. The latter continued until 11 May 2004, that is to say after the accession of the Czech Republic to the Union and after the entry into force of Regulation No 1/2003. It should therefore be regarded as having been committed under the ‘new law’, namely Article 81 EC and Regulation No 1/2003. The Commission having already initiated a proceeding under Article 81 EC against the cartel of ‘worldwide scope’ at issue in the main proceedings and imposed penalties, the new proceeding opened in the same case infringed the ne bis in idem principle. The Krajský soud v Brně considered, moreover, that the Úřad pro ochranu hospodářské soutěže no longer had the power, under the first sentence of Article 11(6) of Regulation No 1/2003, to deal with the case at issue on the basis of Article 81 EC.
32. The Úřad pro ochranu hospodářské soutěže appealed on a point of law against the judgment of the Krajský soud v Brně before the Nejvyšší správní soud (Supreme Administrative Court). It considers that it still has the power to prosecute the applicants in the main proceedings by reason of their conduct prior to the date of accession of the Czech Republic to the Union, since, until that date, the Commission was not able to prosecute any of the infringements concerning that State. According to that authority, the fact of penalising a cartel of worldwide scope in the context of different competences does not constitute an infringement of the ne bis in idem principle. The said authority argues that the Commission and itself have examined territorially different consequences of that cartel. Moreover, the case-law of the Court of Justice, arising from the judgment in Case 14/68 Wilhelm and Others [1969] ECR 1, authorises the parallel application of Union and national competition law.
33. By judgment of 10 April 2009, the Nejvyšší správní soud set aside the judgment of the Krajský soud v Brně.
34. The Nejvyšší správní soud took the view that the Krajský soud v Brně had wrongly held that participation of the undertakings concerned in the cartel constituted a continuous infringement. According to the former court, the existence of two distinct infringements should be recognised, the date of the accession of the Czech Republic to the Union having constituted a pivotal date in that regard by reason of the modification of competences which followed. In particular, until that accession, the cartel practised on Czech territory fell exclusively within national jurisdiction and could be prosecuted only under national law. The Nejvyšší správní soud thus referred the case back to the Krajský soud v Brně for a new ruling.
35. The Krajský soud v Brně observes that, even if, under Article 110(3) of Law 150/2002 Sb., establishing the code of administrative procedure (Zákon č. 150/2002 Sb., soudní řád správní), it is required to follow the legal analysis adopted by the Nejvyšší správní soud, it nevertheless appears to it to be necessary to clarify certain points of Union law concerning, first, the accession of the Czech Republic to the Union on 1 May 2004 and, secondly, the entry into force of Regulation No 1/2003.
36. In those circumstances, the Krajský soud v Brně decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Must Article 81 EC (now Article 101 TFEU) and [Regulation No 1/2003] be interpreted to mean that that legislation must be applied (in proceedings brought after 1 May 2004) to the whole period of operation of a cartel, which commenced in the Czech Republic before that state’s entry to the European Union (that is, before 1 May 2004) and continued and ended after the Czech Republic’s entry to the European Union?
(2) Must Article 11(6) of Regulation No 1/2003 in conjunction with Article 3(1) thereof and recital 17 in the preamble thereto, point 51 of the Commission Notice ..., the principle ne bis in idem under [the Charter], and the general principles of European law be interpreted as meaning that if the Commission brings proceedings after 1 May 2004 for infringement of Article 81 EC and makes a decision in that case:
(a) the competition authorities of the Member States are automatically relieved of their competence to deal with that conduct from that time onwards?
(b) the competition authorities of the Member States are relieved of their competence to apply to that conduct the provisions of domestic law containing parallel legislation to Article 81 EC ...?’
The questions referred for a preliminary ruling
Preliminary observations
37. The wording of the questions submitted by the referring court calls for the following observations. In the first question, which seeks to determine the law applicable to the effects on Czech territory of the cartel at issue in the main proceedings, reference is made to a proceeding brought after the accession of the Czech Republic to the Union, on 1 May 2004, in relation to a cartel which, in the territory of that State, commenced before that date, continued and did not cease until after that date. The second question concerns the impact of the adoption, by the Commission, of a decision penalising anti-competitive conduct on the possibility of a national competition authority initiating or pursuing a proceeding concerning that same conduct (‘those same facts’).
38. That formulation of the questions referred is explained by the fact that the referring court considers it necessary to regard the cartel on the market for GIS at issue in the main proceedings as a single and continuous line of conduct which did not cease until after the accession of the Czech Republic to the Union, and to assess that anti-competitive conduct, as a whole, having regard to the legislation in force on the day it ended, namely Article 81 EC and Regulation No 1/2003.
39. In that context, the referring court, like the applicants in the main proceedings, bases its argument on the Commission’s decision and considers that the latter penalised the conduct of the companies concerned in relation likewise to the Czech Republic, so that the Úřad pro ochranu hospodářské soutěže no longer had the power, after the accession of the Czech Republic to the Union and the entry into force of Regulation No 1/2003, to prosecute and penalise the effects of the cartel on that territory, even in relation to a period prior to that accession.
40. However, it is indicated in the order for reference that, on 30 September 2004, the Commission informed the Úřad pro ochranu hospodářské soutěže that it envisaged initiating a proceeding concerning the cartel on the GIS market at issue in the main proceedings, stating that the anti-competitive conduct examined had taken place, to a great extent, before 1 May 2004 and that the procedure brought by it would concern only the activities of the cartel carried out in the territory of the Union, as it existed before the enlargement of the latter on 1 May 2004.
41. In addition, in its written observations, the Commission has stated that the interpretation of the scope of its decision, which appears in point 29 of the order for reference, is inaccurate and that its decision does not penalise the effects of the collusive conduct which materialised in Czech territory before 1 May 2004.
42. Finally, it is apparent from the information provided by the referring court itself that the decision of the Úřad pro ochranu hospodářské soutěže at issue in the main proceedings takes into account only the anti-competitive effects produced, in Czech territory, by the cartel between the undertakings concerned, before 1 May 2004. That decision thus concerns only the period before the accession of the Czech Republic to the Union.
43. It is therefore in the light of those preliminary considerations that the questions referred are to be examined.
The first question
44. By its first question, the referring court asks, in essence, whether the provisions of Article 81 EC and Article 3(1) of Regulation No 1/2003 must be interpreted as meaning that, in the context of a proceeding initiated after 1 May 2004, they can be applied to a cartel which produced effects in the territory of a Member State which acceded to the Union on 1 May 2004 during periods prior to that date.
45. In that regard, it should be remembered that account must be taken, as to the interpretation and application of Article 81 EC and Regulation No 1/2003, of the particular situation of a State, such as the Czech Republic, which became a member of the Union with effect from 1 May 2004 (see, in relation to Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition, 1969(II), p. 412), Case C‑366/05 Optimus — Telecomunicações [2007] ECR I‑4985, paragraph 25, and Case C‑441/08 Elektrownia Pątnów II [2009] ECR I‑10799, paragraph 30).
46. Pursuant to Article 2 of the Act of Accession, as from the date of accession, that is to say from 1 May 2004, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before accession are binding on the new Member States and apply in those States under the conditions laid down in those Treaties and in the Act of Accession.
47. According to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force (Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, paragraph 9; Joined Cases C‑121/91 and C‑122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I‑3873, paragraph 22; Case C‑201/04 Molenbergnatie [2006] ECR I‑2049, paragraph 31; and Case C‑450/06 Varec [2008] ECR I‑581, paragraph 27).
48. Regulation No 1/2003 contains procedural and substantive rules.
49. As the Advocate General has pointed out in point 43 of her Opinion, the said regulation, like Article 81 EC, contains substantive provisions which govern the assessment by the competition authorities of agreements between undertakings and therefore constitute substantive rules of EU law.
50. Such substantive rules cannot in principle be applied retroactively, irrespective of whether such application might produce favourable or unfavourable effects for the persons concerned. The principle of legal certainty requires that any factual situation should normally, in the absence of any express contrary provision, be examined in the light of the legal rules existing at the time when the situation obtained (see, to that effect, Case C‑120/08 Bavaria [2010] ECR I‑13393, paragraphs 40 and 41).
51. According to settled case-law, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of Community law must be interpreted as applying to situations existing before their entry into force only in so far as it follows clearly from their terms, objectives or general scheme that such effect must be given to them (see Case C‑369/09 P ISD Polska and Others v Commission [2011] ECR I‑2011, paragraph 98 and 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.
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14 Il convient, en pareille hypothèse, pour déterminer la base juridique appropriée, d'apprécier si les mesures considérées se rattachent principalement à un domaine d'action, les effets sur d'autres politiques ne présentant qu'un caractère accessoire, ou si les deux aspects sont également essentiels. Dans le premier cas, le recours à une seule base juridique suffit (arrêts du 4 octobre 1991, Parlement/Conseil, 70/88, Rec. p. I-4529, point 17, et du 26 mars 1996, Parlement/Conseil, C-271/94, Rec. p. I-1689, points 32 et 33); dans l'autre, il est insuffisant (arrêts du 30 mai 1989, Commission/Conseil, 242/87, Rec. p. 1425, points 33 à 37, et du 7 mars 1996, Parlement/Conseil, C-360/93, Rec. p. I-1195, point 30) et l'institution est tenue d'adopter l'acte sur le fondement des deux dispositions qui fondent sa compétence (arrêt du 27 septembre 1988, Commission/Conseil, 165/87, Rec. p. 5545, points 6 à 13). Un tel cumul est toutefois exclu lorsque les procédures prévues pour l'une et l'autre base juridique sont incompatibles (arrêt du 11 juin 1991, Commission/Conseil, C-300/89, Rec. p. I-2867, points 17 à 21).
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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.
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54. The purpose of that progressive rather than immediate introduction of those payments in the new Member States was not to slow down the restructuring of the agricultural sector and not to create significant disparities in income or social imbalances by the granting of aid not proportionate to the income level of farmers and the general population (see, to that effect, judgments in Bábolna , C‑115/10, EU:C:2011:376, paragraph 34, and Poland v Council , C‑273/04, EU:C:2007:622, paragraph 69).
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11 It follows that, in principle, compensation paid to a worker on termination of the employment relationship falls within the definition of pay contained in Article 119 of the Treaty .
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59. That is true, in particular, of a measure under which a distinction is drawn on the basis of residence, in that that requirement is liable to operate mainly to the detriment of nationals of other Member States, since non-residents are in the majority of cases foreigners (see, inter alia, Case C-224/97 Ciola [1999] ECR I‑2517, paragraph 14; Case C‑388/01 Commission v Italy , paragraph 14; Case C‑103/08 Gottwald [2009] ECR I-9117, paragraph 28; and Case C-73/08 Bressol and Others [2010] ECR I-0000, paragraph 45).
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16 THIS DOES NOT ALTER THE FACT THAT THE PROHIBITION OF DISCRIMINATION LAID DOWN IN THE PROVISION CITED IS MERELY A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE OF EQUALITY WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW .
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50 In relation to the German Government's argument concerning the simplification of the payment of VAT, it should be recalled that, according to settled case-law, although the introductory sentence of Article 13(A)(1) of the Sixth Directive states that Member States are to lay down the conditions for exemptions in order to ensure the correct and straightforward application of the exemptions and to prevent any possible evasion, avoidance or abuse, those conditions cannot affect the definition of the subject-matter of the exemptions envisaged (see, in particular, Case C-124/96 Commission v Spain [1998] ECR I-2501, paragraphs 11 and 12, and Case C-76/99 Commission v France, cited above, paragraph 26).
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23 Care insurance gives entitlement to full or partial direct payment of certain expenditure entailed by the insured person's reliance on care such as care provided in the home, in specialised centres or hospitals, the purchase of equipment required by insured persons, the carrying out of work in the home and the payment of monthly financial aid allowing the insured to choose the method of assistance they prefer and, for example, to remunerate in one form or another the third party assisting them. The care insurance scheme provides cover, furthermore, against the risks of accident, old age and invalidity for some of those third parties.
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42. Secondly, only Articles 6 and 11 of Directive 97/13 deal with the charges applicable to undertakings which hold authorisations in the telecommunications services sector (see, to that effect, Albacom and Infostrada , cited above, paragraph 26). As to individual licences, Article 11(1) of that directive provides that the fees imposed by the Member States on undertakings which hold those licences seek only to cover the administration costs generated by the work involved in implementing those licences ( Albacom and Infostrada , paragraph 25, and Joined Cases C-392/04 and C-422/04 i-21 Germany [2006] ECR I-8559, paragraph 28). The same consideration applies to the fees imposed by the Member States for general authorisations pursuant to Article 6 of Directive 97/13, which provides in addition for only one other form of financial contribution, namely contributions to the provision of universal service.
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19. That is, furthermore, use in relation to the advertiser’s goods or services, even where the sign selected as keyword does not appear in the advertisement itself ( Google France and Googl e , paragraphs 65 to 73).
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41 First of all, the Commission has not denied that the applicant is individually concerned. Having regard to the circumstances of the case, the Court considers that only the question whether the contested decision is of direct concern to the applicant need be examined.
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22 Finally, having regard to the arguments advanced by the Federal Republic of Germany based on Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising ( Official Journal 1984 L 250, p . 17 ), it must be added that, since the prohibition at issue has been found not to be justified by imperative requirements relating to consumer protection or fair trading, it can also find no basis in the aforementioned directive . That directive confines itself to a partial harmonization of the national laws on misleading advertising by establishing, firstly, minimum objective criteria for determining whether advertising is misleading, and, secondly, minimum requirements for the means of affording protection against such advertising .
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25. As regards the first plea of inadmissibility, it is sufficient to state that it is clear from the Court's case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia , Case C-174/01 Commission v Luxembourg [2002] ECR I-11171, paragraph 18). Given that the reasoned opinion was dated 2 August 1999 and that there was a two-month period within which to comply with it, the fact that the regimes introduced by Royal Decrees Nos 40/1998 and 552/1998, as amended, expired on 17 February 2001 and 5 October 2000 respectively does not affect the question whether an infringement existed at the end of that period.
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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.
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28 As the Court emphasised at paragraph 73 of its judgment in SDC, trade in securities involves acts which alter the legal and financial situation as between the parties and are comparable to those involved in the case of a transfer or a payment. The supply of a mere physical, technical or administrative service, which does not alter the legal or financial situation would not, therefore, appear to be covered by the exemption laid down in Article 13B(d)(5) of the Sixth Directive.
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49 Therefore, whilst the Commission was entitled to examine the effect on the transport sector of the grant of the contested aid to non-transport companies, it could not simply treat those companies as if they were operators in the transport sector.
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49. The Court expressed a similar view when called upon to rule on whether the exception provided for in Article 57(1) EC was applicable to restrictions on the movement of capital which existed in the legal order of a Member State on 31 December 1993. While the Court accepted that any national measure adopted after that date is not, by that fact alone, automatically excluded from the derogation laid down in Article 57(1), it understood that possibility to encompass provisions which, in substance, are identical to previous legislation or which are limited to reducing or eliminating an obstacle to the exercise of Community rights and freedoms in the earlier legislation, whilst excluding provisions based on an approach which differs from that of the previous law and establishes new procedures (see, to that effect, Test Claimants in the FII Group Litigation , paragraph 192, and Holböck , paragraph 41). In so doing, the Court did not have in contemplation provisions which, whilst in substance identical to legislation which existed on 31 December 1993, reintroduced an obstacle to the free movement of capital which, following the repeal of the earlier legislation, no longer existed.
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17 It follows from the foregoing that in order to be a "judgment" for the purposes of the Convention the decision must emanate from a judicial body of a Contracting State deciding on its own authority on the issues between the parties.
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50
Such an obstacle is permissible only if it relates to situations which are not objectively comparable or if it is justified by overriding reasons in the public interest (judgment of 17 July 2014, Nordea Bank Danmark, C‑48/13, EU:C:2014:2087, paragraph 23 and the case-law cited).
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92. It follows that the Treaty provisions on freedom of establishment do not preclude a situation in which the entitlement to a tax credit laid down in a DTC concluded by a Member State with another Member State for companies resident in the second State which receive dividends from a company resident in the first State does not extend to companies resident in a third Member State with which the first State has concluded a DTC which does not provide for such an entitlement.
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40. Furthermore, since Article 30 EC provides for an exception, to be interpreted strictly, to the rule of free movement of goods within the Community, it is for the national authorities which invoke it to show in each case, in the light of national nutritional habits and in the light of the results of international scientific research, that their rules are necessary to give effective protection to the interests referred to in that provision and, in particular, that the marketing of the products in question poses a real risk to public health (see to that effect Sandoz , paragraph 22, Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 40, and Commission v Denmark , paragraph 46).
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125. The Court of Justice has consistently held that, for the purposes of European Union competition law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed. That concept must be understood as covering an economic unit, even if, from a legal perspective, that unit is made up of a number of natural or legal persons (see, inter alia, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission , paragraph 43).
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82. However, such rights cannot, as such, be regarded as having a direct and specific connection with the exercise of official authority in the absence, on the part of the providers concerned, of official powers or of powers of coercion falling outside the scope of the general law for the purposes of ensuring that those rights are observed, which, as the parties agree, is within the competence of the police and judicial authorities (see, to that effect, Commission v Italy , paragraph 39, and Commission v Portugal , paragraph 44).
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44. In addition, as the Commission has pointed out, without being contradicted by the Portuguese Republic, the private vehicle inspection bodies, in connection with their activities, have no power of coercion, the right to impose penalties for failure to comply with the rules on vehicle inspection belonging to the police and judicial authorities.
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74. Such a restriction can be justified, under Community law, only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate objective of the national provisions (Case C‑406/04 De Cuyper [2006] ECR I‑6947, paragraph 40; Tas‑Hagen and Tas , paragraph 33; and Zablocka‑Weyhermüller , paragraph 37).
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64. As Advocate General Mischo observed in point 43 of his Opinion in the Met-Trans and Sagpol case, it may be considered that it was by inadvertence that the legislature inserted a reference to Article 455(1) in the first subparagraph of Article 454(3) of the implementing regulation, and that the reference should have been to Article 455(2) of that regulation.
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44. In those circumstances, there is no need to rule on whether Article 137(2) EC also provides an appropriate legal basis for the measures envisaged by the contested directive as regards self-employed drivers (see also Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraph 98, and, a contrario , Case C-300/89 Commission v Council ( ‘Titanium dioxide’ ) [1991] ECR I‑2867, paragraphs 18 to 21).
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21. In that regard, it should be noted that, according to the Court’s settled case-law, in the absence of harmonisation of EU legislation in the field of penalties applicable where conditions laid down by arrangements under such legislation are not complied with, Member States are empowered to choose the penalties which seem to them to be appropriate. They must, however, exercise that power in accordance with EU law and its general principles, and consequently in accordance with the principle of proportionality (see judgments in Ntionik and Pikoulas , C‑430/05, EU:C:2007:410, paragraph 53, and Urbán , C‑210/10, EU:C:2012:64, paragraph 23).
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4 In those judgments, the Court held that a producer who had voluntarily ceased production for a certain period could not legitimately expect to be able to resume production under the same conditions as those which previously applied and not to be subject to any rules of market or structural policy adopted in the meantime (Mulder, paragraph 23; von Deetzen, paragraph 12). The Court added, however, that where such a producer had been encouraged by a Community measure to suspend marketing for a limited period in the general interest and against payment of a premium he might legitimately expect not to be subject, upon the expiry of his undertaking, to restrictions which specifically affected him precisely because he availed himself of the possibilities offered by the Community provisions (Mulder, paragraph 24; von Deetzen, paragraph 13).
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69
That interpretation is also consistent with the broad logic of Directive 2003/87 and the objectives which it pursues.
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52
As a preliminary matter and in view of the publication of the Corrigendum of 12 March 2015 according to which the date for the repeal of Directives 91/440 and 2001/14 is now set at 17 June 2015, it should be noted that, on the date taken into account in the assessment of the merits of the present action (judgment of 8 April 2014, Commission v Hungary, C‑288/12, EU:C:2014:237, paragraph 29), namely, 21 August 2013, the end of the period laid down in the reasoned opinion, Directives 91/440 and 2001/14 were applicable ratione temporis.
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42. Ensuite, ces deux dispositions poursuivent des objectifs différents.
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32. On the other hand, in so far as the question referred by the national court, as reformulated in paragraph 21 of this judgment, seeks an interpretation of Articles 81 EC to 89 EC, it should be recalled 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 Centro Europa 7 , paragraph 57 and the case-law cited). Those requirements are of particular importance in the area of competition, where the factual and legal situations are often complex (see to that effect, inter alia, Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzo and Others [1993] ECR I‑393, paragraph 7; Case C‑238/05 Asnef-Equifax and Administración del Estado [2006] ECR I‑11125, paragraph 23; and Case C‑250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I‑11135, paragraph 20).
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20. In that regard, according to the Court’s case-law, the need for precision with regard to the factual and legislative context applies in particular in the area of competition, which is characterised by complex factual and legal situations (see Case C-176/96 Lehtonen and Castors Braine [2000] ECR I‑2681, paragraph 22; Viacom Outdoor , paragraph 23; and Case C-238/05 Asnef-Equifax and Administración del Estado [2006] ECR I‑11125, paragraph 23).
| 1 |
862,543 |
39. Just like other expressions which define taxable transactions for the purposes of the Sixth Directive (see, in particular, Joined Cases C‑354/03, C‑355/03 and C‑484/03 Optigen and Others [2006] ECR I‑483, paragraph 44, and Joined Cases C‑439/04 and C‑440/04 Kittel and Recolta Recycling [2006] ECR I‑6161, paragraph 41), the meanings of ‘intra-Community supply’ and ‘intra-Community acquisition’ are objective in nature and apply without regard to the purpose or results of the transactions concerned ( Teleos and Others , paragraph 38).
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25. À cet égard, selon une jurisprudence constante de la Cour, si une réglementation nationale telle que celle en cause au principal, – qui est indistinctement applicable aux ressortissants italiens et aux ressortissants des autres États membres – n’est, en règle générale, susceptible de relever des dispositions relatives aux libertés fondamentales garanties par le traité que dans la mesure où elle s’applique à des situations ayant un lien avec les échanges entre les États membres, il ne saurait nullement être exclu que des ressortissants établis dans des États membres autres que la République italienne aient été ou soient intéressés à exploiter des parapharmacies dans ce dernier État membre (voir, en ce sens, arrêt du 1 er juin 2010, Blanco Pérez et Chao Gómez, C‑570/07 et C‑571/07, Rec. p. I‑4629, point 40 ainsi que jurisprudence citée).
| 0 |
862,544 |
16 It is also settled case-law of the Court of Justice that a Member State cannot rely on provisions, practices or circumstances existing in its internal legal order to justify its failure to comply with the obligations and time-limits laid down by Community directives, nor therefore the late or incomplete transposition of a directive (see, in particular, Case C-303/92 Commission v Netherlands [1993] ECR I-4739, paragraph 9, and Case C-139/97 Commission v Italy [1998] ECR I-605, paragraphs 9 to 11).
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31. It is permissible, however, for legislation to lay down objective criteria, at national or local level, indicating that there is certain cross-border interest. Such criteria could be, inter alia, the fact that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out. The possibility of such an interest may also be excluded in a case, for example, where the economic interest at stake in the contract in question is very modest (see, to that effect, Case C‑231/03 Coname [2005] ECR I‑7287, paragraph 20). However, in certain cases, account must be taken of the fact that the borders straddle conurbations which are situated in the territory of different Member States and that, in those circumstances, even low-value contracts may be of certain cross-border interest.
| 0 |
862,545 |
30. Accordingly, a ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal is based are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be dismissed as inadmissible (see, to that effect, Case C‑194/99 P Thyssen Stahl v Commission EU:C:2003:527, paragraphs 105 and 106, and Case C‑520/09 P Arkema v Commission EU:C:2011:619, paragraph 61 and the case-law cited). The Court has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the order under appeal which may be vitiated by an error of law must be dismissed as clearly inadmissible (see the order in Case C‑107/07 P Weber v Commission EU:C:2007:741, paragraphs 26 to 28).
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46. Where a company established in a Member State (such as Stanley) pursues the activity of collecting bets through the intermediary of an organisation of agencies established in another Member State (such as the defendants in the main proceedings), any restrictions on the activities of those agencies constitute obstacles to the freedom of establishment.
| 0 |
862,546 |
62. The Court has, it is true, acknowledged that, in order to maintain the link between the deductibility of premiums and the taxation of sums due from insurers in the implementation of insurance contracts, tax deductibility of the premiums is subject to the condition that they be paid in that State ( Bachmann , cited above, paragraphs 21 to 23; Case C-300/90 Commission v Belgium [1992] ECR I-305, paragraphs 14 to 20).
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49. The legislation of a Member State which indiscriminately prevents taxpayers who have acquired holdings in non-resident investment funds from adducing evidence which satisfies criteria, in particular those of presentation, other than those laid down for national investments by the first Member State, goes beyond what is necessary to ensure effective fiscal supervision (see, to that effect, judgment in Meilicke and Others , EU:C:2011:438, paragraph 43).
| 0 |
862,547 |
29. Accordingly, when there is a risk that rights under the legislation of the Member State of residence will overlap with rights under the legislation of the Member State of employment, Article 73 of that regulation must be considered in the light of the rules against overlapping in the latter and in Regulation No 574/72, in particular Article 76 of Regulation No 1408/71 and Article 10 of Regulation No 574/72 (see judgments in Schwemmer , EU:C:2010:605, paragraph 43, and Wiering , EU:C:2014:300, paragraph 42).
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101. That limitation also appears in Protocol No 2, which is clearly linked to the Barber judgment, since it refers inter alia to the same date, 17 May 1990. While extending the limitation to all benefits payable under occupational social security schemes and incorporating it into the Treaty, Protocol No 2 essentially adopted the same interpretation of the Barber judgment as did the Ten Oever judgment (Case C-57/93 Vroege [1994] ECR I-4541, paragraph 41).
| 0 |
862,548 |
61. Dans ces conditions, un État membre qui s’abstient de constater le droit des Communautés sur les ressources propres et de mettre le montant correspondant à la disposition de la Commission, sans que l’une des conditions prévues à l’article 17, paragraphe 2, des règlements n os 1552/89 et 1150/2000 soit remplie, manque à ses obligations en vertu du droit communautaire (voir arrêts du 18 octobre 2007, Commission/Danemark, C‑19/05, Rec. p. I‑8597, point 32, et du 8 juillet 2010, Commission/Italie, C‑334/08, précité, point 51).
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27 NEVERTHELESS , THE EXERCISE OF THAT RIGHT MIGHT FALL WITHIN THE AMBIT OF THE PROHIBITIONS CONTAINED IN THE TREATY IF IT WERE TO MANIFEST ITSELF AS THE SUBJECT , THE MEANS , OR THE CONSEQUENCE OF A RESTRICTIVE PRACTICE .
| 0 |
862,549 |
45
As regards the Explanatory Notes to the HS, it must be added that, in spite of the fact that they lack binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (see judgments in Kloosterboer Services, C‑173/08, EU:C:2009:382, paragraph 25, and Agroferm, C‑568/11, EU:C:2013:407, paragraph 28). The same applies to the Explanatory Notes to the CN (see, to that effect, judgments in Develop Dr. Eisbein, C‑35/93, EU:C:1994:252, paragraph 21, and British Sky Broadcasting Group and Pace, C‑288/09 and C‑289/09, EU:C:2011:248, paragraph 92).
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27
As the Advocate General observed, in paragraphs 55 and 57 of his Opinion, Article 76(2) of Regulation No 207/2009 should be interpreted in the same way in relation to proof of the existence, validity and scope of protection of a trade mark since that provision contains a rule which applies horizontally within the scheme of that regulation, inasmuch as it applies irrespective of the nature of the proceedings concerned. It follows that Rule 50 of the Implementing Regulation cannot be interpreted as meaning that it extends the discretion of the Boards of Appeal to new evidence.
| 0 |
862,550 |
29. Thus, the Court has held that inheritances and gifts, which fall under heading XI of Annex I to Directive 88/361, entitled ‘Personal Capital Movements’, constitute movements of capital within the meaning of Article 63 TFEU, except in cases where their constituent elements are confined within a single Member State (see Case C‑450/09 Schröder [2011] ECR I‑2497, paragraph 26 and the case‑law cited). The same applies to ‘loans’ which fall within the same heading of Annex I to that directive.
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67. C’est cette particularité qui a amené la Commission à calculer séparément, pour chacune des deux sociétés en cause, ledit plafond sur la base du chiffre d’affaires tel qu’il a été réalisé au cours de l’exercice social qui a précédé l’adoption de la décision litigieuse.
| 0 |
862,551 |
11 In its judgment of 18 June 1991 in Case C-369/89 Piageme and Others [1991] ECR I-2971, the Court ruled that Articles 30 of the EEC Treaty and 14 of Directive 79/112 precluded a national law from requiring the exclusive use of a specific language for the labelling of foodstuffs, without allowing for the possibility of using another language easily understood by purchasers or of ensuring that the purchaser was informed by other measures.
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37. First, the undertaking receiving such compensation must actually have public service obligations to discharge, and the obligations must be clearly defined ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 89; Servizi Ausiliari Dottori Commercialisti , paragraph 62; and Essent Netwerk Noord and Others , paragraph 82).
| 0 |
862,552 |
39. Just like other expressions which define taxable transactions for the purposes of the Sixth Directive (see, in particular, Joined Cases C‑354/03, C‑355/03 and C‑484/03 Optigen and Others [2006] ECR I‑483, paragraph 44, and Joined Cases C‑439/04 and C‑440/04 Kittel and Recolta Recycling [2006] ECR I‑6161, paragraph 41), the meanings of ‘intra-Community supply’ and ‘intra-Community acquisition’ are objective in nature and apply without regard to the purpose or results of the transactions concerned ( Teleos and Others , paragraph 38).
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15 THE OBLIGATIONS ARISING FROM ARTICLE 95 OF THE TREATY DEVOLVE UPON STATES AS SUCH AND THE LIABILITY OF A MEMBER STATE UNDER ARTICLE 169 ARISES WHATEVER THE AGENCY OF THE STATE WHOSE ACTION OR INACTION IS THE CAUSE OF THE FAILURE TO FULFIL ITS OBLIGATIONS, EVEN IN THE CASE OF A CONSTITUTIONALLY INDEPENDENT INSTITUTION .
| 0 |
862,553 |
20 As far as the right to join an occupational scheme is concerned, it stated that there was no reason to suppose that those concerned could have been mistaken as to the applicability of Article 119. It has been clear since the judgment in Case 170/84 Bilka-Kaufhaus v Karin Weber von Hartz [1986] ECR 1607 that a breach of the rule of equal treatment as regards recognition of such a right is caught by Article 119 (Vroege, paragraphs 28 and 29 and Fisscher, paragraphs 25 and 26).
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86. Il est de jurisprudence constante que cette obligation de motivation répond au double objectif de permettre, d’une part, aux intéressés de connaître les justifications de la mesure prise afin de défendre leurs droits et, d’autre part, au juge de l’Union d’exercer son contrôle sur la légalité de la décision (voir arrêt du 10 mai 2012, Helena Rubinstein et L’Oréal/OHMI, C-100/11 P, non encore publié au Recueil, point 111).
| 0 |
862,554 |
89. It is apparent from the case-law of the Court of Justice that if a given operation or activity is not covered by the prohibition rule laid down in Article 81(1) EC, owing to its neutrality or positive effect in terms of competition, a restriction of the commercial autonomy of one or more of the participants in that operation or activity is not covered by that prohibition rule either if that restriction is objectively necessary to the implementation of that operation or that activity and proportionate to the objectives of one or the other (see to that effect, in particular, judgments in Remia and Others v Commission , 42/84, EU:C:1985:327, paragraphs 19 and 20; Pronuptia de Paris , 161/84, EU:C:1986:41, paragraphs 15 to 17; DLG , C‑250/92, EU:C:1994:413, paragraph 35, and Oude Luttikhuis and Others , C‑399/93, EU:C:1995:434, paragraphs 12 to 15).
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23 It follows from the Court' s judgment in Case 199/85 Commission v Italy [1987] ECR 1039, at paragraph 14, that the provisions of Article 9 of Directive 71/305, which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in connection with public works contracts, must be interpreted strictly and the burden of proving the actual existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances.
| 0 |
862,555 |
106 It is true that the Court of First Instance must, in principle, reply to the arguments presented in the course of the procedure and give reasons for a decision on the inadmissibility of an application so that the Court of Justice is able, in the context of an appeal, to exercise its power of review (see, to that effect, Case C-259/96 P Council v De Nil and Impens [1998] ECR I-2915, paragraph 32).
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13 ONCE THE COMMUNITY HAS , PURSUANT TO ARTICLE 40 OF THE TREATY , LEGISLATED FOR THE ESTABLISHMENT OF THE COMMON ORGANIZATION OF THE MARKET IN A GIVEN SECTOR , MEMBER STATES ARE UNDER AN OBLIGATION TO REFRAIN FROM TAKING ANY MEASURE WHICH MIGHT UNDERMINE OR CREATE EXCEPTIONS TO IT .
| 0 |
862,556 |
78. However, it also follows from the Court’s case-law that, where a Member State has chosen not to tax recipient companies established in its territory in respect of income of this kind, it cannot rely on the argument that there is a need to ensure a balanced allocation between the Member States of the power to tax in order to justify the taxation of recipient companies established in another Member State ( Amurta , paragraph 59, and Aberdeen Property Fininvest Alpha , paragraph 67).
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314. In the instant case it must be declared that the contested regulation cannot be considered to be an act directly attributable to the United Nations as an action of one of its subsidiary organs created under Chapter VII of the Charter of the United Nations or an action falling within the exercise of powers lawfully delegated by the Security Council pursuant to that chapter.
| 0 |
862,557 |
25. In that regard, it should be noted that Article 96 of the VAT Directive provides that the same rate of VAT, namely, the standard rate, is applicable to supplies of goods and services. As an exception to that principle, Article 98(1) of the VAT Directive gives the Member States the option of applying either one or two reduced rates of VAT. In accordance with the first subparagraph of Article 98(2), the reduced rates of VAT can apply only to supplies of goods and services in the categories set out in Annex III to the VAT Directive (judgment in K , C‑219/13, EU:C:2014:2207, paragraphs 21 and 22).
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57. In the first of those cases, as submitted by the Czech Government and is apparent from the case‑law cited at paragraph 45 above, if Italian domestic law precludes the application of the 1986 agreement and the collective agreements at issue in the main proceedings, the Working Time Directives cannot, in themselves, be relied on against individuals to ensure such application (see also, by analogy, Case 14/86 Pretore di Salò v X [1987] ECR 2545, paragraphs 19 and 20; Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others [2005] ECR I‑3565, paragraphs 73 and 74; and Case C‑321/05 Kofoed [2007] ECR I‑5795, paragraph 42 and the case‑law cited).
| 0 |
862,558 |
13 In considering the merits of that argument, it must be borne in mind that it is settled law (see, for example, the judgments in Case 188/73 Grassi v Council [1974] ECR 1099, paragraph 38, and Case C-343/87 Culin v Commission [1990] ECR I-225, paragraph 19) that although the appointing authority has wide discretion in comparing the candidates' merits and reports, especially with a view to the post to be filled, it must exercise it within the self-imposed limits set by the vacancy notice.
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65. Scrutiny of Article 3(2) of Regulation No 343/2003 shows that it grants Member States a discretionary power which forms an integral part of the Common European Asylum System provided for by the FEU Treaty and developed by the European Union legislature.
| 0 |
862,559 |
30
Secondly, it is apparent from the Court’s case-law that the principle that abusive practices are prohibited is applied to the rights and advantages provided for by EU law irrespective of whether those rights and advantages have their basis in the Treaties (see, so far as concerns the fundamental freedoms, inter alia judgments of 3 December 1974, van Binsbergen, 33/74, EU:C:1974:131, paragraph 13, and of 9 March 1999, Centros, C‑212/97, EU:C:1999:126, paragraph 24), in a regulation (judgments of 6 April 2006, Agip Petroli, C‑456/04, EU:C:2006:241, paragraphs 19 and 20, and of 13 March 2014, SICES and Others, C‑155/13, EU:C:2014:145, paragraphs 29 and 30) or in a directive (see, in relation to VAT, inter alia judgment of 3 March 2005, Fini H, C‑32/03, EU:C:2005:128, paragraph 32; judgment in Halifax, paragraphs 68 and 69; and judgment of 13 March 2014, FIRIN, C‑107/13, EU:C:2014:151, paragraph 40). It is thus apparent that that principle is not of the same nature as the rights and advantages to which it applies.
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48. It follows from the foregoing that any application of national legislation which excludes the management of special closed-ended investment funds from the exemption provided for by Article 13B(d)(6) of the Sixth Directive is contrary to the objective of that provision and to the principle of fiscal neutrality where those closed-ended funds are collective investment undertakings which allow investors to invest in securities and where those funds are in competition with funds exempt from VAT.
| 0 |
862,560 |
35. Having regard to the considerations set out in paragraphs 29 and 30 of this judgment, it is for the competent national court to establish revocation, if appropriate, linked in particular to such a failure, including in the context of proceedings seeking protection of the exclusive rights conferred by Article 5 of Directive 89/104, and which may have been brought late by the proprietor of the mark. If taking account of revocation for the purposes of Article 12(2) in infringement proceedings were solely a matter for the national laws of the Member States, the consequence for trade mark proprietors might be that protection would vary depending on the applicable law. The objective of ‘the same protection under the legal systems of all the Member States’ set out in the ninth recital in the preamble to the directive, where it is described as fundamental, would not be attained (see, on the subject of the onus of proving infringement of the proprietor’s exclusive rights, Case C-405/03 Class International [2005] ECR I-0000, paragraphs 73 and 74).
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98. Lors de l’examen de ces critères, il convient de tenir compte du fait que, en cas de litige sur l’existence d’une infraction aux règles de concurrence, l’exigence fondamentale de sécurité juridique dont doivent bénéficier les opérateurs économiques ainsi que l’objectif d’assurer que la concurrence n’est pas faussée dans le marché intérieur présentent un intérêt considérable non seulement pour le requérant lui-même et pour ses concurrents, mais également pour les tiers, en raison du grand nombre de personnes concernées et des intérêts financiers en jeu (voir, notamment, arrêt Der Grüne Punkt – Duales System Deutschland/Commission, précité, point 186 et la jurisprudence citée).
| 0 |
862,561 |
69. The case-law has also made it quite clear that a Member State may not apply a criminal penalty for failure to complete an administrative formality where such completion has been refused or rendered impossible by the Member State concerned, in infringement of Community law (see, to that effect, Case 5/83 Rienks [1983] ECR 4233, paragraphs 10 and 11).
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40. As regards the rules for application of the collective agreement, they cite, as justified grounds thus envisaged, events such as the serious illness or death of a child or of the other parent, and divorce. On the other hand, those rules do not, in principle, recognise a move to another place, the coming into existence of another employment relationship, or a new pregnancy as unforeseeable and justified grounds.
| 0 |
862,562 |
16. None the less, the referring court asks whether such an approach is compatible with the Community legal order and, in particular, with Article 29 of Directive 92/50, as interpreted by the Court of Justice in Joined Cases C‑226/04 and C‑228/04 La Cascina and Others [2006] ECR I‑1347, paragraphs 21 to 23. That provision, which constitutes an expression of the principle of ‘favor participationis’ – whereby as many undertakings as possible should take part in the tendering procedure – comprises, according to that judgment, an exhaustive list of the grounds for exclusion from participation in a tendering procedure for the award of a service contract. Those grounds do not include the situation of undertakings linked by a relationship of control or decisive influence.
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40 It should be borne in mind that the Court held, in paragraph 90 of the Belgium v Commission judgment cited above, that, despite the undeniable existence of difficulties, there was nothing to show that it was absolutely impossible for recovery of the aid in question to be carried out and that that was already the case when the Commission adopted Decision 97/239.
| 0 |
862,563 |
36. More particularly, it has already been held that the exception relating to ‘pay’ set out in Article 137(5) EC is explained by the fact that fixing the level of pay falls within the contractual freedom of the social partners at a national level and within the relevant competence of Member States. In those circumstances, as European Union law stood, it was decided to exclude determination of the level of wages from harmonisation under Article 136 EC et seq. (see Del Cerro Alonso , paragraphs 40 and 46, and Impact , paragraph 123).
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77. En effet, la réglementation litigieuse considère, en principe, les héritiers ou les donataires tant résidents que non-résidents comme assujettis aux fins de la perception de droits de succession ou de mutation sur des biens immeubles situés en Espagne. Partant, il n’existe entre un résident et un non-résident aucune différence de situation objective de nature à fonder une différence de traitement (voir, en ce sens, arrêt Schumacker, EU:C:1995:31, point 37).
| 0 |
862,564 |
33. In respect of the function of advertising, the Court held in that judgment that use of a sign identical with another person’s trade mark, in a referencing service such as ‘AdWords’, is not liable to have an adverse effect on that function of the trade mark ( Google France and Google , paragraph 98).
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40. Accordingly, enjoyment in a Member State of a standard rate of VAT lower than the standard rate in force in another Member State cannot be regarded in itself as a tax advantage the grant of which is contrary to the objectives of the VAT Directive.
| 0 |
862,565 |
57. In accordance with the principle of equivalence, the procedural rules governing such cases must be no less favourable than those governing purely internal situations (see, to that effect, Palmisani , paragraph 32, and Edis , paragraph 34). Otherwise, there would be a breach of the principle of equal treatment for workers who have exercised their right to freedom of movement and those who have spent their entire working life in a single Member State.
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33
The requirement that the person at issue performs the essential part of its activities with the controlling authority or authorities is designed to ensure that Directive 2004/18 remains applicable in the event that an undertaking controlled by one or more authorities is active in the market, and therefore liable to be in competition with other undertakings. An undertaking is not necessarily deprived of freedom of action merely because the decisions concerning it are controlled by the controlling municipal authority or authorities, if it can still carry out a large part of its economic activities with other operators. By contrast, where that undertaking’s services are mostly intended for that authority or those authorities alone, it seems justified that that undertaking should not be subject to the restrictions of Directive 2004/18, since they are in place to preserve a state of competition which, in that case, no longer has any raison d’être (see, by analogy, judgment of 11 May 2006, Carbotermo and Consorzio Alisei, C‑340/04, EU:C:2006:308, paragraphs 60 to 62).
| 0 |
862,566 |
25. First, it must be recalled that Directive 91/676 seeks to create the instruments needed to ensure that waters in the European Union are protected against pollution caused by nitrates from agricultural sources (the judgment in Commission v Netherlands , C‑322/00, EU:C:2003:532, paragraph 41 and case-law cited).
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60. In its action before the Court of First Instance, TU maintains that the excessive duration of the administrative procedure had an impact on the exercise of its rights of defence and, accordingly, on the outcome of the procedure initiated against it. It claims that its defence was thus already impeded at the time when it received the statement of objections.
| 0 |
862,567 |
27. That finding is not contrary to the interpretation of Article 12(2)(a) of Directive 2008/95 given by the Court in paragraph 26 of the judgment in Björnekulla Fruktindustrier , according to which, in cases where intermediaries participate in the distribution of a product which is the subject of a registered trade mark, the relevant classes of persons whose views must be taken into account in determining whether that trade mark has become the common name in the trade for the product in question comprise all consumers or end users and, depending on the features of the market concerned, all those in the trade who deal with that product commercially.
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30. In the absence of any unifying or harmonising Community measures, Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (see Gilly , paragraphs 24 and 30; Case C‑307/97 Saint-Gobain ZN [1999] ECR I‑6161, paragraph 57; Amurta , paragraph 17; and Orange European Smallcap Fund , paragraph 32). It is for the Member States to take the measures necessary to prevent situations of double taxation by applying, in particular, the criteria followed in international tax practice (see Kerckhaert and Morres , paragraph 23).
| 0 |
862,568 |
65. The 1996 Regulations introduce a difference in treatment according to whether the person involved is habitually resident in the United Kingdom. Since that requirement is capable of being met more easily by the State’s own nationals, the 1996 Regulations place at a disadvantage Member State nationals who have exercised their right of movement in order to seek employment in the territory of another Member State (see, to this effect, Case C-237/94 O’Flynn [1996] ECR I‑2617, paragraph 18, and Case C-388/01 Commission v Italy [2003] ECR I-721, paragraphs 13 and 14).
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83. The question whether that function of the trade mark is adversely affected when internet users are shown, on the basis of a keyword identical with a mark, a third party’s ad, such as that of a competitor of the proprietor of that mark, depends in particular on the manner in which that ad is presented.
| 0 |
862,569 |
24. In examining the present plea, it should be noted first of all that Article 4 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1) provides for a stage at which the aid measures notified undergo a preliminary examination, the purpose of which is to enable the Commission to form an initial view as to whether that aid is compatible with the common market. On completion of that stage, the Commission is to make a finding either that the measure does not constitute aid or that it falls within the scope of Article 87(1) EC. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the common market; on the other hand, it is also possible that the measure may raise such doubts (judgment of 24 May 2011 in Case C‑83/09 P Commission v Kronoply and Kronotex , not yet published in the ECR, paragraph 43; order of 9 June 2011 in Case C‑451/10 P TF1 v Commission , paragraph 47; judgment of 22 September 2011 in Case C‑148/09 P Belgium v Deutsche Post and DHL International , not yet published in the ECR, paragraph 53; and judgment of 27 October 2011 in Case C‑47/10 P Austria v Scheucher-Fleisch and Others , not yet published in the ECR, paragraph 40).
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90. Even where such provisions extend to the situation of a company which is not resident in one of the contracting Member States, they apply only to persons resident in one of those Member States and, by contributing to the overall balance of the DTCs in question, are an integral part of them.
| 0 |
862,570 |
52. As regards, in particular, the prohibition laid down in Article 5 of Directive 90/435 on Member States levying a withholding tax on profits distributed by a resident subsidiary to its parent company, where that parent company is resident in another Member State, the Court has already held that any tax on income received in the State in which dividends are distributed is a withholding tax on distributed profits where the chargeable event for the tax is the payment of dividends or of any other income from shares, the taxable amount is the income from those shares and the taxable person is the holder of the shares ( Epson Europe , paragraph 23; Athinaïki Zithopoiïa , paragraphs 28 and 29; Océ Van der Grinten , paragraph 47; and Test Claimants in the FII Group Litigation , paragraph 108).
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65. Il est de jurisprudence constante que, dans l’hypothèse où tous les autres moyens d’un pourvoi ont été rejetés, les conclusions concernant la prétendue irrégularité de la décision du Tribunal sur les dépens doivent être rejetées comme irrecevables, en application de l’article 58, second alinéa, du statut de la Cour de justice de l’Union européenne, aux termes duquel un pourvoi ne peut porter uniquement sur la charge et le montant des dépens (voir, notamment, arrêt LPN et Finlande/Commission, C-514/11 P et C-605/11 P, EU:C:2013:738, point 100 ainsi que jurisprudence citée).
| 0 |
862,571 |
40. First, regarding the argument put forward by the Republic of Finland that the transfer licence is indispensable in order to attain the objective of road safety because, in particular, it allows the vehicles at issue to be identified precisely through the updating of information included on the Register of Vehicles, it is not in dispute that road safety does constitute an overriding reason in the public interest capable of justifying a hindrance to the free movement of goods (see, in particular, Case C‑55/93 Van Schaik [1994] ECR I‑4837, paragraph 19; Case C‑314/98 Snellers [2000] ECR I‑8633, paragraph 55; and Case C‑451/99 Cura Anlagen [2002] ECR I‑3193, paragraph 59).
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81. Consequently, in the event of a resale of the copy of the computer program by the first acquirer, the new acquirer will be able, in accordance with Article 5(1) of Directive 2009/24, to download onto his computer the copy sold to him by the first acquirer. Such a download must be regarded as a reproduction of a computer program that is necessary to enable the new acquirer to use the program in accordance with its intended purpose.
| 0 |
862,572 |
21
However, the referring court states that it has doubts as to whether that approach is consistent with EU law. It refers to the case-law to the effect that the principle of the obligation on Member States to repay with interest amounts of tax levied in infringement of EU law follows from that law (judgment of 18 April 2013, Irimie, C‑565/11, EU:C:2013:250, paragraph 22). It is for that reason unsure whether the ‘unwritten law’ of the EU requires, in circumstances such as those obtaining in the main proceedings, the payment of interest on import duties which have been reimbursed. In that regard, according to the referring court, it is necessary to take into account, in particular, the fact that the national provisions on the payment of interest, in this case Paragraph 233 et seq. of the Tax Code, are applicable mutatis mutandis only subject to EU law, as is clear from Paragraph 1(3), first sentence, and Paragraph 3(4) of that code.
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37. Whether the applicant is acting in bad faith, within the meaning of Article 51(1)(b) of Regulation No 40/94, must be the subject of an overall assessment, taking into account all the factors relevant to the particular case.
| 0 |
862,573 |
81 According to established case-law, the freedom of establishment which Article 52 grants to nationals of the Member States and which entails the right for them to take up and pursue activities as self-employed persons under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected includes, pursuant to Article 58 of the Treaty, the right of companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community to pursue their activities in the Member States concerned through a subsidiary, branch or agency (see ICI, cited above, paragraph 20; Case C-254/97 Baxter and Others [1999] ECR I-4809, paragraph 9, and Case C-307/97 Saint-Gobain ZN v Finanzamt Aachen-Innenstadt [1999] ECR I-6161, paragraph 35).
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69. It should finally be noted that, in any event, an error consisting in an involuntary omission cannot be regarded as the exercise of a choice, which is by definition voluntary.
| 0 |
862,574 |
48 It must, however, also be borne in mind that, according to settled case-law, a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties (see Case 270/80 Polydor and RSO Records [1982] ECR 329, paragraphs 14 to 21; Case 104/81 Kupferberg [1982] ECR 3641, paragraphs 29 to 31; Case C-312/91 Metalsa [1993] ECR I-3751, paragraphs 11 to 20).
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99. Consequently, in the context of the procedure relating to existing schemes of aid, to prove the advantage obtained by such a guarantee to the recipient undertaking, it is sufficient for the Commission to establish the mere existence of that guarantee, without having to show the actual effects produced by it from the time that it is granted.
| 0 |
862,575 |
25. The reason given for the adoption of that Regulation is the fact that the period of effective protection under the patent is insufficient to cover the investment put into pharmaceutical research and the regulation thus seeks to make up for that insufficiency by creating a SPC for medicinal products (see Case C‑181/95 Biogen [1997] ECR I‑357, paragraphs 26, and AHP Manufacturing , paragraph 30).
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55. 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 to 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, and General Química and Others v Commission , paragraph 38).
| 0 |
862,576 |
31. In the first place, with respect to the infringement of the principle of effectiveness, it should be recalled that, in the absence of EU rules on the recovery of national taxes unduly levied, it is for the domestic legal system of each Member State, in accordance with the principle of the procedural autonomy of the Member States, to lay down the detailed procedural rules governing actions at law for safeguarding the rights which taxpayers derive from EU law (see, to that effect, judgments in Agrokonsulting-04 , C‑93/12, EU:C:2013:432, paragraph 35, and Test Claimants in the Franked Investment Income Group Litigation , EU:C:2013:834, paragraph 31).
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33 In those circumstances, a benefit such as AA is, by reason of the fact that it is listed in Annex IIa, governed by the coordination rules of Article 10a and is consequently a special non-contributory benefit within the meaning of Article 4(2a) (see, to this effect, Snares, paragraph 32).
| 0 |
862,577 |
69. In accordance with Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the facts or evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, Case C‑104/00 P DKV v OHIM [2002] ECR I‑7561, paragraph 22, and Case C‑173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I‑551, paragraph 35).
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60. The requirement that the person in question must carry out the essential part of its activities with the controlling authority or authorities is aimed precisely at ensuring that Directive 93/36 remains applicable in the event that an undertaking controlled by one or more authorities is active in the market and therefore likely to be in competition with other undertakings.
| 0 |
862,578 |
35. However, it follows from the Court’s case-law that the requirement of a correct and straightforward application of the exemptions does not allow the Member States to prejudice the objectives of the Sixth Directive or the principles of Community law, in particular the principle of equal treatment, which is reflected, in the field of VAT, by the principle of fiscal neutrality (see Dornier , paragraphs 42 and 69; Case C‑498/03 Kingscrest Associates and Montecello [2005] ECR I‑4427, paragraphs 29 and 52; and Case C-246/04 Turn- und Sportunion Waldburg [2006] ECR I-0000, paragraphs 44 to 46).
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20. In order to answer those questions, it should first be pointed out that, according to the settled case-law of the Court, the objective of the Community legislation on customs valuation is to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values (Case C-11/89 Unifert [1990] ECR I-2275, paragraph 35, and Case C-15/99 Sommer [2000] ECR I-8989, paragraph 25). The customs value must thus reflect the real economic value of an imported good and take into account all of the elements of that good that have economic value (see Case C‑306/04 Compaq Computer International Corporation [2006] ECR I‑10991, paragraph 30).
| 0 |
862,579 |
49. With regard, thirdly, to the procedure for the grant of the concessions at issue in the main proceedings, it must first be recalled that although, as European Union law now stands, service concessions are not governed by any of the directives by which the European Union legislature has regulated public procurement, the public authorities which grant such concessions are none the less bound to comply with the fundamental rules of the Treaties, in particular Articles 43 EC and 49 EC, and with the consequent obligation of transparency (see, to that effect, Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraphs 60 and 61; Case C‑231/03 Coname [2005] ECR I‑7287, paragraphs 16 to 19; Case C‑458/03 Parking Brixen [2005] ECR I‑8585, paragraphs 46 to 48; Case C‑91/08 Wall [2010] ECR I‑0000, paragraph 33; and Case C‑203/08 Sporting Exchange [2010] ECR I‑0000, paragraph 39).
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86. Pour autant que la requérante demande une réduction du montant de l’amende qui lui a été infligée de façon à tenir compte des conséquences financières ayant résulté pour elle de la durée excessive de la procédure devant le Tribunal, il convient de rappeler que, dans un premier temps, la Cour, confrontée à une situation similaire, a fait droit à une telle demande pour des raisons d’économie de procédure et afin de garantir un remède immédiat et effectif contre une telle irrégularité de procédure et a, ainsi, procédé à la réduction du montant de l’amende (arrêt du 17 décembre 1998, Baustahlgewebe/Commission, C‑185/95 P, Rec. p. I‑8417, point 48).
| 0 |
862,580 |
28. Second, the possibility which this offers of circumventing Article 16(4) of the Convention would have the effect of multiplying the heads of jurisdiction and would be liable to undermine the predictability of the rules of jurisdiction laid down by the Convention, and consequently to undermine the principle of legal certainty, which is the basis of the Convention (see Case C-256/00 Besix [2002] ECR I-1699, paragraphs 24 to 26, Case C-281/02 Owusu [2005] ECR I-1383, paragraph 41, and Case C-539/03 Roche Nederland and Others [2006] ECR I‑0000, paragraph 37).
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32
As the Advocate General observed in point 64 of his Opinion, for the purposes of ascertaining whether a person has been subject to unfavourable treatment, it is necessary to carry out, not a general abstract comparison, but a specific concrete comparison, in the light of the favourable treatment in question.
| 0 |
862,581 |
43
That conclusion is not called into question in the light of the approach taken in the judgments of 16 September 2013, Wabco Europe and Others v Commission (T‑380/10, EU:T:2013:449, paragraph 84), and of 16 September 2013, Keramag Keramische Werke and Others v Commission (T‑379/10 and T‑381/10, not published, EU:T:2013:457, paragraph 220 et seq.). In accordance with settled case-law of the Court of Justice, the General Court’s obligation to state the reasons for its judgments does not in principle extend to requiring it to justify the approach taken in one case as against that taken in another case, even if the latter concerns the same decision (see judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 66 and the case-law cited).
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46. According to the 48th recital of the preamble to the directive, the sui generis right has an economic justification, which is to afford protection to the maker of the database and guarantee a return on his investment in the creation and maintenance of the database.
| 0 |
862,582 |
14. It should be noted at the outset that neither the Customs Code nor the Implementing Regulation contains a definition of the term ‘one type of goods’, as used in Article 6(2) of that regulation. It is necessary, therefore, when interpreting that term, to take account of the wording, the context and the objectives of that provision (see, to that effect, Case C-98/07 Nordania Finans and BG Factoring [2008] ECR I-1281, paragraph 17 and the case-law cited).
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29. Or, l’activité des SOA présente un caractère économique. En effet, celles-ci délivrent des certificats en contrepartie d’une rémunération et exclusivement sur la base de la demande réelle du marché. En outre, elles assument les risques financiers afférents à l’exercice de cette activité (voir, en ce sens, arrêt du 18 juin 1998, Commission/Italie, C‑35/96, Rec. p. I‑3851, point 37).
| 0 |
862,583 |
48
It follows from the wording of Article 71(2) of Regulation No 817/2004, according to which the contested aid was paid to the applicant in the main proceedings, that the latter is required to repay that aid where the conditions governing the payment thereof are not satisfied (see, to that effect, judgments of 24 May 2012 in Hehenberger, C‑188/11, EU:C:2012:312, paragraph 34, and 7 February 2013 in Pusts, C‑454/11, EU:C:2013:64, paragraphs 36 and 37).
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22. In view of the nature of the analysis to be carried out, it is for the national court to classify the activity at issue in the main proceedings in the light of the criterion adopted above ( Comune di Carpaneto Piacentino and Others , cited above, paragraph 16; Case C-4/89 Comune di Carpaneto Piacentino and Others [1990] ECR I‑1869, paragraph 11; and Fazenda Pública , paragraph 23).
| 0 |
862,584 |
58
The Commission submits that the contested contributions cannot be characterised as ‘[amounting] merely to charges for public utility services’ within the meaning of the third paragraph of Article 3 of the Protocol. In accordance with the Court’s case-law, a contribution cannot constitute mere remuneration for public utility services, within the meaning of that provision, unless such services are provided, or at least are capable of being provided, to those who have to pay the contribution (judgment in AGF Belgium, C‑191/94, EU:C:1996:144, paragraph 26). In addition, the characterisation of a charge as a ‘charge for public utility services’ requires there to be a direct and proportional link between the actual cost of that service and the charge paid by the recipient (judgment in European Commission, C‑199/05, EU:C:2006:678, paragraph 25). According to the Commission, those two conditions are not satisfied in the present case.
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38. Investment in the creation of a database may consist in the deployment of human, financial or technical resources but it must be substantial in quantitative or qualitative terms. The quantitative assessment refers to quantifiable resources and the qualitative assessment to efforts which cannot be quantified, such as intellectual effort or energy, according to the 7th, 39th and 40th recitals of the preamble to the directive.
| 0 |
862,585 |
14. In support of its request before the national court, X AB in essence contended that, on account of the Swedish legislation, the investments that it made in Y Ltd were more risky than comparable domestic investments. Its argument is based mainly on the idea that an investment in Swedish Krona made in a Swedish limited company would not be subject to any uncertainty equivalent to the exchange risk to which an investment in another Member State can be subject. The Swedish tax system would, on that account, constitute an impediment to the free movement of capital and to the freedom of establishment, as the Court held in the judgment in Deutsche Shell (C‑293/06, EU:C:2008:129) the reasoning in which can be applied to the case in the main proceedings.
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36. That classification must also apply to a non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted and a non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis. Although those organisms have not, strictly speaking, been the object of fertilisation, due to the effect of the technique used to obtain them they are, as is apparent from the written observations presented to the Court, capable of commencing the process of development of a human being just as an embryo created by fertilisation of an ovum can do so.
| 0 |
862,586 |
46. The case-law of the Court of Justice thus shows that it is for each Member State to assess whether, in the context of the legitimate aims which it pursues, it is necessary wholly or partially to prohibit activities of that nature, or only to restrict them and to lay down more or less strict supervisory rules for that purpose, the necessity and the proportionality of the measures thus adopted having only to be assessed having regard to the objectives pursued and the level of protection sought to be ensured by the national authorities concerned (see to that effect, in particular, Läärä and Others , paragraphs 35 and 36; Zenatti , paragraphs 33 and 34; and Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I-7633, paragraph 58).
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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 |
862,587 |
49. According to equally well-established case-law, whilst EU law does not detract from the power of the Member States to organise their social security systems and whilst, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits, the fact nevertheless remains that, when exercising that power, Member States must comply with EU law and, in particular, with the provisions on the freedom to provide services (see, to that effect, in particular, Kohll , paragraphs 17 to 21; Case C-208/07 von Chamier-Glisczinski [2009] ECR I-6095, paragraph 63; and Case C-490/09 Commission v Luxembourg [2011] ECR I-247, paragraph 32 and the case-law cited).
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16 The division of production and sales activities within a group made up of legally distinct companies can in no way alter the fact that the group is a single economic entity which organizes in that way activities that, in other cases, are carried on by what is in legal terms as well a single entity .
| 0 |
862,588 |
26. It should also be noted that, according to the Court’s case‑law, the question whether it is a service concession or a public service contract and, in the latter case, whether the value of the contract reaches the threshold provided for under the EU rules has no effect on the Court’s answer to the question referred for a preliminary ruling, given that the exception to the application of the rules of EU law where the ‘similar control’ conditions are fulfilled is applicable in all those situations (see, to that effect, Case C‑573/07 Sea [2009] ECR I-8127, paragraphs 31 to 40).
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39. So far as the award of public service contracts is concerned, contracting authorities must, in particular, comply with Articles 43 EC and 49 EC, and also observe the principles of equal treatment and non-discrimination on grounds of nationality, and the duty of transparency stemming therefrom as well (see, to that effect, Parking Brixen , paragraphs 47 to 49, and Case C‑410/04 ANAV [2006] ECR I‑3303, paragraphs 19 to 21).
| 1 |
862,589 |
32
It is true that the Court has stated that this principle of interpreting national law in conformity with EU law has certain limits. Thus, the obligation for a national court to refer to EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law contra legem (see judgments in Impact, C‑268/06, EU:C:2008:223, paragraph 100; Dominguez, C‑282/10, EU:C:2012:33, paragraph 25; and Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 39).
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39. Nevertheless, the Court has stated that this principle of interpreting national law in conformity with European Union law has certain limits. Thus the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem (see Case C-268/06 Impact [2008] ECR I-2483, paragraph 100, and Dominguez , paragraph 25).
| 1 |
862,590 |
67. As regards the Commission’s argument that the contested regulation is broader in scope than the Basel Convention, since it applies to all waste destined for disposal and recovery, whereas the Convention covers only hazardous waste for disposal, and that that difference denotes a commercial policy dimension to the Regulation, it must be pointed out that it is clear from Article 2(4) of that convention, read in conjunction with Section B of Annex IV thereto, that the term ‘disposal’ used in that convention covers ‘[o]perations which may lead to resource recovery, recycling, reclamation, direct reuse or alternative uses’. As observed by the Advocate General in point 33 of his Opinion, the fact that the contested regulation also applies to non-hazardous waste and to waste intended for recovery does not make it commercial or weaken its environmental dimension since waste, of whatever type it may be, is inherently harmful to the environment (see, to that effect, Case C-9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-3533, paragraphs 36 and 45 to 51).
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63. The first situation is where items which are taxable in one Member State and located in another Member State have been concealed from the tax authorities of the first Member State and the latter do not have any evidence of the existence of those items which would enable an investigation to be initiated. In that situation, the first Member State is unable to request the competent authorities of the other Member State to communicate to it the information necessary to establish correctly the amount of tax due.
| 0 |
862,591 |
27. Article 40 of and Annex XII to the EEA Agreement are applicable to the dispute in the main proceedings which relates to a transaction between nationals of States party to that Agreement. The Court may give an interpretation of them where a reference is made by a court of a Member State with regard to the scope within that State of an agreement which forms an integral part of the Community legal system (see Case C-321/97 Andersson and Wåkerås-Andersson [1999] ECR I-3551, paragraphs 26 to 31, and Case C-300/01 Salzmann [2003] ECR I-4899, paragraph 65).
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26. Consequently, by extending the restriction of the right to deduct to fully taxable persons, the general rule laid down in Law No 37/1992 introduces a restriction which goes beyond the one expressly provided for in Articles 17(5) and 19 of the Sixth Directive and infringes the provisions of the directive.
| 0 |
862,592 |
65. In that respect, although the Commission is bound by the guidelines and notices that it issues in the field of State aid, that is so only to the extent that those texts do not depart from the proper application of the rules in the Treaty, since the texts cannot be interpreted in a way which reduces the scope of Articles 87 EC and 88 EC or which contravenes the aims of those articles (see, to that effect, Deufil v Commission , paragraph 22; Case C‑351/98 Spain v Commission , paragraph 53; Italy v Commission , point 45, all cited above; and, by analogy, Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 72).
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80. The PDO "Prosciutto di Parma" would not receive comparable protection from an obligation imposed on operators established outside the region of production to inform consumers, by means of appropriate labelling, that the slicing and packaging has taken place outside that region. Any deterioration in the quality or authenticity of ham sliced and packaged outside the region of production, resulting from materialisation of the risks associated with slicing and packaging, might harm the reputation of all ham marketed under the PDO "Prosciutto di Parma" , including that sliced and packaged in the region of production under the control of the group of producers entitled to use the PDO (see, to that effect, Belgium v Spain , paragraphs 76 and 77).
| 0 |
862,593 |
35. Next, it should be recalled that the Court has stated that, since it constitutes a derogation from the principle that passengers have the right to compensation, Article 5(3) must be interpreted strictly (judgment in Wallentin-Hermann , C‑549/07, EU:C:2008:771, paragraph 20).
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62 Moreover, that is the reason why the Commission stated at the hearing that the Belgian Government had fulfilled its obligations under the contested measure in regard to the recovery of the aid since, after the dismissal of its application for interim measures by the President of the Court, the Belgian Government sought to have its debt registered as one of Tubemeuse' s unsecured liabilities and lodged an appeal against the judgment rejecting that application .
| 0 |
862,594 |
31. With regard, on the one hand, to the latter, it is sufficient to recall that that regulation aims, as stated in paragraphs 25 to 28 of the present judgment, to harmonise the conditions of competition with regard to the road sector and to improve working conditions for the employees in that sector and road safety (see, in particular, Goupil , paragraph 10; Mrozek and Jäger , paragraph 11; Raemdonck and Raemdonck-Janssens , paragraph 22; and Seeger , paragraph 34), those objectives meaning in particular that, in principle, road transport vehicles must be equipped with an approved tachograph enabling compliance with driving times and drivers’ rest periods to be monitored.
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50. As regards the first stage of the examination to be carried out by the national court, it appears from Article 1 in conjunction with Article 3 of the Directive that it applies to any term conferring exclusive territorial jurisdiction which was not individually negotiated appearing in a contract concluded between a seller or supplier and a consumer.
| 0 |
862,595 |
56
As regards, in particular, national measures that confer a tax advantage, it must be recalled that a measure of that nature which, although not involving the transfer of State resources, places the recipients in a more favourable position than other taxpayers is capable of procuring a selective advantage for the recipients and, consequently, of constituting State aid, within the meaning of Article 107(1) TFEU. On the other hand, a tax advantage resulting from a general measure applicable without distinction to all economic operators does not constitute such aid (see to that effect, inter alia, judgment of 18 July 2013, P,C‑6/12, EU:C:2013:525, paragraph 18).
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22. In that regard, it must be noted that the legal act which is the subject-matter of the main proceedings was adopted in 2008 by the decision of the vakuutusoikeus. Nor is it in dispute that the compensation for long-term harm in question seeks to remedy the consequences of X’s accident for the rest of his life.
| 0 |
862,596 |
64. In paragraph 165 of the judgment under appeal, the General Court rightly pointed out that where, following the annulment of a decision penalising undertakings which have infringed Article 81(1) EC because of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission is to adopt a fresh decision, with substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 83 to 111).
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11 THE COURT HAS STATED IN A NUMBER OF DECISIONS THAT THE DISTINCTION BETWEEN BENEFITS WHICH ARE EXCLUDED FROM THE SCOPE OF REGULATION NO 1408/71 AND BENEFITS WHICH COME WITHIN IT RESTS ENTIRELY ON THE FACTORS RELATING TO EACH BENEFIT , IN PARTICULAR ITS PURPOSE AND THE CONDITIONS FOR ITS GRANT , AND NOT ON WHETHER THE NATIONAL LEGISLATION DESCRIBES THE BENEFIT AS A SOCIAL SECURITY BENEFIT OR NOT .
| 0 |
862,597 |
23. In this connection, it is to be noted that the tax treatment of dividends may fall within Article 49 TFEU on freedom of establishment and Article 63 TFEU on the free movement of capital (Joined Cases C-436/08 and C-437/08 Haribo Lakritzen Hans Riegel and Österreichische Salinen [2011] ECR I–305, paragraph 33, and Case C-35/11 Test Claimants in the FII Group Litigation [2012] ECR, paragraph 89).
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103 Nor can any obligation to state the reasons on which a request for further information is based be inferred from any general principle of Community law. It is true that Community law imposes an obligation to state the reasons for national decisions affecting the exercise of a fundamental right conferred on individuals by the Treaty (see, in particular, Case 222/86 Unectef v Heylens [1987] ECR 4097, paragraphs 14 and 15). However, in view of its aim, that obligation does not extend to measures such as the one at issue in this case, relating to the examination of an application, by which the competent authority asks an applicant for marketing authorisation to provide further information. In the event of authorisation being withheld on the ground that the applicant has failed to comply with the request for further information, the competent authority is in any event required to state the reasons on which its decision is based.
| 0 |
862,598 |
25. Consequently, where questions submitted by national courts concern the interpretation of a provision of Community law, the Court is, in principle, obliged to give a ruling (see Dzodzi and Gmurzynska-Bscher , cited above, paragraphs 35 and 20 respectively). Neither the wording of Article 177 nor the aim of the procedur e established by that article indicates that the Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State (see Dzodzi and Gmurzynska-Bscher , cited above, paragraphs 36 and 25 respectively).
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33
In addition, the development of EU legislation concerning compulsory insurance shows that that objective of protecting the victims of accidents caused by those vehicles has continuously been pursued and reinforced by the EU legislature (see, to that effect, judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraphs 52 to 55).
| 0 |
862,599 |
23. Secondly, Article 249 of the Community Customs Code constitutes a sufficient basis for the Commission to adopt a set of rules for the implementation of that code (Case C‑48/98 Söhl & Söhlke [1999] ECR I‑7877, paragraph 35).
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34. Second, it is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters (see, inter alia, Case C‑339/98 Peacock EU:C:2000:573, paragraph 9; Case C‑495/03 Intermodal Transports EU:C:2005:105, paragraph 47; Case C‑376/07 Kamino International Logistics EU:C:2009:105, paragraph 31; and Joined Cases C‑288/09 and C‑289/09 British Sky Broadcasting Group and Pace EU:C:2011:248, paragraph 60).
| 0 |
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