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56. Any derogation from or exception to a general rule must be interpreted strictly (see, inter alia , Case C-399/93 Oude Luttikhuis and Others [1995] ECR I-4515, paragraph 23 and Case C-83/99 Commission v Spain [2001] ECR I-445, paragraph 19).
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50. It is for the concession-granting public authority to evaluate, subject to review by the competent courts, the appropriateness of the detailed arrangements of the call for competition to the particularities of the public service concession in question. However, a complete lack of any call for competition in the case of the award of a public service concession such as that at issue in the main proceedings does not comply with the requirements of Articles 43 EC and 49 EC any more than with the principles of equal treatment, non-discrimination and transparency.
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862,601 |
24. In relation to the services offered by lawyers by means of contracts for legal services, the Court has already taken into account the inequality between ‘client-consumers’ and lawyers owing in particular to the asymmetry of information between those parties to the contracts (see judgment in Šiba , C‑537/13, EU:C:2015:14, paragraphs 23 and 24).
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44. The deterrent nature and dissuasive purpose of the prohibitory actions, together with their independence of any particular dispute, mean that such actions may be brought even though the terms which it is sought to have prohibited have not been used in specific contracts (see Commission v Italy , paragraph 15, and Invitel , paragraph 37).
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862,602 |
55. In that respect, the Italian Republic maintains that the difference in treatment is justified by imperative reasons in the public interest relating to the coherence of the tax system, the maintenance of a balanced distribution of the power to tax and the fight against tax evasion, which are grounds that the Court has recognised as being capable of justifying such differences (see, to that effect, Marks & Spencer , paragraph 51; Case C‑414/06 Lidl Belgium [2008] ECR I‑3601, paragraph 42; and, regarding justification based on coherence of the tax system, Case C‑204/90 Bachmann [1992] ECR I-249, paragraph 28, and Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I-2107, paragraph 68).
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15 IN A MARKET ECONOMY BASED ON FREEDOM OF COMPETITION , THE QUESTION WHETHER , AND IF SO TO WHAT EXTENT , A FISCAL CHARGE IMPOSED ON AN IMPORTER HAS ACTUALLY BEEN PASSED ON IN SUBSEQUENT TRANSACTIONS INVOLVES A DEGREE OF UNCERTAINTY FOR WHICH THE PERSON OBLIGED TO PAY A CHARGE CONTRARY TO COMMUNITY LAW CANNOT BE SYSTEMATICALLY HELD RESPONSIBLE .
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19 It is also clear from settled case-law that, in the absence of Community rules governing the refund of national taxes levied though not due, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, however, that such rules are not less favourable than those governing similar domestic actions and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see Rewe, paragraph 5, Comet, paragraphs 13 and 16, both cited above, and, more recently, Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599, paragraph 12).
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67. In those circumstances, the premiss on which the Netherlands Government’s argument concerning fiscal coherence is based does not hold true having regard to the aim pursued by the tax system laid down by Article 167a of the CGI. Therefore, justification for such a system based on an objective of fiscal coherence, which, moreover, the French Government has not argued, cannot be accepted.
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862,604 |
32. In that context, the Verwaltungsgerichtshof Baden-Württemberg decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. On Articles 2, 3 and 7 of [Directive 2004/38]:
(a) Does “family member” include, in particular in the light of Articles 7 and 24 of the [Charter of Fundamental Rights (“the Charter”)] and Article 8 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, “the ECHR”)], on an extended interpretation of Article 2(2)(d) of Directive 2004/38, a parent who is a third-country national, has parental responsibility for a child who is a Union citizen entitled to freedom of movement, and is not maintained by that child?
(b) If so, does Directive 2004/38 apply to that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, on an extended interpretation of Article 3(1) of the directive, even where there is no “accompanying” or “joining” with respect to the Member State of origin of the child who is a Union citizen and has moved away?
(c) If so, does it follow that that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, has a right of residence for more than three months in the Member State of origin of the child who is a Union citizen, on an extended interpretation of Article 7(2) of Directive 2004/38, at least as long as parental responsibility subsists and is actually exercised?
2. On Article 6(1) TEU in conjunction with the Charter:
(a) (i) Is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter simply where the subject‑matter of the dispute depends on a national law (or part of a law) which inter alia – but not only – transposed directives?
(ii) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter simply because the claimant is possibly entitled to a right of residence under Union law and could accordingly, under the first sentence of Paragraph 5(2) of the FreizügG/EU, claim a residence card for a family member of a Union citizen which has its legal basis in the first sentence of Article 10(1) of [Directive 2004/38]?
(iii) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter, in accordance with the case‑law deriving from Case C‑260/89 ERT [1991] ECR I‑2925, paragraphs 41 to 45, where a Member State restricts the right of residence of the father who is a third-country national with parental responsibility for a Union citizen who is a minor and resides predominantly with her mother in another Member State of the Union because of the mother’s employment?
(b) (i) If the Charter is applicable, can a right of residence under European Union law for the father who is a third-country national be derived directly from Article 24(3) of the Charter, at least as long as he has and actually exercises parental responsibility for his child who is a Union citizen, even if the child resides predominantly in another Member State of the Union?
(ii) If not, does it follow from the freedom of movement of the child who is a Union citizen under Article 45(1) of the Charter, possibly in conjunction with Article 24(3) of the Charter, that the father who is a third-country national has a right of residence under European Union law, at least as long as he has and actually exercises parental responsibility for his child who is a Union citizen, so that in particular the freedom of movement of the child who is a Union citizen is not deprived of all practical effect?
3. On Article 6(3) TEU in conjunction with the general principles of European Union law:
(a) Can the “unwritten” fundamental rights of the European Union developed in the Court’s case‑law from Case 29/69 Stauder [1969] ECR 419, paragraph 7, up to, for example, Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 75, be applied in full even if the Charter is not applicable in the specific case; in other words, do the fundamental rights which continue to apply as general principles of Union law under Article 6(3) TEU stand autonomously and independently alongside the new fundamental rights laid down in the Charter in accordance with Article 6(1) TEU?
(b) If so, can a right of residence under European Union law for the purpose of the effective exercise of parental responsibility be inferred from the general principles of Union law, in particular in the light of the right to respect for family life under Article 8 of the ECHR, for a father, who is a third-country national, of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation?
4. On Article 21(1) TFEU in conjunction with Article 8 of the ECHR:
If Article 6(1) or (3) TEU does not lead to a right of residence under European Union law for the claimant, can, in accordance with Case C‑200/02 Zhu and Chen [2004] ECR I‑9925, paragraphs 45 to 47, a right of residence under European Union law for the purpose of the effective exercise of parental responsibility be inferred, under Article 21(1) TFEU, possibly in the light of Article 8 of the ECHR, from the freedom of movement enjoyed by a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation, for the father, who is a third-country national, in the Member State of origin of the child who is a Union citizen?
5. On Article 10 of [Directive 2004/38]:
If a right of residence under European Union law is taken to exist, is a parent who is a third-country national in the claimant’s situation entitled to the issue of a “residence card for a family member of a Union citizen”, possibly in accordance with the first sentence of Article 10(1) of the directive?’
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78
It should be noted in that regard that the absence of an own-motion review of the whole of the contested decision does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court — which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts — should be obliged to undertake of its own motion a new and comprehensive investigation of the file (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 66).
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24 The parties concerned, within the meaning of Article 93(2) of the Treaty, have been defined by the Court as the persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations (Case 323/82 Intermills v Commission [1984] ECR 3809, at paragraph 16).
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31. The Court notes that Articles 47(2) EC, 55 EC and 95 EC, on the basis of which Directive 2001/29 was adopted, allow for the taking of measures necessary for the smooth functioning of the internal market as regards freedom of establishment and the freedom to provide services through harmonisation of national laws pertaining to the content and exercise of copyright and related rights.
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16
Moreover, that court harbours doubts as to whether the requirement to compile and submit such a list is proportionate in the light of the objective pursued, namely the prevention of tax avoidance and evasion. It takes the view that that requirement is of a formal and secondary nature allowing only a preliminary analysis of the intended use of the products concerned. In that regard, it refers to the case-law of the Court on value added tax according to which, on the one hand, the deduction of input tax must be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements (see judgment of 12 July 2012 in EMS-Bulgaria Transport, C‑284/11, EU:C:2012:458, paragraphs 61 and 62) and, on the other hand, national law making export exemptions subject to a time limit for dispatch without allowing, on the basis of failure to comply with the time limit, the reimbursement of value added tax already paid even if the taxable person provided evidence that the goods had left the customs territory of the European Union, which goes beyond what is necessary in order to attain the objective of combating tax avoidance and evasion (see judgment of 19 December 2013 in BDV Hungary Trading, C‑563/12, EU:C:2013:854, paragraph 39).
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80. The Court has already had occasion to confirm the finding of the General Court that the circumstance referred to in the third indent of Section 3 of the Guidelines, namely termination of the infringement as soon as the Commission intervenes, can logically constitute a mitigating circumstance only if there are reasons to suppose that the undertakings concerned were encouraged to cease their anti‑competitive conduct by the interventions in question (see, to that effect, Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 158).
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32 Second, as far as occupational pension schemes are concerned, the Court held in paragraphs 44 and 45 of Barber, cited above, that by reason of overriding considerations of legal certainty, the direct effect of Article 119 of the Treaty could not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of that judgment, namely 17 May 1990, except in the case of claimants who had before that date initiated legal proceedings or raised an equivalent claim.
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36. Secondly, as is apparent from that regulation, Valimar’s resale prices were not used to calculate SSM’s export prices.
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27. However, while the establishment and application of those rules falls within the competence of the Member States, they must none the less exercise that competence in accordance with European Union law. In particular, the rules applicable to actions for safeguarding rights which individuals derive from the direct effect of EU law must not be less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (see Courage and Crehan , paragraph 29; Manfredi , paragraph 62; and Case C-397/11 Jörös [2013] ECR I-0000, paragraph 29). Specifically, in the area of competition law, those rules must not jeopardise the effective application of Articles 101 TFEU and 102 TFEU (see Pfleiderer , paragraph 24, and Case C‑439/08 VEBIC [2010] ECR I‑12471, paragraph 57).
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42. In addition, Article 5 of Directive 2005/29 provides that unfair commercial practices are to be prohibited and sets out the criteria on the basis of which practices may to be classified as being unfair.
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862,609 |
25. In the light of those considerations and the purpose of that directive which, as evidenced by the second recital in the preamble thereto, seeks inter alia to promote greater protection for workers in the event of collective redundancies, the Court has interpreted the concept of ‘establishment’ in Directive 98/59, in particular in Article 1(1)(a), as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties ( Rockfon , paragraphs 31 and 32, and case-law cited).
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47. It should also be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions are appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, inter alia, Case 137/85 Maizena [1987] ECR 4587, paragraph 15; Case C-339/92 ADM Ölmühlen [1993] ECR I-6473, paragraph 15; and Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, paragraph 59).
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38. In addition, that refund cannot be dependent upon the discretion of the tax authorities ( Schmeink & Cofreth and Strobel , paragraph 68).
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22 In the present case, since the objective pursued was the uniform application of the acquis communautaire throughout the Union, it was necessary to give effect to the adaptation measures as from the date of accession, even if they were adopted subsequently. In the absence of any allegation by the Parliament that the principle of legal certainty or the protection of legitimate expectations has been infringed, the first plea in law must be rejected.
The scope ratione materiae of Article 169 of the Act of Accession
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48
The rounding-up rule laid down in Article 175(1) of Directive 2006/112 constitutes a factor taken into consideration in order to determine the initial amount to be deducted (see, to that effect, judgment of 9 June 2016 in Wolfgang und Wilfried Rey Grundstücksgemeinschaft, C‑332/14, EU:C:2016:417, paragraph 46).
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58. Given that the liability of the insured person in this case, which in the view of the referring court, results from Articles 11 and 13 of the Czech Civil Code, originated in a road traffic accident and is civil in nature, there is no reason to consider that such liability does not fall under the substantive national civil liability law to which the First, Second and Third Directives refer.
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862,612 |
53. Contrary to what the Commission asserts, it does not follow from the Court’s case-law that a special status of this kind, which distinguishes a ‘person other than the persons addressed’, within the meaning of Plaumann v Commission , from any other economic operator, must necessarily be inferred from factors such as a significant decline in turnover, appreciable financial losses or a significant reduction in market share following the grant of the aid in question. The grant of State aid can have an adverse effect on the competitive situation of an operator in other ways too, in particular by causing the loss of an opportunity to make a profit or a less favourable development than would have been the case without such aid. Similarly, the seriousness of such an effect may vary according to a large number of factors such as, in particular, the structure of the market concerned or the nature of the aid in question. Demonstrating a substantial adverse effect on a competitor’s position on the market cannot, therefore, simply be a matter of the existence of certain factors indicating a decline in its commercial or financial performance ( Spain v Lenzing , paragraphs 34 and 35).
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31 As is clear from the scheme of the Directive, the identification of waters within the meaning of Article 3(1) forms part of a process which also encompasses the designation of vulnerable zones and the establishment of action programmes. It would thus be incompatible with the Directive to restrict the identification of waters affected by pollution to cases where agricultural sources alone give rise to a concentration of nitrates in excess of 50 mg/1 when, within the framework of that process, the Directive expressly provides that, in establishing the action programmes under Article 5, the respective nitrogen contributions originating from agricultural and other sources are to be taken into account.
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35. The procedural framework should respect the principles set out in point 10 of this notice. That implies amongst others that the procedural framework for the submission of observations on issues relating to the application of Articles 81 [EC] or 82 EC
(a) has to be compatible with the general principles of Community law, in particular the fundamental rights of the parties involved in the case;
(b) cannot make the submission of such observations excessively difficult or practically impossible (the principle of effectiveness) …; and
(c) cannot make the submission of such observations more difficult than the submission of observations in court proceedings where equivalent national law is applied ( … principle of equivalence).’
National legislation
6. The Netherlands Law introducing new rules on economic competition (Law on competition) (wet houdende nieuwe regels omtrent de economische mededinging (Mededingingswet)) of 22 May 1997 (Stb. 1997, No 242), as amended by the law of 9 December 2004 (Stb. 2005, No 172; ‘the Law on competition’), provides, in Article 89h thereof:
‘1. The [Administrative] Board [of the Nederlandse Mededingingsautoriteit (Netherlands competition authority, “the NMa”)] or the Commission of the European Communities may, when not acting as a party, submit written observations in appeal proceedings before the Administrative Court, pursuant to the first subparagraph of Article 15(3) of Regulation No 1/2003, if the Board [of the NMa] or the Commission of the European Communities has expressed its wish to do so. The court may set a time‑limit for this. With the permission of the court, they may also submit oral observations during the hearing.
2. Following an application, pursuant to the second subparagraph of Article 15(3) of Regulation No 1/2003, the court shall provide the Board [of the NMa] and the Commission of the European Communities with all documents referred to in the aforementioned provision. The parties may give their opinions on the documents to be issued within a time-limit to be determined by the court.
3. The parties may respond to observations submitted by the Board [of the NMa] or the Commission of the European Communities within a time-limit to be determined by the court. The court may provide the parties with an opportunity to respond to each other’s observations.’
7. Article 89h is the result of the Law amending the Law on competition and certain other laws relating to the implementation of Regulations (EC) Nos 1/2003 and 139/2004 (wet tot wijziging van de Mededingingswet en van enige andere wetten in verband met de implementatie van EG-verordeningen 1/2003 en 139/2004) of 30 June 2004 (Stb. 2004, No 345). It is apparent from the order for reference that the explanatory memorandum to that law (Kamerstukken II, session 2003-2004, 29276, No 3) contains the following explanations:
‘2.5 Cooperation with national courts
The cooperation between the Commission and the national courts is set out in Article 15 of, and in recital 21 in the preamble to, [Regulation No 1/2003].
…
Article 15(3) thereof also provides that the Commission and the national competition authorities may submit written and oral observations during examination of a case by the court ( amicus curiae ). Those observations have the status of an opinion and the purpose of promoting the coherent application of the competition rules.
To that end, the Commission and the national competition authorities must comply with the Netherlands rules of procedure. In proceedings between two parties, the court is passive and determines the rhythm of the proceedings. Moreover, the court is not bound by the Commission’s opinion (recital 21). The court’s independence is not therefore called into question. The Commission and the national competition authorities must respect the rights of the parties and ensure that confidential business information remains confidential. Finally, in accordance with Article 15(1) of Regulation [No 1/2003], the national court is empowered to ask the Commission to transmit to it information in its possession or its opinion.
…
3.4 Cooperation between the director‑general of the NMa, the Commission and the courts
Article 15(3) of Regulation [No 1/2003] provides that the national competition authorities of the Member States and the Commission, acting on their own initiative, may submit, with regard to the application of Articles 81 and 82 EC, written observations and, with the permission of the court in question, oral observations to the national courts.
In addition, Article 15(1) of Regulation [No 1/2003] provides for the possibility that the court may ask the Commission for information or its opinion with regard to the application of Articles 81 and 82 of the Treaty …
… The implementation of Article 15 of Regulation [No 1/2003] takes place before the administrative courts by amendment of the Law on competition (Article 1(g) [of the amending law,] Articles 89h, 89i and 89j) [of the Law on competition] and, before the civil courts, by amendment of the Code of Civil Procedure [(Wetboek van Burgerlijke Rechtsvordering)] (Article III).’
8. Entitled ‘Non‑deductible general charges’, Article 3.14 of the Law on income tax 2001 (Wet Inkomstenbelasting 2001), in the version applicable to income received in 2002, provided:
‘1. When assessing profits, the charges and costs relating to the following headings shall not be deductible:
…
c. fines imposed by a Netherlands court and the sums paid to the State to avoid judicial proceedings in the Netherlands or to fulfil a condition linked to a decision on remission of a penalty, fines imposed by an institution of the European Union and fines and increases imposed pursuant to the General Law on national taxation [(Algemene wet inzake rijksbelastingen)], the Law on customs [(Douanewet)], the Law on the coordination of social insurance [(Coördinatiewet Sociale Verzekering)], the Law on the administrative enforcement of traffic regulations [(Wet administratiefrechtelijke handhaving verkeersvoorschriften)] and the Law on competition;
…’
The dispute in the main proceedings and the question referred
9. By Commission Decision 2005/471/EC of 27 November 2002 relating to proceedings under Article 81 of the EC Treaty against BPB PLC, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 – Plasterboard) (OJ 2005 L 166, p. 8), BPB, Knauf, Lafarge and Gyproc received fines of EUR 138.6 million, 85.8 million, 249.6 million and 4.32 million respectively. The fines were paid provisionally or secured by a bank guarantee.
10. The penalties thus imposed by the Commission were confirmed by the judgments of the Court of First Instance in Case T‑50/03 Saint-Gobain Gyproc Belgium v Commission [2008] ECR II‑0000, Case T‑52/03 Knauf Gips v Commission [2008] ECR II‑0000, Case T‑53/03 BPB v Commission [2008] ECR II‑0000, and Case T‑54/03 Lafarge v Commission [2008] ECR II‑0000. Knauf and Lafarge lodged an appeal before the Court of Justice against the judgments of the Court of First Instance dismissing their actions (Cases C‑407/08 P and C‑413/08 P).
11. Before those judgments of the Court of First Instance were delivered, one of the companies concerned, which the file shows was established in Germany, called X KG by the referring court, passed on part of the fine imposed on it within the group of which it is the parent company, and in particular to one of its Netherlands subsidiaries, X BV.
12. On 13 March 2004, an assessment to corporation tax was made on X BV by the Netherlands tax authority in respect of the financial year 2002. By letter of 8 April 2004, the company lodged an objection to that assessment with the Inspector, disputing that the fine imposed by the Commission and passed on to it in part by its parent company constitutes a fine within the meaning of Article 3.14(1)(c) of the Law on income tax 2001, which does not permit the deduction of fines imposed by the Community institutions for the purpose of calculating the taxable profits of a company. The Inspector dismissed that complaint by decision of 11 March 2005.
13. On 19 April 2005, X BV brought an action before the Rechtbank Haarlem (Haarlem District Court) (Netherlands).
14. By judgment of 22 May 2006, that court held that the fine was partially deductible.
15. The Inspector brought an appeal against that judgment before the Gerechtshof te Amsterdam (Court of Appeal, Amsterdam) (Netherlands) by notice of 30 June 2006.
16. The Commission, having been informed by the press and through the national competition authorities, notified the referring court, by letter of 15 March 2007, that it wished to intervene as amicus curiae pursuant to Article 15(3) of Regulation No 1/2003 and in accordance with Article 89h of the Law on competition. In addition, the Commission requested that a time-limit be set for that purpose and that any documents necessary for the assessment of the case be transmitted to it.
17. At the hearing of the Gerechtshof te Amsterdam of 22 August 2007, the parties to the main proceedings and the Commission were asked to express their views on the question whether the Commission was competent under Article 15(3) of Regul ation No 1/2003 to submit, on its own initiative, written observations in the proceedings pending before that court.
18. It is against that background that the Gerechtshof te Amsterdam decided to stay proceedings and refer the following question to the Court for a preliminary ruling:
‘Is the Commission competent, under Article 15(3) of Regulation … No 1/2003, to submit, on its own initiative, written observations in proceedings relating to the deductibility from the (taxable) profit realised by the party concerned in 2002 of a fine for infringement of Community competition law, which was imposed by the Commission on X KG and (partially) passed on to the party concerned?’
The question referred for a preliminary ruling
19. By its question, the referring court essentially asks whether the Commission is competent, under Article 15(3) of Regulation No 1/2003, to submit, on its own initiative, written observations to a national court in proceedings relating to the deductibility from taxable profits of the amount of a fine or a part thereof imposed by the Commission for infringement of Articles 81 EC or 82 EC.
20. In order to ensure the coherent application of the competition rules in the Member States, a cooperation mechanism between the Commission, the national competition authorities and the courts of the Member States was set up in Chapter IV of Regulation No 1/2003.
21. That cooperation is part of the general principle of sincere cooperation, referred to in Article 10 EC, which governs the relationships between the Member States and the Community institutions. As the Court has held, the duty of sincere cooperation imposed on the Community institutions is of particular importance where that cooperation involves the judicial authorities of a Member State who are responsible for ensuring that Community law is applied and respected in the national legal system (see order in Case C‑2/88 IMM Zwartveld and Others [1990] ECR I-3365, paragraph 18).
22. In that context, the national courts, on the one hand, and the Commission and the Community Courts, on the other, act on the basis of the role assigned to them by the Treaty (see, to that effect, Case C‑344/98 Masterfoods and HB [2000] ECR I‑11369, paragraph 56).
23. Articles 11 to 14 of Regulation No 1/2003 provide for various forms of cooperation between the Commission and the national competition authorities.
24. Article 15 of that regulation, entitled ‘Cooperation with national courts’, establishes a system for the mutual exchange of information between the Commission and the courts of the Member States, and provides, in specific circumstances, for the possibility of intervention by the Commission and the competition authorities of the Member States in proceedings pending before national courts.
25. As recital 21 in the preamble to Regulation No 1/2003 mentions, the cooperation mechanism between the Commission and the courts of the Member States is relevant for all courts of the Member States that apply Articles 81 EC and 82 EC, whether in lawsuits between private parties, acting as public enforcers or as review courts.
26. Article 15(1) of Regulation No 1/2003 provides, on the one hand, that those courts may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of the Community competition rules. Article 15(2) thereof states, on the other hand, that the Member States are to forward to the Commission a copy of any written judgment of national courts deciding on the application of Articles 81 EC or 82 EC.
27. The first and second sentences of the first subparagraph of Article 15(3) permit the competition authorities of the Member States to submit written observations on their own initiative, and, with the permission of the court concerned, oral observations to the national courts of their Member State on issues relating to the application of Articles 81 EC or 82 EC. The third and fourth sentences of that provision also permit the Commission to submit written observations on its own initiative, and, with the permission of the court in question, oral observations to courts of the Member States where the coherent application of Articles 81 EC or 82 EC so requires.
28. Thus, the first subparagraph of Article 15(3) of Regulation No 1/2003 refers to two different types of intervention with separate fields of application: intervention by the national competition authorities before the national courts of their Member State on issues relating to the application of Articles 81 EC or 82 EC, and intervention by the Commission before courts of the Member States where the coherent application of Articles 81 EC or 82 EC so requires.
29. The four sentences of that subparagraph, and above all the fact that the second and fourth sentences are almost entirely identical, emphasises the fact that the Community legislature intended to draw a distinction between those two situations, despite the fact that they appear in the same subparagraph.
30. Consequently, a literal interpretation of the first subparagraph of Article 15(3) of Regulation No 1/2003 leads to the conclusion that the option for the Commission, acting on its own initiative, to submit written observations to courts of the Member States is subject to the sole condition that the coherent application of Articles 81 EC or 82 EC so requires. That condition may be fulfilled even if the proceedings concerned do not pertain to issues relating to the application of Article 81 or Article 82 of the Treaty.
31. That interpretation is not called in question by the fourth sentence of recital 21 in the preamble to Regulation No 1/2003, according to which the Commission and the competition authorities of the Member States should be able to submit written or oral observations to courts called upon to apply Articles 81 EC or 82 EC. That recital refers merely to a typical situation but does not exclude other situations in which the Commission may intervene. Moreover, whilst a recital in the preamble to a regulation may cast light on the interpretation to be given to a legal rule, it cannot in itself constitute such a rule (Case 215/88 Casa Fleischhandels [1989] ECR 2789, paragraph 31, and Case C‑136/04 Deutsches Milch‑Kontor [2005] ECR I‑10095, paragraph 32 and case‑law cited).
32. Moreover, contrary to what X BV and the Netherlands Government submit, the interpretation of the first subparagraph of Article 15(3) of Regulation No 1/2003 given in paragraph 30 of this judgment is not contradicted by points 31 to 35 of the Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC, which state that the Commission may submit observations on issues relating to the application of Articles 81 EC or 82 EC. The general concept of ‘issues relating to the application of Articles 81 … EC or 82 [EC]’ adopted by that notice includes the possibility for the Commission to submit written observations to national courts where the coherent application of Articles 81 EC or 82 EC so requires. In any event, the content of a Commission notice cannot prevail over the provisions of a regulation.
33. Community law has established a comprehensive system for monitoring cartels and abuses of dominant positions which sets out a principle of prohibition, contained in Articles 81 EC and 82 EC, and sanctions for its infringement, on the basis of Article 83 EC. Those articles must be understood as forming part of a comprehensive set of provisions designed to prohibit and punish anti‑competitive practices.
34. It is apparent from Article 83(2)(a) EC that the fines and periodic penalty payments which may be imposed on undertakings in connection with the application of Community competition law are designed to ‘ensure compliance with the prohibitions laid down in Article 81(1) [EC] and in Article 82 [EC]’. The purpose of Article 83 EC is therefore inter alia to ensure the effective supervision of cartels and abuses of dominant positions.
35. The Commission’s power to impose fines on undertakings which intentionally or negligently commit an infringement of Articles 81(1) EC or 82 EC is one of the means conferred on the Commission in order to enable it to carry out the task of supervision entrusted to it by Community law (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 105, and Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 22).
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75 It should be noted that that policy is also designed to protect the health and life of humans, animals and plants.
| 0 |
862,614 |
65 In preliminary ruling proceedings, although it is ultimately for the national court, which alone is competent to assess the facts, to establish whether, in the particular case before it, there are objective grounds unrelated to any discrimination based on sex to justify such inequality, the Court of Justice, which is called on to provide answers of use to the national court, may nevertheless provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see Seymour-Smith and Perez, cited above, paragraphs 67 and 68).
|
38 Consequently, that argument of the Greek Government cannot be accepted.
| 0 |
862,615 |
27. Second, the Court has already ruled that the disadavantages which could arise from the parallel exercise of tax competences by different Member States, to the extent that such an exercise is not discriminatory, do not constitute restrictions prohibited by the EC Treaty (see, to that effect, Kerckhaert and Morres , paragraphs 19, 20 and 24, and Orange European Smallcap Fund , paragraphs 41, 42 and 47).
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35. Furthermore, it should be noted that, since the right not to be tried or punished twice in criminal proceedings for the same criminal offence is also set out in Article 50 of the Charter, Article 54 of the CISA must be interpreted in the light of that provision.
| 0 |
862,616 |
41. In that connection, it must be borne in mind that, according to settled case-law, the choice of the legal basis for a Community measure must be based on objective factors which are amenable to judicial review and include in particular the aim and content of the measure (see Case 45/86 Commission v Council [1987] ECR 1493, paragraph 11; Case C-300/89 Commission v Council ( Titanium Dioxide ) [1991] ECR I-2867, paragraph 10; Case C-268/94 Portugal v Council [1996] ECR I-6177, paragraph 22; and Case C-176/03 Commission v Council [2005] ECR I‑0000, paragraph 45).
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55 It is true that the solution thus imposed by the wording of Article 17(2)(a) of the Sixth Directive may not appear fully consistent with the purpose of that provision and with certain objectives pursued by the Sixth Directive, such as fiscal neutrality and the avoidance of double taxation.
| 0 |
862,617 |
28. It is clear from the case-law of the Court that the rights of the defence, which include the right to be heard, are among the fundamental rights that form an integral part of the European Union legal order (see, to that effect, inter alia, Case C‑349/07 Sopropé [2008] ECR I‑10369, paragraphs 33 and 36). Where national legislation comes within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the criteria of interpretation required by the national court to determine whether that legislation is compatible with fundamental rights (see, inter alia, Case C‑260/89 ERT [1991] ECR I‑2925, paragraph 42, and Sopropé , paragraphs 33 and 34).
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31. By contrast, as regards products held for private purposes, Article 8 of the Directive provides that excise duty is payable in the Member State in which they were purchased (see, to that effect, EMU Tabac and Others , paragraph 24).
| 0 |
862,618 |
42. It has not been argued that a social security institution, such as VGKK, is an economically weaker party and less experienced legally than a civil liability insurer such as WGV‑SAV. In general, the Court has already held that no special protection is justified where the parties concerned are professionals in the insurance sector, none of whom may be presumed to be in a weaker position than the others (Case C‑77/04 GIE Réunion européenne and Others [2005] ECR I‑4509, paragraph 20).
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68. It should be recalled in this context that, as Community law stands at present, the Member States and, where appropriate, the social partners at national level enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (see, to that effect, Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 63).
| 0 |
862,619 |
33
In that regard, the General Court recalled, firstly, in paragraph 22 of the judgment under appeal, that the Court of Justice has previously held that it follows from a schematic interpretation of the relevant regulations that the adoption by the Commission of a decision on financial corrections in connection with the Cohesion Fund, as from 2000, was subject to the observance of a certain time-limit, the length of which varied depending on the applicable rules (see, to that effect, judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 76, 82, 83, 93 and 94, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 76, 82, 83, 93 and 94).
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29. Furthermore, it is not disputed that the purpose of the entitlement to paid annual leave is to enable the worker to rest from carrying out the work he is required to do under his contract of employment (judgment in KHS , C‑214/10, EU:C:2011:761, paragraph 31). Consequently, the entitlement to paid annual leave accrues and must be calculated with regard to the work pattern specified in the contract.
| 0 |
862,620 |
40. Article 20 TFEU confers the status of citizen of the Union on every person holding the nationality of a Member State (see, inter alia, Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 27, and Case C‑148/02 Garcia Avello [2003] ECR I‑11613, paragraph 21). Since Mr Ruiz Zambrano’s second and third children possess Belgian nationality, the conditions for the acquisition of which it is for the Member State in question to lay down (see, to that effect, inter alia, Case C‑135/08 Rottmann [2010] ECR I-0000, paragraph 39), they undeniably enjoy that status (see, to that effect, Garcia Avello , paragraph 21, and Zhu and Chen , paragraph 20).
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29. The contracting authority cannot, therefore, after publication of a contract notice, amend the technical specification in respect of an element of the contract in breach of the principles of equal treatment and of non-discrimination and the obligation of transparency. It is irrelevant, in that regard, whether or not the element to which that specification refers is still in production or available on the market.
| 0 |
862,621 |
21 It is settled case-law (see Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 1787, paragraph 23, Joined Cases C-228/90 to C-234/90, C-339/90 and C-353/90 Simba and Others v Ministero delle Finanze [1992] ECR I-3713, paragraph 14, and Case C-130/92 Oto v Ministero delle Finanze [1994] ECR I-3281, paragraph 18) that Article 95 applies only to goods imported from other Member States and, where appropriate, to goods originating in non-member countries which are in free circulation in the Member States. It follows that that provision is not applicable to products imported directly from non-member countries.
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23FOR TRADE WITH NON-MEMBER COUNTRIES , AND AS FAR AS INTERNAL TAXATION IS CONCERNED , THE TREATY ITSELF DOES NOT INCLUDE ANY RULE SIMILAR TO THAT LAID DOWN IN ARTICLE 95 , WHICH APPLIES ONLY TO PRODUCTS COMING FROM THE MEMBER STATES .
ACCORDINGLY - SUBJECT TO THE PROVISIONS OF REGULATIONS OF WHICH THE APPLICATION IS NOT AT ISSUE HERE - THE ANSWER TO THE QUESTION RAISED BY THE NATIONAL COURT DEPENDS UPON THE STATE OF RELATIONS UNDER TREATIES , WHETHER MULTILATERAL OR BILATERAL , BETWEEN THE COMMUNITY AND THE VARIOUS NON- MEMBER COUNTRIES FALLING TO BE CONSIDERED .
| 1 |
862,622 |
22. In that connection, it is to be recalled that, according to settled case-law, although certain restrictions of competition are inherent in collective agreements between organisations representing employers and employees, the social policy objectives pursued by such agreements would be seriously compromised if management and labour were subject to Article 101(1) TFEU when seeking jointly to adopt measures to improve conditions of work and employment (see judgments in Albany , EU:C:1999:430, paragraph 59; International Transport Workers’ Federation and Finnish Seamen’s Union , C‑438/05, EU:C:2007:772, paragraph 49 and 3F v Commission , C‑319/07 P, EU:C:2009:435, paragraph 50).
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49. In that regard, it should be noted that in paragraph 59 of Albany , having found that certain restrictions of competition are inherent in collective agreements between organisations representing employers and workers, the Court nevertheless held that the social policy objectives pursued by such agreements would be seriously undermined if management and labour were subject to Article 85(1) of the EC Treaty (now, Article 81(1) EC) when seeking jointly to adopt measures to improve conditions of work and employment.
| 1 |
862,623 |
55. First of all, in the absence of harmonisation of a profession, Member States remain, in principle, competent to define the exercise of that profession but must, when exercising their powers in this area, respect the basic freedoms guaranteed by the Treaty (see, in particular, Case C-58/98 Corsten [2000] ECR I-7919, paragraph 31; Case C-108/96 Mac Quen and Others [2001] ECR I-837, paragraph 24; and Case C-294/00 Gräbner [2002] ECR I‑6515, paragraph 26).
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Par conséquent, s’il n’est, en principe, pas possible de déduire directement de la non-conformité d’une situation de fait
avec les objectifs fixés à l’article 4 de la directive 2006/21 que l’État membre concerné a nécessairement manqué aux obligations
imposées par cette disposition, à savoir prendre les mesures nécessaires pour s’assurer que les déchets soient gérés sans
mettre en danger la santé humaine et sans que soient utilisés des procédés ou des méthodes susceptibles de porter préjudice
à l’environnement, la persistance d’une telle situation de fait, notamment lorsqu’elle entraîne une dégradation significative
de l’environnement pendant une période prolongée sans intervention des autorités compétentes, peut révéler que les États membres
ont outrepassé la marge d’appréciation que leur confère cet article (voir, mutatis mutandis, arrêt du 16 juillet 2015, Commission/Slovénie,
C‑140/14, non publié, EU:C:2015:501, point 69).
| 0 |
862,624 |
25. Nevertheless, the fact remains that, even on the assumption that the taxable person in question retains such property for a sufficient period of time for all losses to be offset against subsequent positive income and for the acquisition or construction costs of that property to be written down in full, that person – unlike a taxable person resident in Germany who has invested in a property there – is not entitled to have those losses taken into account immediately or to an initially higher rate of depreciation, and is thus deprived of a cash-flow advantage, as has been pointed out by the Commission of the European Communities (see, by way of analogy, Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraphs 84 and 153, and Case C‑347/04 Rewe Zentralfinanz [2007] ECR I‑2647, paragraph 29).
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54. Moreover, that principle and that obligation prohibit the contracting authority from rejecting a tender which satisfies the requirements of the invitation to tender on grounds which are not set out in the tender specifications and which are relied on subsequent to the submission of the tender.
| 0 |
862,625 |
26
It follows from the wording of the first subparagraph of Article 24(1) of Regulation No 1215/2012 that the courts of the Member State in which the property is situated (forum rei sitae) have exclusive jurisdiction to hear and determine actions in matters relating to rights in rem in immovable property. Since that provision essentially reproduces the content of the first subparagraph of Article 22(1) of Regulation No 44/2001, it must be noted that, in so far as Regulation No 1215/2012 replaces Regulation No 44/2001, the Court’s interpretation of the provisions of the latter regulation also applies to Regulation No 1215/2012, whenever the provisions of the two instruments of EU law may be regarded as equivalent (see, by analogy, judgment of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 22 and the case-law cited).
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52 For another thing, the ecological considerations underlying the national legislation at issue do not justify treating the consumption of natural gas or electricity by undertakings supplying services differently than the consumption of such energy by undertakings manufacturing goods. Energy consumption by each of those sectors is equally damaging to the environment.
| 0 |
862,626 |
35. Second, the determination of the full cost to the taxable person must avoid giving a taxable person who uses an asset forming part of his business also for private use an unjustified economic advantage by comparison with a final consumer, which would result from the fact that that taxable person deducted VAT to which he was not entitled (see, to that effect, Wollny , paragraph 35).
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53
Indeed, those principles are based on the premiss that the European arrest warrant concerned has been issued in conformity with the minimum requirements necessary for it to be valid, which include the requirement laid down in Article 8(1)(c) of the Framework Decision.
| 0 |
862,627 |
37. Conversely, it is apparent from the case-law of the Court that the possibility for workers to manage their time without major constraints and to pursue their own interests is a factor capable of demonstrating that the period of time in question does not constitute working time within the meaning of Directive 2003/88 (see, to that effect, judgment in Simap , C‑303/98, EU:C:2000:528, paragraph 50).
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48. There is no need, therefore, to determine whether the other criteria for assessing whether a referring body is a ‘court or tribunal’ for the purposes of Article 267 TFEU are satisfied by the Licensing and Control Authority of the Broadcasting Authority.
| 0 |
862,628 |
50 In those circumstances jurisdiction can, in such a case, be determined solely in accordance with Article 2 of the Brussels Convention, which provides a certain and reliable criterion (Case 32/88 Six Constructions [1989] ECR 341, paragraph 20).
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31. En revanche, une taxe dont le fait générateur n’est pas lié à la procédure d’autorisation générale permettant d’accéder au marché des services de communications électroniques, mais est lié à l’activité de l’opérateur consistant à fournir des services de communications électroniques aux usagers finals en France, ne relève pas du champ d’application de l’article 12 de la directive «autorisation».
| 0 |
862,629 |
20. That limitation on the power of the national court is justified by the principle that, in a civil suit, it is for the parties to take the initiative, and that, as a result, the court is able to act of its own motion only in exceptional cases where the public interest requires its intervention (see van Schijndel and van Veen , paragraph 21 and van der Weerd and Others , paragraph 35).
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31 It is common ground that Article 2(1)(b) of Directive 89/665 does not define the decisions taken unlawfully which a party may ask to have set aside. The Community legislature confined itself to stating that such decisions include those containing discriminatory technical, economic or financial specifications in the documents relating to the contract award procedure in question.
| 0 |
862,630 |
60 In this regard, it is sufficient to point out that decisions concerning the clearance of accounts do not require detailed reasons if they are taken on the basis either of summary reports or of any correspondence between the Member State and the Commission, which implies that the government concerned was closely involved in the process by which the decision came about and is therefore aware of the reason for which the Commission considers that it must not charge the sums in dispute to the EAGGF (Case 347/85 United Kingdom v Commission [1988] ECR 1749, paragraph 60).
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176
Furthermore, Directive 2014/40 is aimed at ensuring a high level of health protection for consumers as a whole and consequently its ability to achieve that aim cannot be assessed solely in relation to a single category of consumers.
| 0 |
862,631 |
33. In view of the nature of the analysis to be carried out and as the Court has already held, it is for the national court to classify the activities at issue in the main proceedings in the light of the criteria adopted by the Court (judgment in Fazenda Pública , C‑446/98, EU:C:2000:691, paragraph 23, and order in Gmina Wrocław , C‑72/13, EU:C:2014:197, paragraph 18).
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45 It should be noted that, under the third subsubparagraph of Article 8(1)(a) of that directive, the competent authorities of the Member State concerned are required immediately to notify the competent authorities of the other Member States and the Commission in writing, by the most appropriate means, of the findings arrived at, the decisions taken and the reasons for such decisions.
| 0 |
862,632 |
70
Finally, as regards the appellants’ argument that the General Court erred in finding, in paragraphs 235, 239 and 298 of the judgment under appeal, that an attempt to reach an agreement already constitutes an infringement of Article 101 TFEU, it should be borne in mind that a ‘concerted practice’, within the meaning of Article 101(1) TFEU, refers to a form of coordination between undertakings which, without having been taken to a stage where an agreement properly so called has been concluded, knowingly substitutes for the risk of competition practical cooperation between them (see, to that effect, judgment of 8 July 1999, Commission v Anic Partecipazioni , C‑49/92 P, EU:C:1999:356, paragraph 115 and the case-law cited).
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42. In those precise circumstances, and in order to ensure the neutrality of taxation, it must be held that, where the Member State has exercised the options provided for in Articles 5(8) and 6(5) of the Sixth Directive, as a result of the fact that, according to those provisions, ‘the recipient shall be treated as the successor to the transferor’, a Vorgründungsgesellschaft, as the transferor, must be entitled to take account of the taxable transactions of the recipient, namely the Aktiengesellschaft, so as to be entitled to deduct the VAT paid on input services which have been procured for the purposes of the recipient’s taxable operations.
| 0 |
862,633 |
73. In those circumstances, it is for the referring court to ascertain whether the abovementioned orders are ordinary in the light of both the previous business relations between the pharmaceuticals company holding a dominant position and the wholesalers concerned and the size of the orders in relation to the requirements of the market in the Member State concerned (see, to that effect, United Brands and United Brands Continentaal v Commission , paragraph 182, and Case 77/77 Benzine en Petroleum Handelsmaatschappij and Others v Commission [1978] ECR 1513, paragraphs 30 to 32).
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39. Second, although the wholesale price which serves as the basis for the evaluation of imported second-hand cars does take account of the type of the vehicle, that is to say, of engine capacity, model and other technical features such as propulsion method, it is nevertheless clear that the scale of depreciation which is then applied in order to determine the taxable value is based on a single criterion, namely the age of the vehicle. Just because there is a condition that the vehicle should have covered more than 6 000 kilometres if it is between 6 and 12 months old does not mean that the scale should be regarded as taking the mileage of a vehicle into account, especially since that represents a threshold of use below which no depreciation is applied if the vehicle is less than a year old.
| 0 |
862,634 |
101. It should be pointed out that, according to settled case-law, categorisation as aid requires that all the conditions set out in Article 87(1) EC be fulfilled (see Case C‑345/02 Pearle and Others [2004] ECR I‑7139, paragraph 32 and the case-law cited therein).
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35 Thus, the fact that the national rules at issue in the main proceedings concern the financing of social security does not exclude the application of Treaty rules, in particular those relating to freedom of movement for workers.
| 0 |
862,635 |
29. In this context, the Court has held that, in the absence of fraud or abuse and subject to adjustments which may be made in accordance with the conditions laid down in Article 185 of Directive 2006/112, the right to deduct, once it has arisen, is retained even if the economic activity envisaged does not give rise to taxed transactions (see INZO , paragraphs 20 and 21; Ghent Coal Terminal , paragraphs 19 to 23; Schloßstrasse , paragraph 42; Case C‑98/98 Midland Bank [2000] ECR I‑4177, paragraph 22; and Fini H , paragraph 22).
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Consequently, the first ground of appeal must be rejected in its entirety as ineffective.
| 0 |
862,636 |
12 As regards the first part of the question, as thus reworded, the Court has consistently held that, under the principle of cooperation laid down in Article 5 of the Treaty, it is for the Member States to ensure the legal protection which individuals derive from the direct effect of Community law. In the absence of Community rules governing a matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, in particular, the judgments in Case 33/76 Rewe v Landwirtschaftskammer fuer das Saarland [1976] ECR 1989, paragraph 5, Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043, paragraphs 12 to 16, Case 68/79 Hans Just v Danish Ministry for Fiscal Affairs [1980] ECR 501, paragraph 25, Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 14, Joined Cases 331/85, 376/85 and 378/85 Bianco and Girard v Directeur Général des Douanes des Droits Indirects [1988] ECR 1099, paragraph 12, Case 104/86 Commission v Italy [1988] ECR 1799, paragraph 7, Joined Cases 123/87 and 330/87 Jeunehomme and EGI v Belgian State [1988] ECR 4517, paragraph 17, Case C-96/91 Commission v Spain [1992] ECR I-3789, paragraph 12, and Joined Cases C-6/90 and C-9/90 Francovich and Others v Italian Republic [1991] ECR I-5357, paragraph 43).
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39 However, bus transport cannot be regarded as an activity based essentially on manpower, as it requires substantial plant and equipment (see, reaching the same conclusion with respect to driveage work in mines, Allen, paragraph 30). The fact that the tangible assets used for operating the bus routes were not transferred from the old to the new contractor therefore constitutes a circumstance to be taken into account.
| 0 |
862,637 |
26. As to those criteria, the Court pointed out in Case C-79/03 Commission v Spain [2004] ECR I-11619, paragraph 36, and Case C-344/03 Commission v Finland [2005] ECR I-0000, paragraph 53, that, according to the document entitled ‘Second report [of the Commission] on the application of Directive 79/409/EEC on the conservation of wild birds’ of 24 November 1993 (COM(93) 572 final), ‘small numbers’ are any sample of less than 1% of the total annual mortality rate of the population in question (average value) for those species which are not to be hunted and a sample in the order of 1% for those species which may be hunted. The Court stated in that regard that those quantities are based on the work of the ORNIS Committee for the Adaptation to Technical and Scientific Progress under the Directive, instituted under Article 16 of the latter and consisting of representatives of the Member States.
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11. The Court has declined jurisdiction where it was obvious that the provision of European Union law referred to the Court for interpretation was incapable of applying (Case C‑567/07 Woningstichting Sint Servatius [2009] ECR I-9021, paragraph 43).
| 0 |
862,638 |
17. According to settled case-law, capital movements include transactions by which non-residents make investments in immovable property in the territory of a Member State, as is clear from the nomenclature of capital movements, set out in Annex I to Council Directive 88/361, which retains its original indicative value for the purposes of defining the notion of capital movements (see, to that effect, Case C‑222/97 Trummer and Mayer [1999] ECR I-1661, paragraph 21; Case C-464/98 Stefan [2001] ECR I-173, paragraph 5; Joined Cases C‑515/99, C‑519/99 to C‑524/99 and C‑526/99 to C‑540/99 Reisch and Others [2002] ECR I‑2157, paragraph 30; and Case C‑386/04 Centro di Musicologia Walter Stauffer [2006] ECR I‑8203, paragraph 22).
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43 A specialist chef performing services for and under the direction of another person for remuneration is bound by an employment relationship covering a genuine and effective economic activity.
| 0 |
862,639 |
32
In that regard, it must be borne in mind that, according to the Court’s settled case-law, for the purposes of interpreting a provision of EU law, it is necessary to consider not only its wording, but also its context and the objectives of the rules of which it is part (judgment of 11 May 2017, Krijgsman, C‑302/16, EU:C:2017:359, paragraph 24 and the case-law cited).
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51 Where, as in the main proceedings, the payment is made into the account of a third party but, because of the existence of a condition precedent, it is not certain that the payment is actually due, the member's obligation to make the payment in question becomes real and undisputed only at the time when that condition is fulfilled. Therefore, it is only as from that time that the said payment is to be regarded as amounting to a contribution within the meaning of Article 4(1)(c) of Directive 69/335.
| 0 |
862,640 |
34. As regards, first of all, Article 20(2)(c) of Directive 93/38, it follows from the case‑law that the application of that provision is subject to two cumulative conditions, namely, first, that there are technical reasons connected to the works which are the subject‑matter of the contract and, second, that those technical reasons make it absolutely necessary to award that contract to a particular contractor (see, to that effect, in the context of Directives 71/305 and 93/37, Case C‑57/94 Commission v Italy , paragraph 24, and Case C‑385/02 Commission v Italy , paragraphs 18, 20 and 21).
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102. Furthermore, the Courts must carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s margin of discretion – either as regards the choice of factors taken into account in the application of the criteria mentioned in the Guidelines or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.
| 0 |
862,641 |
5 IN SUPPORT OF HIS APPLICATION THE APPLICANT CLAIMS THAT SINCE THE CONTESTED JUDGMENT WAS GIVEN HE HAS BECOME AWARE OF DOCUMENTS OF WHICH HE , AND CONSEQUENTLY THE COURT , WERE PREVIOUSLY UNAWARE AND THE CONTENTS OF WHICH PROVE THE VALIDITY OF THE FIRST SUBMISSION PLEADED IN THE ORIGINAL ACTION . THOSE DOCUMENTS , THE CONTENTS OF WHICH WERE REVEALED BY THE MEDIATOR , MR DE GROOTE , WHO WAS HEARD AS A WITNESS ON 20 JUNE 1983 IN THE DISCIPLINARY PROCEEDINGS COMMENCED AGAINST THE APPLICANT IN 1981 , WERE INCLUDED IN A LIST OF DOCUMENTS DRAWN UP ON 27 JUNE 1983 BY THE SECRETARY OF THE DISCIPLINARY BOARD AT THE REQUEST OF THE CHAIRMAN THEREOF .
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28
In order to determine whether the services supplied constitute independent services or a single service it is necessary to examine the characteristic elements of the transaction concerned (judgments of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 32, and of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie, C‑42/14, EU:C:2015:229, paragraph 32).
| 0 |
862,642 |
31. Finally, such an interpretation is consistent with the objective of the provisions of the Sixth Directive relating to determination of the place of taxable transactions, which seek to avoid both double taxation and non-taxation of those transactions (see to this effect, concerning Article 9 of the Sixth Directive, judgment in ADV Allround , C‑218/10, EU:C:2012:35, paragraph 27 and the case-law cited). As the Advocate General observes in point 42 of her Opinion, that interpretation enables the place of supply of goods to be determined unequivocally, and this place establishes which Member State is entitled to the VAT relating to that transaction.
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Il est vrai, ainsi que le souligne la Commission, qu’une demande de renseignements constitue une mesure d’enquête qui est
généralement utilisée dans le cadre de la phase d’instruction qui précède la communication des griefs et a uniquement pour
objet de permettre à la Commission de recueillir les renseignements et la documentation nécessaires pour vérifier la réalité
et la portée d’une situation de fait et de droit déterminée (voir, en ce sens, arrêt Orkem/Commission, 374/87, EU:C:1989:387,
point 21).
| 0 |
862,643 |
26. In so deciding, the Court did not rely on a specific provision of the Staff Regulations but held in paragraphs 45 to 48 of the judgment in My (EU:C:2004:821), referring to the judgment in Commission v Belgium (EU:C:1981:237), that, like the refusal to adopt the measures necessary for the transfer to the Community pension scheme of sums due to be repaid in respect of or the actuarial equivalent of retirement pension rights acquired under the national pension scheme, as provided for by Article 11(2) of Annex VIII to the Staff Regulations, such legislation could impede the recruitment by the EU institutions of national officials with a certain length of service. The Court pointed out that such legislation was liable to discourage employment within such an institution, inasmuch as, by accepting employment with one of them, a worker who was formerly a member of a national pension scheme risked losing the right to benefit under that scheme from an old-age pension to which he would have been entitled had he not accepted that employment. It held that such consequences could not be accepted in the light of the duty of genuine cooperation and assistance which Member States owe the European Union and which finds expression in the obligation laid down in Article 10 EC to facilitate the achievement of its tasks.
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46. That is also the case where a Member State refuses to take into account, for the purposes of entitlement to an early retirement pension under its own scheme, periods of employment under the Community pension scheme.
| 1 |
862,644 |
81. The possibility of excluding anti-competitive conduct from the scope of Articles 81 EC and 82 EC on the ground that it has been required of the undertakings in question by existing national legislation or that the legislation has precluded all scope for any competitive conduct on their part has thus been accepted only to a limited extent by the Court of Justice (see Case 41/83 Italy v Commission [1985] ECR 873, paragraph 19; Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie and Others v Commission [1985] ECR 3831, paragraphs 27 to 29; and Case C‑198/01 CIF [2003] ECR I‑8055, paragraph 67).
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40 Nor do the requirements of Community management entail that the Commission ought necessarily to be able to correct wrong decisions taken in specific cases by the national authorities in connection with management of the quotas, since compliance with the common rules and their uniform application throughout the Member States of the Community can be secured either by proceedings under Article 169 of the Treaty for failure to fulfil obligations or in the course of judicial proceedings brought before national courts, which have available the procedure provided for in Article 177 of the Treaty.
| 0 |
862,645 |
33
With regard, first, to the proceedings at first instance covered by Chapter III of Directive 2013/32, it should be recalled that when the authorities of the Member States take measures which come within the scope of EU law, they are, as a rule, subject to the obligation to observe the rights of defence of addressees of decisions which significantly affect their interests (judgment of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 35, and of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 40).
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19 It follows that Article 11(b) of the Directive must be interpreted as meaning that the prohibition of taxation on debenture loans extends to taxation on the repayment of such loans.
| 0 |
862,646 |
18. Before analysing the legal basis of any exemption of an underwriting guarantee such as that at issue in the main proceedings, it is appropriate to state that that guarantee falls within the scope of the Sixth Directive inasmuch as it constitutes a supply of services effected for consideration within the meaning of Article 2(1) of that directive, having regard to the fact that there is a legal relationship between the issuer and the guarantor and that the commission received by the latter from the issuer represents the value actually given in return for the guarantee supplied to the issuer by the guarantor (see, to that effect, Case C‑16/93 Tolsma [1994] ECR I‑743, paragraph 14; Case C‑172/96 First National Bank of Chicago [1998] ECR I‑4387, paragraph 26; and Case C‑270/09 MacDonald Resorts [2010] ECR I‑0000, paragraph 16).
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14 It follows that a supply of services is effected "for consideration" within the meaning of Article 2(1) of the Sixth Directive, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient.
| 1 |
862,647 |
48
As is apparent from the third recital of the Parent-Subsidiary Directive, that directive seeks, by the introduction of a common tax system, to eliminate any disadvantage to cooperation between companies of different Member States as compared with cooperation between companies of the same Member State and thereby to facilitate the grouping together of companies at EU level. That directive thus seeks to ensure the neutrality, from the tax point of view, of the distribution of profits by a company established in one Member State to its parent company established in another Member State (judgment of 8 March 2017, Wereldhave Belgium and Others, C‑448/15, EU:C:2017:180, paragraph 25 and the case-law cited).
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54. According to unchallenged statements in the documents before the Court, two of the claimants in the main proceedings will receive only 20 and 49% respectively of the benefits to which they were entitled.
| 0 |
862,648 |
31. In the absence of any unifying or harmonising European Union 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 (Case C‑336/96 Gilly [1998] ECR I‑2793, paragraphs 24 and 30; Case C‑307/97 Saint-Gobain ZN [1999] ECR I‑6161, paragraph 57; Case C‑379/05 Amurta [2007] ECR I‑9569, paragraph 17; and Case C‑194/06 Orange European Smallcap Fund [2008] ECR I‑3747, 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 Case C‑513/04 Kerckhaert and Morres [2006] ECR I‑10967, paragraph 23).
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153. However, the appeal must indicate the legal arguments specifically advanced in support of the plea alleging breach of the principle of equal treatment, failing which the plea is inadmissible ( Limburgse Vinyl Maatschappij and Others v Commission , paragraph 618).
| 0 |
862,649 |
61. Moreover, concerning the consequences of the refusal by the addressee of a document to accept it on the ground that that document was not accompanied by a translation in a language which he understands or in the official language of the receiving Member State, the Court has already held, w ith respect to Regulation No 1348/2000, which preceded Regulation No 1393/2007, that it was necessary not to declare the procedure invalid, but to allow, by contrast, the sender to remedy the lack of the required document by sending the requested translation (see, to that effect, judgment in Leffler , C‑443/03, EU:C:2005:665, paragraphs 38 and 53).
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27. Thus, where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (see judgments in Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraph 22, and Torralbo Marcos , C‑265/13, EU:C:2014:187, paragraph 30 and the case-law cited).
| 0 |
862,650 |
32 In Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 1787, at paragraph 10, the Court recalled that Article 227(2) made provision for the Treaty to be applied to the French overseas departments by stages, and in addition it made available the widest powers for the adoption of special provisions commensurate to the specific requirements of those parts of the French territories.
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22. A corollary of the principle of respect for the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved ( Aalborg Portland and Others v Commission , paragraph 68 and the case-law cited).
| 0 |
862,651 |
58. Those requirements are of particular importance in the area of competition, which is characterised by complex factual and legal situations (see Telemarsicabruzzo and Others , paragraph 7; Bettati , paragraph 68; and Albany International , paragraph 39).
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94. So far as concerns, secondly, the right of communication to the public, the Council and several Member States intervening in its support state that the negotiations in question might go beyond the EU acquis by extending, contrary to Article 8(3) of Directive 2006/115, the scope of that right so as to include places accessible to the public without payment of an entrance fee.
| 0 |
862,652 |
19
It is by referring to the relevant provisions of the regulation concerned, interpreted in the light of the objectives of that regulation, that it may be determined whether they prohibit, require or allow Member States to adopt certain implementing measures and, particularly in the latter case, whether the measure concerned comes within the scope of the discretion that each Member State is recognised as having (judgments of 25 October 2012, Ketelä, C‑592/11, EU:C:2012:673, paragraph 37, and of 7 July 2016, Občina Gorje, C‑111/15, EU:C:2016:532, paragraph 36).
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40. The terms ‘access’ and ‘connection’ appear in the Directive with different meanings. The term ‘access’ is linked to the supply of electricity, including inter alia the quality, regularity and cost of the service. It is often used in the context of guaranteeing non‑discriminatory tariffs. Thus, it is stated in recitals 2 and 13 in the preamble to the Directive that access to the network on the basis of tariffs published prior to their entry into force guarantees non‑discriminatory transmission and distribution tariffs, in recital 6 that that access must be non‑discriminatory, transparent and fairly priced, in recital 15 that the intervention of regulatory authorities guarantees non‑discriminatory access to the network and in recital 17 that non‑discriminatory and cost‑reflective balancing mechanisms are necessary in order to ensure effective market access for all market players.
| 0 |
862,653 |
123. En ce qui concerne plus particulièrement la liberté d’exercer une activité économique, la Cour a jugé notamment que, eu égard au libellé de l’article 16 de la Charte, qui se distingue de celui des autres libertés fondamentales consacrées au titre II de celle-ci tout en étant proche de celui de certaines dispositions du titre IV de cette même Charte, cette liberté peut être soumise à un large éventail d’interventions de la puissance publique susceptibles d’établir, dans l’intérêt général, des limitations à l’exercice de l’activité économique (voir arrêt du 22 janvier 2013, Sky Österreich, C‑283/11, point 46).
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39. Such charges may cover only the costs relating to the activities set out in the preceding paragraph, which cannot include expenditure relating to other tasks (see, by analogy, Joined Cases C-392/04 and C-422/04 i-21 Germany and Arcor [2006] ECR I-8559, paragraphs 29, 32, 34 and 35, and, and Telefónica de España , paragraph 23).
| 0 |
862,654 |
28. In that regard, it must first be observed that Article 234 EC is an instrument of judicial cooperation, by means of which the Court provides the national courts with the points of interpretation of Community law which may be helpful to them in assessing the effects of a provision of national law at issue in the disputes before them (see, to that effect, Case C-254/98 TK-Heimdienst [1998] ECR I-151, paragraph 12, and Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99 Reisch and Others [2002] ECR I-2157, paragraph 22).
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À cet égard, le Tribunal a relevé, à bon droit, aux points 49 et 50 de l’arrêt attaqué, que la notion de « difficultés sérieuses »,
dont la présence oblige la Commission à ouvrir la procédure formelle d’examen, revêt un caractère objectif et que le caractère
insuffisant ou incomplet de l’examen mené par cette institution lors de la procédure d’examen préliminaire constitue un indice
de l’existence de difficultés sérieuses.
| 0 |
862,655 |
21 Next, as the Court has repeatedly held, 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 (see in particular Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn Kalmthout [1985] ECR 973, paragraph 11, and Case 122/84 Scrivner v Centre Public d' Aide Sociale de Chastre [1985] ECR 1027, paragraph 18).
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12 In replying to that question it must be borne in mind that the right of nationals of a Member State to enter the territory of another Member State and reside there for the purposes intended by the EEC Treaty is a right conferred directly by that Treaty or, as the case may be, by the provisions adopted for its implementation (see on this point the judgment in Case 249/86 Commission v Germany [1989] ECR 1263, paragraph 9).
| 0 |
862,656 |
55. Thus, where a Member State has a system for preventing or mitigating a series of charges to tax or economic double taxation for dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way (see, to that effect, Case C-315/02 Lenz [2004] ECR I‑7063, paragraphs 27 to 49, and Case C-319/02 Manninen [2004] ECR I‑7477, paragraphs 29 to 55).
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35
The protection conferred by Article 16 covers the freedom to exercise an economic or commercial activity, and the freedom of contract and free competition (judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 42).
| 0 |
862,657 |
32. The Court has interpreted that concept as meaning that it covers the transfer of a business or an independent part of an undertaking including tangible elements and, as the case may be, intangible elements which, together, constitute an undertaking or a part of an undertaking capable of carrying on an independent economic activity, but that it does not cover the simple transfer of assets, such as the sale of a stock of products (see Zita Modes , paragraph 40; SKF , paragraph 37; and Schriever , paragraph 24). It is also important, in order for Article 5(8) of the Sixth Directive to apply, that the transferee intends to operate the business, or the part of the undertaking, transferred and not simply to liquidate the activity concerned immediately ( Zita Modes , paragraph 44, and Schriever , paragraph 37).
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155 However, since the Commission was able to establish that Hüls had participated in meetings between undertakings of a manifestly anti-competitive nature, it was for Hüls to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. The Court of First Instance did not therefore improperly reverse the burden of proof in paragraph 126 of the contested judgment.
| 0 |
862,658 |
38. Next, it should be noted that an implementing regulation must be given, if possible, an interpretation that is consistent with the provisions of the basic regulation and of the international agreements concluded by the Community (see, inter alia, Case C‑61/94 Commission v Germany [1996] ECR I-3989, paragraph 52; SPKR , paragraph 29; and Case C‑76/00 P Petrotub and Republica [2003] ECR I‑79, paragraph 57).
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51. 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 (voir, notamment, arrêt Commission/Grèce, C‑286/08, EU:C:2009:543, point 82).
| 0 |
862,659 |
34. On the other hand, as the Court has also stated, any national of a Member State, irrespective of his place of residence and his nationality, who has exercised the right to freedom of movement for workers and who has been employed in another Member State, falls within the scope of those provisions (see in particular, to that effect, Case C‑419/92 Scholz [1994] ECR I‑505, paragraph 9; Terhoeve , paragraph 27, and Case C‑212/05 Hartmann [2007] ECR I‑6303, paragraph 17).
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40. In such circumstances, the questions referred must be declared inadmissible to the extent that they seek an interpretation of those provisions (see, by analogy, inter alia, Duomo Gpa and Others , paragraph 24).
| 0 |
862,660 |
46. The Court has consistently held that Member States may provide for measures entailing differences of treatment on grounds of age, in accordance with the first subparagraph of Article 6(1) of Directive 2000/78. They enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (see Palacios de la Villa , C‑411/05, EU:C:2007:604, paragraph 68, and Rosenbladt , C‑45/09, EU:C:2010:601, paragraph 41).
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41. It should be recalled in this context that the Member States and, where appropriate, the social partners at national level enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (see Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 63, and Palacios de la Villa , paragraph 68).
| 1 |
862,661 |
24. It must also be emphasised that the Community Courts are in the best position to rule on the validity of Community acts. Under Article 23 of the Statute of the Court of Justice, Community institutions whose acts are challenged are entitled to participate in the proceedings in order to defend the validity of the acts in question. Furthermore, under the second paragraph of Article 24 of that Statute, the Court may require Community institutions which are not participating in the proceedings to supply any information which it considers necessary for the purposes of the case before it (see Foto‑Frost , paragraph 18).
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De surcroît, en vertu du principe de coopération loyale, tel qu’énoncé à l’article 4, paragraphe 3, TUE, les États membres doivent adopter toute mesure visant à assurer la mise en œuvre et le respect du droit de l’Union, et il résulte d’une jurisprudence constante qu’un État membre ne saurait exciper de situations de son ordre interne pour justifier le non-respect des obligations et des délais résultant du droit de l’Union (arrêt du 16 juillet 2015, , C‑140/14, non publié, EU:C:2015:501, points 76 et 77 ainsi que jurisprudence citée).
| 0 |
862,662 |
42 The legality of a Community act cannot depend on retrospective considerations of its efficacy (judgment in Case 40/72 Schroeder v Germany [1973] ECR 125, point 14). Where the Community legislature is obliged to assess the future effects of rules to be adopted and those effects cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question (judgment in Joined Cases C-267 to 285/88 Wuidart and Others v Laiterie Coopérative Eupenoise, a cooperative society, and Others [1990] ECR I-435, paragraph 14).
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61. It follows that the Member States are required to establish the Communities’ entitlement to own resources as soon as their customs authorities are in a position to calculate the amount of duties arising from a customs debt and determine the debtor.
| 0 |
862,663 |
47. With regard, secondly, to the purpose of Directive 2000/13, it is apparent from both the sixth recital in the preamble and from Article 2 that that directive was intended to ensure the information and protection of the ultimate consumer of foodstuffs, in particular as regards the nature, identity, properties, composition, quantity, durability, origin or provenance and method of manufacture or production of those products (see, with regard to Directive 79/112, Dega , paragraph 16).
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16 In that respect, it is apparent from both the sixth recital in the preamble and from Article 2 that the Directive was intended to ensure the information and protection of the ultimate consumer of foodstuffs, in particular as regards the nature, identity, properties, composition, quantity, durability, origin or provenance and method of manufacture or production of those products.
| 1 |
862,664 |
53. As regards the merits of that ground of appeal, it should be pointed out that, according to settled case-law, the distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see Case C‑551/03 P General Motors v Commission [2006] ECR I-3173, paragraph 54; Trubowest Handel and Makarov v Council and Commission , paragraph 32; and Case C-399/08 P Commission v Deutsche Post [2010] ECR I-0000, paragraph 64).
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122
With respect to the rules relating to the security and protection of data retained by providers of electronic communications services, it must be noted that Article 15(1) of Directive 2002/58 does not allow Member States to derogate from Article 4(1) and Article 4(1a) of that directive. Those provisions require those providers to take appropriate technical and organisational measures to ensure the effective protection of retained data against risks of misuse and against any unlawful access to that data. Given the quantity of retained data, the sensitivity of that data and the risk of unlawful access to it, the providers of electronic communications services must, in order to ensure the full integrity and confidentiality of that data, guarantee a particularly high level of protection and security by means of appropriate technical and organisational measures. In particular, the national legislation must make provision for the data to be retained within the European Union and for the irreversible destruction of the data at the end of the data retention period (see, by analogy, in relation to Directive 2006/24, the Digital Rights judgment, paragraphs 66 to 68).
| 0 |
862,665 |
64. In addition, it is important to note that the distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence ( Trubowest Handel and Makarov v Council and Commission , paragraph 32 and the case-law cited).
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47. Furthermore, it is clear from the case-law that the obligations which are based on the affiliation between an association and its members must be regarded as contractual for the purpose of Article 5(1) of the Brussels Convention, on the ground that the membership of a private law association creates between the members close links of the same kind as those which are created between the parties to a contract (see the judgment in Case 34/82 Peters [1983] ECR 987, paragraphs 13 and 15).
| 0 |
862,666 |
48. That does not, however, mean that the Member States may not take account of every factor within the ambit of their rules relating to civil liability provided, none the less, that they exercise their powers in that field in compliance with EU law and, in particular, with Article 3(1) of the First Directive, Article 2(1) of the Second Directive and Article 1 of the Third Directive and that those national rules do not deprive those directives of their effectiveness ( Ruiz Bernáldez , paragraph 19; Candolin and Others , paragraphs 27 and 28; Farrell , paragraph 34; Carvalho Ferreira Santos , paragraphs 35 and 36; and Case C‑409/09 Ambrósio Lavrador and Olival Ferreira Bonifácio [2011] ECR I‑0000, paragraph 28).
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48. The second subparagraph of Article 10(2) departs from that chronological order by providing that, where a payment is to be made on account, the VAT becomes chargeable without the supply having yet taken place. In order for the tax to become chargeable in such a situation, all the relevant information concerning the chargeable event, namely the future delivery or future performance, must already be known and therefore, in particular, as the Advocate General noted in point 100 of his Opinion, when the payment on account is made the goods or services must be precisely identified.
| 0 |
862,667 |
46. Consequently, legislation of a Member State, such as that at issue in the main proceedings, which makes the exercise of an economic activity subject to a licensing requirement and which specifies situations in which the licence is to be withdrawn, constitutes an obstacle to the freedoms thus guaranteed by Articles 49 TFEU and 56 TFEU (see judgment in Costa and Cifone , EU:C:2012:80, paragraph 70).
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18AS IS CLEAR FROM THE FOREGOING AS A WHOLE , THE CLAUSES IN QUESTION WERE ADOPTED OR ACCEPTED BY THE APPLICANT AND THE LATTER COULD NOT HAVE BEEN UNAWARE THAT THEY HAD AS THEIR OBJECT THE RESTRICTION OF COMPETITION BETWEEN ITS CUSTOMERS .
CONSEQUENTLY , IT IS OF LITTLE RELEVANCE TO ESTABLISH WHETHER THE APPLICANT KNEW THAT IT WAS INFRINGING THE PROHIBITION CONTAINED IN ARTICLE 85 .
IN THIS CONNEXION THE OPINION OF A LEGAL ADVISER , ON WHICH IT RELIES , IS NOT A MITIGATING FACTOR .
IT MUST THUS BE HELD THAT THE ACTS PROHIBITED BY THE TREATY WERE UNDERTAKEN INTENTIONALLY AND IN DISREGARD OF THE PROVISIONS OF THE TREATY .
| 0 |
862,668 |
20. In that regard, the Court notes that, in the context of the cooperation between the Court and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequ ent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C‑306/99 BIAO [2003] ECR I‑1, paragraph 88; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 16; and Case C‑260/07 Pedro IV Servicios [2009] ECR I‑0000, paragraph 28).
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52. Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.
| 0 |
862,669 |
43. As the Advocate General has indicated in point 28 of her Opinion, there is nothing in the scheme or purpose of Directive 90/435 to suggest that there is any significant difference between the concepts of ‘refraining from taxing’ and ‘exempting’ the profits received by the parent company, as the Court has used the concept of ‘exempting’ interchangeably with that of ‘refrain[ing] from taxing’ within the meaning of Article 4(1) (see, inter alia, Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraph 53; Test Claimants in the FII Group Litigation , paragraphs 44 and 102; and Banque Fédérative du Crédit Mutuel , paragraph 44).
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45 Furthermore, whilst the foregoing is sufficient for the present action to succeed, it should be recalled that, according to settled case-law, the principle of fiscal neutrality, to which the Commission has also referred, precludes, inter alia, economic operators carrying on the same activities from being treated differently as far as the levying of VAT is concerned (Gregg, cited above, paragraph 20).
| 0 |
862,670 |
38. Inasmuch as it establishes an exception to the general rule, Article 10(a) of Directive 80/987 must be construed narrowly. In addition, it must be interpreted in a way which is compatible with the social purpose of that directive, which is to guarantee employees a minimum level of Community protection in the event of the employer ' s insolvency through payment of outstanding claims resulting from contracts of employment or employment relationships and relating to pay for a specific period (Case C-373/95 Maso and Others [1997] ECR I-4051, paragraph 56; Case C-125/97 Regeling [1998] ECR I-4493, paragraph 20, and Case C-441/99 Gharehveran [2001] ECR I-7687, paragraph 26).
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32. In circumstances such as those at issue in the main proceedings, it must therefore be held that the collection of the goods from ETH’s warehouse by the representative of the first person acquiring the goods must be regarded as the transfer to that person of the right to dispose of the goods as owner, and should be ascribed to the first supply.
| 0 |
862,671 |
59. However, although in preliminary ruling proceedings it is for the national court to establish whether such objective reasons exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see Hill and Stapleton , paragraph 36, Seymour-Smith and Perez , paragraph 68, and Kutz-Bauer , paragraph 52).
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83. À cet égard, force est de constater que, ainsi qu’il ressort clairement des écritures du Royaume de Belgique, ce dernier ne conteste pas que la réglementation de la Région wallonne n’est pas conforme à l’article 4, paragraphe 1, de la directive 85/337, lu en combinaison avec l’annexe I, point 8, sous a), de cette directive. Cet État membre indique, en outre, qu’une procédure de modification de l’arrêté wallon a été engagée afin de répon dre au grief de la Commission. Or, le fait de préciser qu’une nouvelle réglementation est en cours d’adoption afin que cet arrêté assure une transposition correcte desdites dispositions de cette directive corrobore la thèse selon laquelle la réglementation de la Région wallonne en vigueur est incomplète à cet égard (voir, en ce sens, arrêt du 9 décembre 2010, Commission/Espagne, C‑340/09, point 42). En conséquence, il y a lieu de considérer que le grief relatif auxdites dispositions est fondé.
| 0 |
862,672 |
82
Thus, the Court of Justice has held that the aim of the Leniency Notice is to create a climate of uncertainty within cartels in order to encourage the reporting of them to the Commission (judgment in LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 87). That uncertainty arises, inter alia, from the fact that only one cartel participant can obtain full immunity and that, at any moment, the Commission may, on its own initiative, identify the existence of that cartel.
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94. However, it is also apparent from the case-law that, although Article 8(1) of Directive 77/799 does not oblige the tax authorities of the Member States to cooperate when the competent authorities are prevented by their laws or administrative practices from conducting enquiries or from collecting or using information for those States’ own purposes, the fact that it may be impossible to request that cooperation cannot justify refusal of a tax benefit.
| 0 |
862,673 |
29
The legislation of a Member State under which the application of an exemption from inheritance tax depends on the place of residence of the deceased person or of the beneficiary at the time of the death, in the case where it leads to inheritances involving non-residents being subject to a higher tax liability than those involving residents alone, constitutes a restriction on the free movement of capital (see, to that effect, judgments of 17 October 2013 in Welte, C‑181/12, EU:C:2013:662, paragraphs 25 and 26, and of 3 September 2014 in Commission v Spain, C‑127/12, not published, EU:C:2014:2130, paragraph 58).
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98. Such a provision, which is of a purely formal nature and does not justify specifically the use of successive fixed-term employment contracts by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out, carries a real risk that it will result in misuse of that type of contract and, accordingly, is not compatible with the objective of the Framework Agreement and the requirement that it have practical effect ( Adeneler and Others , paragraph 72, and order in Vassilakis and Others , paragraph 91).
| 0 |
862,674 |
28 In view of the difficulties in fact encountered and given the case-law concerning the duty imposed on the Member States and the Community institutions to cooperate genuinely with each other (see Case C-261/99 Commission v France [2001] ECR I-2537, paragraph 24), it cannot be disputed that the period fixed in Article 3 of Decision 97/239 was replaced by that which resulted from the letter of 4 May 1998. That latter date must be regarded as the pertinent one and it must be held that initiatives and measures taken by the Belgian authorities after the date when that period expired cannot be taken into consideration.
The supposed impossibility of recovering the amounts granted
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15 According to the Belgian Government, Directive 89/552 concerns only primary television broadcasting, and does not cover transmission by cable, which is a secondary form of broadcasting, that is to say, the communication of programmes broadcast by an organization other than the originating organization ("retransmission").
| 0 |
862,675 |
26. Finally, it should be recalled that the Court, in assessing the legal status of the national bodies mentioned in Article 2(9) of Directive 89/665, which are responsible for reviewing the award of public contracts, has already confirmed the status as a ‘court or tribunal’ of a number of other national bodies that are in essence comparable to the referring body in the present case (see, inter alia, Dorsch Consult , C‑54/96, EU:C:1997:413, paragraphs 22 to 38; Köllensperger and Atzwanger , C‑103/97, EU:C:1999:52, paragraphs 16 to 25; and Bundesdruckerei , C‑549/13, EU:C:2014:2235, paragraph 22 and the case-law cited).
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16 It must first be considered whether the Tiroler Landesvergabeamt is a court or tribunal within the meaning of Article 177 of the Treaty, and consequently whether the questions are admissible.
| 1 |
862,676 |
45. The Court however held that such private use did not amount to a letting for the purposes of Article 13B(b) of the Sixth Directive ( Seeling , paragraphs 49 to 52).
|
72. Contrary to what Selex maintains, that conclusion also applies with regard to the assistance which Eurocontrol provides to the national administrations, when so requested by them, in connection with tendering procedures carried out by those administrations for the acquisition, in particular, of equipment and systems in the field of air traffic management.
| 0 |
862,677 |
130. Those considerations are in accordance with the case-law of the Court of Justice, according to which the Commission may, in the case of an aid scheme, confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies (see, in particular, Italy and Sardegna Lines v Commission , paragraph 51, Case C‑278/00 Greece v Commission [2004] ECR I‑3997, paragraph 24, and Case C‑148/04 Unicredito Italiano [2005] ECR I‑11137, paragraph 67), in order to determine whether that scheme comprises aid elements.
|
45. Conversely, where the agreements concluded between a principal and its intermediaries confer on or allow them functions which, from an economic point of view, are approximately the same as those carried out by an independent economic operator, because they make provision for those intermediaries to assume the financial and commercial risks linked to sales or the performance of contracts entered into with third parties, such intermediaries cannot be regarded as auxiliary organs forming an integral part of the principal’s undertaking, so that a clause restricting competition which they have entered into may be an agreement between undertakings for the purposes of Article 85 of the Treaty (see, to that effect, Suiker Unie , paragraphs 541 and 542).
| 0 |
862,678 |
92
As regards the principle of equivalence, it should be recalled that observance of that principle requires that a national rule be applied without distinction to procedures based on EU law and those based on national law (judgment of 20 October 2016, Danqua , C‑429/15, EU:C:2016:789, paragraph 30 and the case-law cited).
|
41
It must, however, be ascertained whether there is an alternative measure less prejudicial to the exercise of the rights conferred by Article 21 TFEU which would be equally effective in achieving the objective of preventing the risk of impunity for a person alleged to have committed a criminal offence.
| 0 |
862,679 |
30 The fact that the product is re-exported before being released for consumption in the country of destination therefore rules out the possibility of its being regarded, for the purposes of payment of the differentiated refund, as having been imported within the meaning of Article 5(1) of Regulation No 3665/87 (see Hauptzollamt Hamburg-Jonas v Dimex, paragraph 17, and Anglo Irish Beef Processors International, paragraph 23).
|
17 In order to determine whether the work being done by different persons is the same, it is necessary to ascertain whether, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation (see, to that effect, Case C-400/93 Royal Copenhagen [1995] ECR I-1275, paragraphs 32 and 33).
| 0 |
862,680 |
75. As regards the first part of the fourth ground of appeal, it is settled case-law that, in order to assess whether a mark has acquired distinctive character following the use which has been made of it, the following may also be taken into account: the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant class of persons who, because of the mark, identify goods as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see, to that effect, in relation to Article 3(3) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), a provision which is identical, in substance, to Article 7(3) of Regulation No 40/94, and Joined Cases C-108/97 and C-109/97 Windsurfing Chiemsee [1999] ECR I-2779, paragraph 51, Case C-299/99 Philips [2002] ECR I-5475, paragraph 60, and Case C-353/03 Nestlé [2005] ECR I-6135, paragraph 31).
|
44
As regards the validity of Decision 89/534, first, it should be noted that, in order for an EU measure relating to the VAT system to be compatible with the principle of proportionality, the provisions which it contains must be considered to be appropriate and necessary for the attainment of the objectives which it pursues and to be such as to affect as little as possible the objectives and principles of the Sixth Directive (see, to that effect, judgments of 19 September 2000, Ampafrance and Sanofi, C‑177/99 and C‑181/99, EU:C:2000:470, paragraph 60, and of 29 April 2004, Sudholz, C‑17/01, EU:C:2004:242, paragraph 46).
| 0 |
862,681 |
56. The deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, inter alia, Case C‑137/02 Faxworld [2004] ECR I‑5547, paragraph 37; Investrand , paragraph 22; Securenta , paragraph 25; and SALIX Grundstücks-Vermietungsgesellschaft , paragraph 71).
|
100. En effet, les règles sur lesquelles sont fondés tant la décision litigieuse que l’arrêt Commission/Italie (C‑302/09, EU:C:2011:634) constituent l’expression de l’une des missions essentielles conférées à l’Union en vertu de l’article 2 CE, à savoir l’établissement d’un marché commun, ainsi que de l’article 3, paragraphe 1, sous g), CE, selon lequel l’action de la Communauté comporte un régime assurant que la concurrence n’est pas faussée dans le marché intérieur (voir, en ce sens, arrêt Commission/Espagne, C‑184/11, EU:C:2014:316, point 70 et jurisprudence citée).
| 0 |
862,682 |
57. Given the finding set out in the preceding paragraph, there is no need to rule on the Commission’s claim that the Court should declare that the Italian Republic failed to inform the Commission of the measures referred to in that paragraph, since that Member State did not in fact implement Decision 2006/261 within the time-limits laid down (see Case C‑348/93 Commission v Italy , paragraph 31; Joined Cases C‑485/03 to C‑490/03 Commission v Spain , paragraph 82; Case C‑177/06 Commission v Spain , paragraph 54; Case C‑280/05 Commission v Italy , paragraph 30; and Case C‑214/07 Commission v France , paragraph 67).
|
57 Moreover, Article 1 of the Agreement on social policy (OJ 1992 C 191, p. 91) states that the objectives to be pursued by the Community and the Member States include improved living and working conditions, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combatting of exclusion.
| 0 |
862,683 |
26. According to the Court, the exclusion of non-resident companies from such a scheme is justified in view of the need to safeguard the balanced allocation of the power to impose taxes between the Member States. Since the parent company is at liberty to decide to form a tax entity with its subsidiary and, with equal liberty, to dissolve such an entity from one year to the next, the possibility of including a non-resident subsidiary in the single tax entity would be tantamount to granting the parent company the freedom to choose the tax scheme applicable to the losses of that subsidiary and the place where those losses are taken into account (judgment in X Holding , C‑337/08, EU:C:2010:89, paragraphs 31 to 33).
|
22. In that context, it is settled case-law of the Court that the comparability of a Community situation with an internal situation must be examined having regard to the aim pursued by the national provisions at issue (see, to that effect, Case C‑231/05 Oy AA [2007] ECR I‑6373, paragraph 38).
| 1 |
862,684 |
19. In that regard, it is apparent from the case-law that it is in particular a taxable person’s intention, confirmed by objective evidence, to use an item or a service for business purposes which makes it possible to determine whether, at the time when he carries out the input transaction, the taxable person is acting as such and must therefore be entitled to deduct the VAT payable or paid in respect of that item or services (see, to that effect, Lennartz , paragraph 8 and Case C-400/98 Breitsohl [2000] ECR I-4321, paragraph 34).
|
23. Dans la mesure où la République hellénique cherche à mettre en cause la recevabilité du recours du fait que la Commission n’a pas précisé s’il incombait à cet État membre, en ce qui concerne les modalités de départ à la retraite, de supprimer les conditions moins avantageuses pour les hommes ou d’imposer des conditions plus défavorables aux femmes, il convient de rappeler que, selon une jurisprudence constante, la Commission ne saurait être tenue d’indiquer dans l’avis motivé les mesures qui permettraient d’éliminer le manquement reproché (arrêt du 11 juillet 1991, Commission/Portugal, C‑247/89, Rec. p. I‑3659, point 22). Il en va de même pour la requête introduite devant la Cour.
| 0 |
862,685 |
59. Consequently, where the tax authority has the information necessary to establish that the substantive requirements have been satisfied, it cannot, in relation to the right of the taxable person to deduct that tax, impose additional conditions which may have the effect of rendering that right ineffective for practical purposes (see judgment in Idexx Laboratories Italia , C‑590/13, EU:C:2014:2429, paragraph 40).
|
47. As regards the second justification, relating to the danger that losses would be used twice, it must be accepted that Member States must be able to prevent that from occurring.
| 0 |
862,686 |
29. With regard, firstly, to the plea of inadmissibility raised by the hospital, it is sufficient to state that it is apparent from the order for reference that the national court regards it as established fact that the hospital constitutes a public sector institution attached to the public authorities. It has consistently been held that a directive may be relied on not only against State authorities, but also against organisations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals, such as local or regional authorities or other bodies which, irrespective of their legal form, have been given responsibility, by the public authorities and under their supervision, for providing a public service (Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 31; Case C-188/89 Foster and Others [1990] ECR I-3313, paragraph 19; and Case C‑157/02 Rieser Internationale Transporte [2004] ECR I‑1477, paragraph 24).
|
8. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 30 janvier 2002, Commission/Grèce, C-103/00, Rec. p. I-1147, point 23, et du 10 février 2009, Commission/France, C-224/08, point 9).
| 0 |
862,687 |
106. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, does not satisfy the requirements to state reasons under those provisions (see, in particular, the order in Case C‑174/97 P FFSA and Others v Commission [1998] ECR I‑1303, paragraph 24, and the judgment in Interporc v Commission , cited above, paragraph 16). In reality, such an appeal amounts to no more than a request for a reexamination of the application submitted to the Court of First Instance, a matter which falls outside the jurisdiction of the Court of Justice (see the order in Case C‑26/94 P X v Commission [1994] ECR I‑4379, paragraph 13, and the judgment in Bergaderm and Goupil v Commission , cited above, paragraph 35).
|
58. Therefore, given that the issuing of a European arrest warrant cannot, as such, justify the holding of the requested person for a period the total duration of which exceeds the time necessary to execute that warrant, the executing judicial authority may decide to hold that person in custody, in accordance with Article 6 of the Charter, only in so far as the procedure for the execution of the European arrest warrant has been carried out in a sufficiently diligent manner and in so far as, consequently, the duration of the custody is not excessive.
| 0 |
862,688 |
27. As the referring court stated and as is apparent from the observations submitted to the Court, at present medicinal products placed on the market, in particular for complex diseases, often consist of combinations of active ingredients for multiple therapeutic uses which can be administered to patients in a single preparation. Similarly, vaccines are often developed, in particular having regard to the recommendations of the health authorities of the Member States, in the form of multivalent vaccines ( Medeva, paragraph 33).
|
57. Neither Article 14 of Directive 91/414 nor any other provision of Directive 2003/4 suggests that the balancing of the interests involved, as prescribed in Article 4 of Directive 2003/4, could be substituted by a measure other than an examination of those interests in each individual case.
| 0 |
862,689 |
41. Article 27 of Regulation No 1408/71 concerns a pensioner who is entitled to draw pensions under the legislation of two or more Member States, including that of his Member State of residence, and is entitled to sickness and maternity benefits in that Member State. That article, in conjunction with Article 28 of the regulation, has the purpose of determining, first, the institution responsible for providing persons entitled to a pension with those sickness and maternity benefits and, secondly, the institution responsible for bearing the cost (see, to that effect, judgment in Rundgren , C‑389/99, EU:C:2001:264, paragraphs 43 and 44).
|
46. In that regard, it is settled case-law that the need to provide an interpretation of EU law which will be of use to the national court requires that the national court define the factual and legal context of its questions or, at the very least, that it explain the factual circumstances on which those questions are based (see, in particular, Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraph 22; Case C‑145/03 Keller [2005] ECR I‑2529, paragraph 29; and Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 45).
| 0 |
862,690 |
30. National provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute restrictions on that freedom, even if they apply without regard to the nationality of the workers concerned (see Olympique Lyonnais , paragraph 34).
|
60
In those circumstances, the Court considers, as the Advocate General stated in point 51 of his Opinion, that the payment of a royalty or of a licence fee is a ‘condition of sale’ of the goods being valued where, in the course of the contractual relations between the buyer, or the person related to him, and the seller, the payment of the royalty or of the licence fee is so important to the seller that, without such payment, the seller would not have concluded the sales contract, this being a matter to be determined by the referring court.
| 0 |
862,691 |
162. It is true that, according to the case-law, equivalence between the exemption method and the imputation method does not require that, under the latter method, a tax credit be granted for dividends from non-resident companies that exceeds the level of national taxation ( Test Claimants in the FII Group Litigation , paragraphs 50 and 52). Grant of a tax credit up to the limit of the amount of corporation tax for which the companies receiving the dividends are liable is sufficient to eliminate economic double taxation of the dividends distributed.
|
63
As the General Court correctly noted in paragraph 100 of the judgment under appeal, it is settled case-law of the Court of Justice that the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (judgment of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited).
| 0 |
862,692 |
35. In addition, the Commission has, in exercising the power conferred upon it by the Council for the implementation of Article 24 of the Community Customs Code, a margin of discretion which allows it to define the abstract concepts of that provision with reference to specific working or processing operations (see Case 162/82 Cousin and Others [1983] ECR 1101, paragraph 17).
|
Aux points 117 à 119 de l’arrêt attaqué, le Tribunal a répondu au deuxième moyen du recours d’Odile Jacob, tiré du défaut
de base légale de la décision litigieuse. Il a constaté en substance que, dès lors que le recours introduit devant le Tribunal
contre la décision 2004/422 avait fait l’objet d’un rejet par le Tribunal dans l’arrêt T‑452/04 et que ce rejet avait été
confirmé par la Cour, cette décision continuait de bénéficier d’une présomption de légalité impliquant l’obligation, pour
tous les sujets du droit de l’Union, de reconnaître sa pleine efficacité tant que son illégalité ne serait pas établie (voir,
en ce sens, arrêt Granaria, 101/78, EU:C:1979:38, point 5). Après avoir procédé à une telle constatation, dont le bien-fondé
n’est pas contesté par Odile Jacob et qui n’est entachée d’aucune erreur de droit, le Tribunal a conclu que les paragraphes
10 et 14 des engagements de Lagardère constituaient la base légale de la décision litigieuse.
| 0 |
862,693 |
54. The provisions of directives must be implemented with unquestionable binding force, and with the necessary specificity, precision and clarity, in order to satisfy the requirements of legal certainty. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State ' s obligations flowing from Community law since they maintain, for the persons concerned, a state of uncertainty as regards the extent of their rights and obligations in a field governed by that law (see, to this effect, in particular Case C-80/92 Commission v Belgium [1994] ECR I-1019, paragraph 20, Case C-151/94 Commission v Luxembourg [1995] ECR I-3685, paragraph 18, and Case C-415/01 Commission v Belgium [2003] ECR I-2081, paragraph 21).
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54. Furthermore, that limitation respects the essential contents of the principle of non-discrimination. That limitation does not call into question the principle as such, as it concerns only the question, which is limited in scope, of deferrals from blood donation in order to protect the health of the recipients.
| 0 |
862,694 |
46. More specifically, with regard to the claim that the General Court misconstrued the term ‘a single undertaking’, it must be stated that, in paragraph 58 of the judgment under appeal, the General Court pointed out that, according to the settled case-law of the Court of Justice, in competition law the term undertaking must be understood as designating an economic unit for the purposes of the subject-matter of the agreement in question, even if in law that economic unit consists of several persons, natural or legal (Case‑170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 40; and Akzo Nobel and Others v Commission , paragraph 55).
|
35 Application of Article 30 is subject to the condition that the specific measures which the Commission must adopt are intended to assist transition from national arrangements to the common organization of the market and that they are necessary for that purpose.
| 0 |
862,695 |
44. In the case which gave rise to the judgment in Bolbol , the Fővárosi Bíróság referred to the Court questions formulated in almost identical terms to those of the questions raised in the present reference for a preliminary ruling. However, in that case, since the person concerned had not availed herself of assistance from UNRWA before leaving that agency’s area of operations to apply for asylum in Hungary, the Court found that it was unnecessary to address, first, the circumstances under which such assistance may be said to have ‘ceased for any reason’ or, second, the nature of the benefits conferred by the directive to which the person concerned may ipso facto have been entitled as a result of the cessation of assistance (see, to that effect, Bolbol , paragraphs 55 and 56).
Question 2
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51. Ladite branche introduit ainsi un argument nouveau, consistant à contester le caractère adéquat de la motivation de la décision litigieuse quant à la méthode de calcul utilisée par la Commission pour déterminer le plafond légal de 10 %.
| 0 |
862,696 |
133. As regards, next, Dalmine’s argument that the Court of First Instance incorrectly, and without stating adequate reasons, confirmed the Commission’s application of the Guidelines and the characterisation of the infringement as ‘very serious’, it must be borne in mind that the Commission has a wide discretion and that the method of calculation defined in the Guidelines contains various flexible elements (Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑0000, paragraphs 46 and 47).
|
36. It must therefore be accepted that, in order to establish the likelihood of confusion, it suffices that, because the earlier mark still has an independent distinctive role, the origin of the goods or services covered by the composite sign is attributed by the public also to the owner of that mark.
| 0 |
862,697 |
38
Finally, it should be noted that, according to the Court’s case-law, although the criterion of the nutritional need of the population of a Member State can play a role in its detailed assessment of the risks which the addition of nutrients to foodstuffs may pose for public health, the absence of such a need cannot, by itself, justify a total prohibition, on the basis of Article 36 TFEU, of the marketing of foodstuffs lawfully manufactured and/or marketed in other Member States (see judgments of 5 February 2004, Greenham and Abel, C‑95/01, EU:C:2004:71, paragraph 46; of 2 December 2004, Commission v Netherlands, C‑41/02, EU:C:2004:762, paragraph 69, and of 29 April 2010, Solgar Vitamin’s France and Others, C‑446/08, EU:C:2010:233, paragraph 60).
|
44 Consequently, unlike the rules at issue in the judgments cited above, which in the interests of legal certainty merely limited the retroactive scope of a claim for certain benefits and did not therefore strike at the very essence of the rights conferred by the Community legal order, a rule such as that before the national court in this case is such as to render any action by individuals relying on Community law impossible in practice.
| 0 |
862,698 |
35. The findings of the Court of First Instance in paragraphs 39 to 42 of the judgment under appeal that, first, the level of attention paid by the average consumer to the shape and colour of confectionery is not high, and, second, that the three-dimensional shape of the mark applied for is a basic geometric shape are findings of fact (see, to that effect, Henkel v OHIM , paragraph 56, and Deutsche SiSi-Werke v OHIM , paragraph 47, respectively).
|
30. The Caisse des dépôts et consignations – a public body – under a mandate from the French State, provides administrative, financial and accounting management services for the Commission de régulation de l’énergie, the independent administrative authority responsible for ensuring the proper functioning of the market for electricity and gas in France. The Caisse des dépôts et consignations also determines late payments or defaults in payment by final consumers and reports them to that regulatory authority.
| 0 |
862,699 |
Or, une information qui s’avère incomplète, ambiguë ou trompeuse et qui peut induire le consommateur en erreur ne saurait être protégée au titre de la liberté d’expression et d’information de l’entrepreneur et de la liberté d’entreprendre de celui–ci (voir, en ce sens, arrêt du 17 décembre 2015, Neptune Distribution, C‑157/14, EU:C:2015:823, points 74 à 78).
|
23. As regards the competent institutions of the Member State to which workers are posted, it is clear from the obligations to cooperate arising from Article 10 EC that those obligations would not be fulfilled – and the aims of Article 14(1)(a) of Regulation No 1408/71 and Article 11(1)(a) of Regulation No 574/72 would be thwarted – if the institutions of that Member State were to consider that they were not bound by the certificate and also made those workers subject to their own social security system ( FTS , paragraph 52).
| 0 |
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