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29 In that connection, it should be recalled that, according to the case-law of the Court of Justice, observance of the principle of equivalence implies that the national procedure applies without distinction to actions alleging infringement of Community law and to those alleging infringement of national law, with respect to the same kind of charges or dues. That principle cannot, however, be interpreted as obliging a Member State to extend its most favourable rules of limitation to all actions for repayment of charges or dues levied in breach of Community law (see Case C-231/96 Edis v Ministero delle Finanze [1998] ECR I-4951, paragraph 36; Case C-260/96 SPAC v Ministero delle Finanze [1998] ECR I-4997, paragraph 20; and Case C-228/96 Aprile v Administrazione delle Finanze dello Stato [1998] ECR I-7141, paragraph 20).
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61 THE FORM , CONTENT AND OTHER TERMS OF NOTIFICATION PROVIDED FOR IN PARTICULAR IN ARTICLE 4 OF REGULATION NO 17 ARE GOVERNED BY ARTICLE 4 OF REGULATION NO 27 AS AMENDED BY THE SOLE ARTICLE OF REGULATION NO 1133/68 OF THE COMMISSION OF 26 JULY 1968 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 400 ). IT FOLLOWS FROM THE TERMS OF THAT PROVISION THAT NOTIFICATIONS MUST BE SUBMITTED ON FORM A/B AS SHOWN IN THE ANNEX TO REGULATION NO 1133/68 AND MUST CONTAIN THE INFORMATION ASKED FOR THEREIN .
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32
Therefore, that directive, which is intended to reconcile the interests of employees and the need for balanced economic and social development, aims to ensure, in the context of EU law, a minimum degree of protection for those employees in the event of the insolvency of their employer, without prejudice, in accordance with Article 11 thereof, to more favourable provisions which the Member States may apply or introduce. The level of protection required by that directive for each of the specific guarantees that it establishes must be determined having regard to the words used in the corresponding provision, interpreted, if need be, in the light of the above considerations (see, to that effect, judgment of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraphs 39 to 41).
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24
It is true that, in the judgment of 2 July 2009, SCT Industri (C‑111/08, EU:C:2009:419, paragraph 33), the Court held that an action challenging a transfer of shares in a company made in the course of insolvency proceedings fell within the scope of Regulation No 1346/2000.
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54
Next, it must be recalled that, according to the settled case-law of the Court, both the administrative authorities and the national courts called upon, within the exercise of their respective jurisdiction, to apply provisions of EU law, are under a duty to give full effect to those provisions, if necessary refusing of their own motion to apply any conflicting provision of national law, and it is not necessary for that court to request or to await the prior setting aside of that provision of national law by legislative or other constitutional means (see, to that effect, in relation to administrative authorities, judgments of 22 June 1989, Costanzo, 103/88, EU:C:1989:256, paragraph 31, and of 29 April 1999, Ciola, C‑224/97, EU:C:1999:212, paragraphs 26 and 30, and, in relation to courts, judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraph 24, and of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 34).
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30 Thus it appears from the case-law, first, that all administrative bodies, including decentralised authorities, are subject to that obligation as to primacy, and individuals may therefore rely on such a provision of Community law against them (Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839, paragraph 32).
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37. In the light of that purpose, the concept of ‘re-utilisation’ as used in Article 7 of Directive 96/9 must be construed as referring to any act of making available to the public, without the consent of the database maker, the results of his investment, thus depriving him of revenue which should have enabled him to redeem the cost of the investment (see The British Horseracing Board and Others , paragraph 51). ‘Re-utilisation’ accordingly refers to any unauthorised act of distribution to the public of the contents of a protected database or a substantial part of such contents (see The British Horseracing Board and Others , paragraph 67; Case C‑545/07 Apis-Hristovich [2009] ECR I‑1627, paragraph 49; and Football Dataco and Others , paragraph 20). The nature and form of the process used are of no relevance in this respect ( Football Dataco and Others , paragraph 20).
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25. The Court has, in particular, already held that it must be accepted that, where the goods to be valued were bought free of defects but were damaged before their release for free circulation, the price actually paid or payable must be reduced in proportion to the damage suffered, since it is an unforeseeable reduction in the commercial value of the goods (see Repenning , paragraph 18, and Unifert , paragraph 35).
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47 As regards the meaning of `legal employment' for the purposes of Article 6(1) of Decision No 1/80, it is settled case-law (Sevince, paragraph 30, Kus, paragraphs 12 and 22 and Bozkurt, paragraph 26, cited above) that legal employment presupposes a stable and secure situation as a member of the labour force of a Member State and, by virtue of this, implies the existence of an undisputed right of residence.
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17. As regards the first of those criteria, that is, the existence of an ‘act of communication’, this must be construed broadly (see, to that effect, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraph 193), in order to ensure, in accordance with, inter alia, recitals 4 and 9 in the preamble to Directive 2001/29, a high level of protection for copyright holders.
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862,705 |
97. National legislation prohibiting the use of a geographical name for goods originating in a non-member country which are admitted into free circulation in other Member States where they are lawfully marketed does not, it is true, absolutely preclude the importation of those products into the Member State concerned. It is, however, likely to make their marketing more difficult and thus to impede trade between Member States (see, to that effect, Case C-448/98 Guimont [2000] ECR I-10663, paragraph 26).
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51. Cet objectif, ainsi que la Cour l’a déjà souligné, a notamment pour objet de sauvegarder la symétrie entre le droit d’imposition des bénéfices et la faculté de déduction des pertes (voir arrêts précités Lidl Belgium, point 33, et Philips Electronics UK, point 24), en particulier afin de prévenir que le contribuable choisisse librement l’État membre où faire valoir de tels bénéfices ou de telles pertes (voir, en ce sens, arrêts précités Oy AA, point 56, et Lidl Belgium, point 34).
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16. Article 226 EC is not therefore intended to protect that institution’s own rights. It is for the Commission alone to decide whether or not it is appropriate to bring proceedings against a Member State for a declaration that it has failed to fulfil its obligations, and, depending on the circumstances, because of what conduct or omission those proceedings should be brought (see, to that effect, Case C-431/92 Commission v Germany [1995] ECR I‑2189, paragraph 22; Case C-476/98 Commission v Germany [2002] ECR I‑9855, paragraph 38, and Commission v Germany , cited in paragraph 14 above, paragraph 30).
The action’s want of any purpose
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24. That is the context in which the concept of the supply of a ‘single service’ referred to in Articles 307 and 308 of the VAT Directive must be understood. That concept covers only services which were bought in fro m a third party. In addition, the single service rule relied on by the referring court and referred to in paragraph 12 above, which applies under the normal VAT regime, cannot affect the assessment of that concept in the context of the special VAT scheme applicable to transactions carried out by travel agents.
| 0 |
862,707 |
26. According to the case-law of the Court, removal from customs supervision must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code ( D. Wandel , paragraph 47; Liberexim , paragraph 55; and Case C-337/01 Hamann International [2004] ECR I-1791, paragraph 31).
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En second lieu, et en toute occurrence, la restitution de cette somme ne serait pas inéluctable. En effet, la Cour a admis
dans sa jurisprudence que les juridictions nationales puissent ne pas ordonner la restitution d’une aide d’État illégalement
versée lorsque cette restitution serait inappropriée en raison de circonstances exceptionnelles (voir, en ce sens, arrêt SFEI
e.a., C‑39/94, EU:C:1996:285, points 70 et 71).
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862,708 |
41
That conclusion is not called in question by the fact that the Trinity College Dublin pension fund has in the meantime been transferred to a national authority and the benefits are now funded by the State, since, as the Advocate General observes in point 35 of her Opinion, the Court has stated on several occasions that, for determining whether a pension scheme falls within the concept of ‘pay’, the arrangements for its funding and managment are not conclusive (see, to that effect, judgments of 28 September 1994, Beune, C‑7/93, EU:C:1994:350, paragraph 38; of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 37; of 12 November 2002, Niemi, C‑351/00, EU:C:2002:480, paragraph 43; and of 26 March 2009, Commission v Greece, C‑559/07, EU:C:2009:198, paragraph 46).
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25
The General Court also correctly held, in paragraph 39 of the judgment under appeal, that the adequacy of the statement of reasons of the decision at issue depends ‘on whether or not the putative infringements that the Commission intends to investigate are defined in sufficiently clear terms’.
| 0 |
862,709 |
36 As the Court has frequently held in relation to provisions similar to those in Article 13 of Regulation No 2333/92, designed to prevent any deception of consumers and contained in a number of secondary legislative measures either of general application or sectoral in scope, it is for the national court to assess whether an appellation, brand name or advertising statement may be misleading (see, in particular, Case 94/82 De Kikvorsch [1983] ECR 947; C-313/94 Graffione v Fransa [1996] ECR I-6039; Case C-373/90 X [1992] ECR I-131, paragraphs 15 and 16, and Case C-210/96 Gut Springenheide and Tusky v Oberkreisdirektor Steinfurt [1998] ECR I-0000). In this case, it is for the national court to assess in the light of the circumstances whether, bearing in mind the consumers to whom it is addressed, a brand name or its component parts are liable to be confused with all or part of the description of certain wines. In that respect, it is also apparent from the Court's case-law that the national court must take into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (Gut Springenheide and Tusky, cited above, paragraphs 31 and 32).
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13 WHAT IS MORE IT FOLLOWS FROM THE USE OF THE EXPRESSIONS ' ' AGAINST PAYMENT ' ' AND ' ' EVERYTHING RECEIVED IN RETURN ' ' FIRST THAT THE CONSIDERATION FOR THE PROVISION OF A SERVICE MUST BE CAPABLE OF BEING EXPRESSED IN MONEY , WHICH IS FURTHER CONFIRMED BY ARTICLE 9 OF THE SECOND DIRECTIVE WHICH STIPULATES THAT ' ' THE STANDARD RATE OF VALUE-ADDED TAX SHALL BE FIXED . . . AT A PERCENTAGE OF THE BASIS OF ASSESSMENT ' ' , THAT IS TO SAY AT A CERTAIN PROPORTION OF THAT WHICH CONSTITUTES THE CONSIDERATION FOR THE PROVISION OF SERVICES , WHICH IMPLIES THAT SUCH CONSIDERATION IS CAPABLE OF BEING EXPRESSED IN AN AMOUNT ASSESSED IN MONEY ; SECONDLY THAT SUCH CONSIDERATION IS A SUBJECTIVE VALUE SINCE THE BASIS OF ASSESSMENT FOR THE PROVISION OF SERVICES IS THE CONSIDERATION ACTUALLY RECEIVED AND NOT A VALUE ASSESSED ACCORDING TO OBJECTIVE CRITERIA .
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862,710 |
34. It will thus be for the referring court to classify the products at issue in the main proceedings in the light of the answers provided by the Court to the questions it has referred (judgment in Panasonic Italia and Others , C‑472/12, EU:C:2014:2082, paragraph 33 and the case-law cited).
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5. Scott Paper Company is an American company engaged in the manufacture of paper for sanitary and household use. To enable the construction of a manufacturing plant in France, Bouton Brochard Scott SA – of which Scott SA (‘Scott’), a French subsidiary of the American company, is the successor in title – acting together with the Departément du Loiret and the City of Orléans in accordance with an agreement dated 12 September 1987, entrusted the task of carrying out all the studies and work necessary for the development of the land required for that factory (a plot of approximately 68 hectares) to the Société d’économie mixte pour l’équipement du Loiret (‘Sempel’).
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44 As regards Articles 3(g), 5 and 86 of the Treaty, they could only apply to rules of the kind at issue in the main proceedings if it were proved that such rules placed an undertaking in a position of economic strength enabling it to prevent effective competition from being maintained on the relevant market by placing it in a position to behave to an appreciable extent independently of its competitors, of its customers and ultimately of consumers (Centro Servizi Spediporto, cited above, paragraph 31, and DIP and Others, cited above, paragraph 24).
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51 Further, whilst the recognition and coordination directives seek to achieve a clear separation of the professions of dental practitioner and doctor, there is no indication that the harmonised regime established by those directives also aims at preventing doctors covered by Article 19 of the recognition directive from being registered as doctors, which would in effect remove their right to practise medicine.
| 0 |
862,712 |
48. It should further be noted that the purpose of Article 22(1)(c)(i) of Regulation No 1408/71 is to confer a right to the services in kind provided, on behalf of the competent institution, by the institution of the place where the treatment is provided, in accordance with the provisions of the legislation of the Member State in which the services are provided as if the person concerned were registered with that institution (see Inizan , paragraph 20). The applicability of Article 22 of Regulation No 1408/71 to the situation in question does not mean that the person concerned may not simultaneously have the right under Article 49 EC to have access to healthcare in another Member State under rules on the assumption of costs different from those laid down by Article 22 (see to that effect Case C‑368/98 Vanbraekel and Others [2001] ECR I-5363, paragraphs 37 to 53).
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43 Since the hospital services at issue in the main proceedings fall within the scope of freedom to provide services, it is necessary to go on to consider whether the fact that national legislation does not guarantee a person covered by its social insurance scheme who has been authorised to receive hospital treatment in another Member State in accordance with Article 22(1)(c) of Regulation No 1408/71 a level of payment equivalent to that to which he would have been entitled if he had received hospital treatment in the Member State in which he was insured entails a restriction of freedom to provide services within the meaning of Article 59 of the Treaty.
| 1 |
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62. In that regard, it should be borne in mind that, first, a tax regime which allows losses incurred by a permanent establishment situated in the territory of the Member State concerned to be taken into account in calculating the profits and taxable income of a resident company to which that establishment belongs constitutes a tax advantage, and, secondly, denial of that advantage where the losses are incurred by a permanent establishment situated in a Member State other than that in which that company is established is liable to deter a resident company from carrying on its business through a permanent establishment situated in another Member State, and, therefore, constitutes a restriction prohibited in principle by the provisions of the Treaty that relate to freedom of establishment (see, to that effect, judgment in Lidl Belgium , C‑414/06, EU:C:2008:278, paragraphs 23 to 26).
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61. Since the infringement of Article 47 EU arises from the fact that a measure having legal effects adopted by the Union on the basis of the EU Treaty could have been adopted by the Community, it is also not relevant whether in an area such as development cooperation – which does not fall within the exclusive competence of the Community and in which, therefore, the Member States are not precluded from exercising, individually or collectively, their competences (see, to that effect, Joined Cases C-181/91 and C-248/91 Parliament v Council and Commission [1993] ECR I-3685, paragraph 16, and C-316/91 Parliament v Council [1994] ECR I-625, paragraph 26) – such a measure could have been adopted by the Member States in exercise of their competences.
| 0 |
862,714 |
101. It is important to bear in mind the obligation to state reasons for Community acts. That is a particularly important obligation in the present case. It is for the Commission to state the reasons for its decision and, in particular, to explain the weighting and assessment of the factors taken into account (see, to that effect, Prym and Prym Consumer v Commission , paragraph 87). The Courts must establish of their own motion that there is a statement of reasons.
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49 Nor is it necessary for either the taxable person supplying the goods or performing the service or the other party to the transaction to know the exact amount of the consideration serving as the taxable amount in order for it to be possible to tax a particular type of transaction (Case C-288/94 Argos Distributors v Commissioners of Customs and Excise [1996] ECR I-5311, paragraphs 21 and 22). Consequently, it does not matter that when the transaction is concluded the parties do not know the basis on which VAT will be charged and that it remains unknown, even afterwards, to the recipient of the service.
| 0 |
862,715 |
19. Territorially, the condition as to reputation must be considered to be fulfilled when the Community trade mark has a reputation in a substantial part of the territory of the Community and such a part may, in some circumstances, correspond to the territory of a single Member State (see, to that effect, PAGO International , C‑301/07, EU:C:2009:611, paragraphs 27 and 29).
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35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71.
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862,716 |
35. However, according to the case‑law of the Court, such measures may be justified if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective (see Case C‑19/92 Kraus [1993] ECR I‑1663, paragraph 32; Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 37; Case C‑424/97 Haim [2000] ECR I‑5123 paragraph 57; Case C‑108/96 Mac Quen and Others [2001] ECR I‑837, paragraph 26; and Case C‑243/01 Gambelli and Others [2003] ECR I‑13031, paragraphs 64 and 65).
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39
The powers and functions of the hearing officer for competition proceedings are, in accordance with Article 1(1) of Decision 2011/695, laid down in that decision.
| 0 |
862,717 |
34 As to the Court of First Instance's interpretation of Article 40(4)(d) of the Staff Regulations in paragraphs 36 and 37 of its judgment, it must be recalled, first, that it appears from the case-law of the Court of Justice that, while an institution has a discretion as regards the assessment of whether an official is qualified to fill a post which is vacant, the failure of an institution to reinstate an official where a post capable of being filled by him has fallen vacant shortly after the expiry of his leave on personal grounds nevertheless constitutes a breach of Article 40(4)(d) of the Staff Regulations (Sergy v Commission, paragraphs 13 to 15). The fact that an official has failed to draw the institution's attention to the fact that he was not being reinstated within the normal time is of no relevance for determining the date on which the institution had to comply with Article 40(4)(d) of the Staff Regulations (see Sergy, paragraphs 20 and 21).
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31. It must be borne in mind that the term ‘part’ implies a whole for the operation of which the part is essential ( Peacock , paragraph 21, and Case C-276/00 Turbon International [2002] ECR I-1389, paragraph 30).
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28
As made clear, inter alia, in recitals 69 and 70 of the REACH Regulation, that regulation makes substances ‘of very high concern’ subject to careful attention. Those substances are thus subject to the authorisation scheme laid down in Title VII of that regulation. Article 55 of that regulation states that the objective of the authorisation scheme is ‘to ensure the good functioning of the internal market while assuring that the risks from substances of very high concern are properly controlled and that these substances are progressively replaced by suitable alternative substances or technologies where these are economically and technically viable’ (see, inter alia, judgment of 15 March 2017, Polynt v ECHA, C‑323/15 P, EU:C:2017:207, paragraph 21).
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43 That remuneration, granted in return for, and in recognition of, the work carried out, is intended for trainee medical specialists who participate in all the medical activities of the department where the training is carried out. They devote to that practical and theoretical training all their professional activity throughout the working week or, in the case of a part-time trainee specialist, a significant proportion of the working week.
| 0 |
862,719 |
97. Firstly, with respect to the argument that the disadvantage suffered by a taxpayer such as Mr de Groot in relation to the reduction of tax is to a large extent compensated for by a progressivity advantage, described by the Advocate General at the national court and referred to by the Belgian Government, it is sufficient to state that it is settled case-law that detrimental tax treatment contrary to a fundamental freedom cannot be justified by the existence of other tax advantages, even if those advantages exist (see, with respect to the freedom of establishment, Case 270/83 Commission v France [1986] ECR 273, paragraph 21, Case C-107/94 Asscher [1996] ECR I-3089, paragraph 53, and Saint-Gobain , paragraph 54; with respect to the freedom to provide services, Case C-294/97 Eurowings Luftverkehr [1999] ECR I-7447, paragraph 44; and, with respect to the free movement of capital, Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 61).
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31 Since the criticism formulated by the appellant in that regard is directed against a superabundant ground for the judgment of the Court of First Instance it must be rejected as nugatory.
| 0 |
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22. In that regard, it should be borne in mind that, in accordance with settled case-law, in the context of the cooperation between the Court of Justice of the European Union and the national courts provided for by Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of European Union law, the Court of Justice is bound, in principle, to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑103/08 Gottwald [2009] ECR I‑9117, paragraph 16; and Case C‑82/09 Dimos Agiou Nikolaou [2010] ECR I‑0000, paragraph 14).
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27. Il importe également de rappeler qu’il est de jurisprudence constante qu’un État membre ne saurait exciper de dispositions, de pratiques ou de situations de son ordre juridique interne pour justifier l’inobservation des obligations et des délais prescrits par une directive (voir arrêts du 15 juin 2000, Commission/Grèce, C‑470/98, Rec. p. I-4657, point 11, et du 7 décembre 2000, Commission/Italie, C‑423/99, Rec. p. I-11167, point 10).
| 0 |
862,721 |
61
In that regard, it is clear from the Court’s settled case-law that all measures which prohibit, impede or render less attractive the exercise of the freedom to provide services must be regarded as restrictions of that freedom (see, to that effect, judgments of 17 July 2008, Corporación Dermoestética, C‑500/06, EU:C:2008:421, paragraph 32; of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 45; and of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 21).
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27. In that regard it must be pointed out that a colour per se cannot be presumed to constitute a sign. Normally a colour is a simple property of things. Yet it may constitute a sign. That depends on the context in which the colour is used. None the less, a colour per se is capable, in relation to a product or service, of constituting a sign.
| 0 |
862,722 |
53. According to the Court’s settled case-law, if the judicial review guaranteed by Article 47 of the Charter is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information (Joined Cases C‑372/09 and C-373/09 Peñarroja Fa [2011] ECR I‑1785, paragraph 63, and Case C-430/10 Gaydarov [2011] ECR I-0000, paragraph 41), so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court with jurisdiction, and in order to put the latter fully in a position in which it may carry out the review of the lawfulness of the national decision in question (see, to this effect, Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 15, and Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 337).
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64. Accordingly, by giving the tax payer the choice between immediate recovery or recovery spread over a period of five years, the legislation at issue in the main action does not go beyond what is necessary to attain the objective of the preservation of the balanced allocation of the power to impose taxes between Member States.
| 0 |
862,723 |
43. According to the case-law of the Court, the status of ‘dependent’ member of the family of a holder of a right of residence is the result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence (see, to that effect, in relation to Article 10 of Regulation No 1612/68, Case 316/85 Lebon [1987] ECR 2811, paragraphs 20 to 22).
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28. In the field of freedom to provide services the Court has already recognised that a national tax measure restricting that freedom may constitute a prohibited measure, whether it was adopted by the State itself or by a local authority (see, to that effect, Case C-17/00 De Coster [2001] ECR I-9445, paragraphs 26 and 27).
| 0 |
862,724 |
34 Whilst Article 85(1) of the Treaty does not restrict such an assessment to actual effects alone, in so far as it must also take account of the agreement's potential effects on competition within the common market, an agreement will nevertheless fall outside the prohibition in Article 85 if it has only an insignificant effect on the market (Case C-7/95 P Deere v Commission, cited above, paragraph 76, and Case C-8/95 P New Holland Ford v Commission, cited above, paragraph 91).
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90 According to the settled case-law of the Court, in order to determine whether an agreement is to be considered to be prohibited by reason of the distortion of competition which is its effect, the competition in question should be assessed within the actual context in which it would occur in the absence of the agreement in dispute (see, in particular, Case 56/65 Société Technique Minière [1966] ECR 337 and Case 31/80 L'Oréal v De Nieuwe AMCK [1980] ECR 3775, paragraph 19).
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77. Such verification is required all the more since GQ’s independence in implementing its commercial policy forms part, as is apparent from the Court’s case-law, of the set of relevant factors enabling the appellants to rebut the presumption of RQ’s decisive influence over GQ’s conduct, factors whose character and importance may vary depending on the specific characteristics of each individual case (see, to that effect, Akzo Nobel and Others v Commission , paragraphs 73 and 74).
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73 Thus, as is stated in the 20th and 21st recitals of the preamble to the Directive, an element of the human body may be part of a product which is patentable but it may not, in its natural environment, be appropriated.
| 0 |
862,726 |
26. However, the Court has already held that situations which fall within the scope ratione materiae of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the freedom, as conferred by Article 18 EC, to move and reside within the territory of the Member States (Case C-209/03 Bidar [2005] ECR I-2119, paragraph 33, and Case C‑403/03 Schempp [2005] ECR I-6421, paragraphs 17 and 18).
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42 Even though not defined by the Court since its judgment in Defrenne I, it is true that the term "general categories of workers" can hardly be applied to a particular group of employees such as civil servants, who are distinguished from employees grouped in an undertaking or group of undertakings in a particular sector of the economy, or trade or inter-trade sector, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies.
| 0 |
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32. Finally, as an action for failure to fulfil obligations is objective in nature (see, inter alia, Case C-73/92 Commission v Spain [1993] ECR I-5997, paragraph 19), failure to comply with an obligation imposed by a rule of Community law is itself sufficient to constitute the breach, and the fact that such a failure had no adverse effects is irrelevant (see, inter alia, Case C-392/96 Commission v Ireland [1999] ECR I‑5901, paragraphs 60 and 61, and Case C‑233/00 Commission v France [2003] ECR I-6625, paragraph 62). The argument of the Portuguese Republic that the alleged failure to fulfil obligations did not cause any concrete problem must therefore be rejected.
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62. The French Government's argument that no individual has ever lodged a complaint alleging incorrect application of the first subparagraph of Article 3(2) of Directive 90/313 must be rejected in the light of the Court's case-law, according to which failure to comply with an obligation imposed by a rule of Community law is itself sufficient to constitute the breach, and the fact that such a failure had no adverse effects is irrelevant (see Case C-392/96 Commission v Ireland [1999] ECR I-5901, paragraphs 60 and 61, and Case C-333/99 Commission v France [2001] ECR I-1025, paragraph 37). It also follows that the argument that there has been no known case in practice in which the directive was infringed cannot be accepted (see Case C-131/88 Commission v Germany [1991] ECR I-825, paragraph 9).
| 1 |
862,728 |
38. Thus, Article 11(1)(a) of Directive 90/434 reflects the general Community law principle that abuse of rights is prohibited. Individuals must not improperly or fraudulently take advantage of provisions of Community law. The application of Community legislation cannot be extended to cover abusive practices, that is to say, transactions carried out not in the context of normal commercial operations, but solely for the purpose of wrongfully obtaining advantages provided for by Community law (see, to that effect, Case C‑212/97 Centros [1999] ECR I-1459, paragraph 24; Case C‑255/02 Halifax and Others [2006] ECR I-1609, paragraphs 68 and 69; Case C‑456/04 Agip Petroli [2006] ECR I-3395, paragraphs 19 and 20; and Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I-7995, paragraph 35).
|
24 In contrast, the eighth recital in the preamble to Regulation No 2658/87 provides that `it is essential that the combined nomenclature and any other nomenclature wholly or partly based on it ... should be applied in a uniform manner by all the Member States'. The provisions of the CN must therefore be given an identical interpretation by each of the Member States.
| 0 |
862,729 |
54. It is relevant to add that, for the purposes of interpreting Regulation No 881/2002, account must also be taken of the wording and purpose of Resolution 1390 (2002) which, according to Recital 4 in the preamble to Regulation No 881/2002, that regulation is designed to implement (see, to that effect, Case C‑84/95 Bosphorus [1996] ECR I‑3953, paragraphs 13 and 14, and Case C‑371/03 Aulinger [2006] ECR I‑2207, paragraph 30).
|
32. Moreover, that is the conclusion which emerges also from Joined Cases C‑462/03 and C‑463/03 Strabag and Kostmann [2005] ECR I‑5397, paragraph 37). In that judgment, the Court held that, if a contract does not concern the exercise of one of the activities governed by the sectoral directive, it will be governed by the rules laid down in the directives concerning the award of public supply, works or service contracts, as applicable.
| 0 |
862,730 |
87. In this respect, the Court has had occasion to rule that the exception in the first paragraph of Article 45 EC does not extend to certain activities that are auxiliary or preparatory to the exercise of official authority (see, to that effect, Thijssen , paragraph 22; Commission v Spain , paragraph 38; Servizi Ausiliari Dottori Commercialisti , paragraph 47; Commission v Germany , paragraph 38; and Commission v Portugal , paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, Reyners , paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, Thijssen , paragraphs 21 and 22; Case C‑393/05 Commission v Austria , paragraphs 36 and 42; Commission v Germany , paragraphs 38 and 44; and Commission v Portugal , paragraphs 36 and 41), powers of constraint (see, to that effect, inter alia, Commission v Spain , paragraph 37) or powers of coercion (see, to that effect, Case C‑47/02 Anker and Others [2003] ECR I‑10447, paragraph 61, and Commission v Portugal , paragraph 44).
|
46. In such a case, Community law requires that court to order the measures appropriate effectively to remedy the consequences of the unlawfulness. However, even in the absence of exceptional circumstances, Community law does not impose an obligation of full recovery of the unlawful aid.
| 0 |
862,731 |
76. In that regard, it must be borne in mind that it follows from the case-law that it is not necessary, in order for the conditions for the application of Article 106(2) TFEU to be fulfilled, that the financial balance or economic viability of the undertaking entrusted with the operation of a service of general economic interest should be threatened. It is sufficient that, in the absence of the exclusive rights at issue, it would not be possible for the undertaking to perform the particular tasks entrusted to it, defined by reference to the obligations and constraints to which it is subject, or that maintenance of those rights is necessary to enable the holder thereof to perform tasks of general economic interest which have been assigned to it under economically acceptable conditions (see, to that effect, Albany , paragraph 107; Brentjens’ , paragraph 107; and Drijvende Bokken , paragraph 97).
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6. Articles 223B, 223D and 223F of the CGI provide, inter alia, for the neutrality of intra-group transactions, such as provisions for doubtful claims or risks between the companies in the group, waivers of debt or intra-group payments, provisions for depreciation of shares held in other companies in the group, and the transfer of fixed assets within the group.
The dispute in the main proceedings and the questions referred
| 0 |
862,732 |
33. Next it must be borne in mind that the Court has already held that the fact that personal benefit may be derived by employees from such transport must be regarded as being of only secondary importance compared to the needs of the business (see, to that effect, Fillibeck , paragraph 30).
|
62. For procedures for the control of concentrations governed by the Regulation, that principle is laid down in the second sentence of Article 18(3) and, in more detail, in Article 13(2) of the Implementing Regulation. The latter in substance requires, among other things, that written notice be given to the notifying parties of the Commission’s objections, with an indication to those parties of the period within which they may inform the Commission of their views in writing.
| 0 |
862,733 |
49. Those findings concerning the commercial component of the Convention cannot be called in question by the fact that the Convention tends more to restrict trade in such products than to promote it. As the Commission has rightly pointed out in its written submissions, numerous Community measures have been adopted on the basis of Article 133 EC or, previously, Article 113 of the EC Treaty (now, after amendment, Article 133 EC), even though they were explicitly designed to restrict, or indeed prohibit entirely, imports or exports of certain products (see, in that connection, in particular, Case C-70/94 Werner [1995] ECR I-3189, paragraph 10; Case C-83/94 Leifer [1995] ECR I-3231, paragraph 10; and Case C‑124/95 Centro-Com [1997] ECR I-81, paragraph 26).
|
82. As the Court has pointed out in paragraphs 35 and 36 of the judgment in Castro Verde , Article 6(4) of the directive must, as a derogation from the criterion for authorisation laid down in the second sentence of Article 6(3), be interpreted strictly.
| 0 |
862,734 |
32
In addition, the Court has clarified — indeed, in relation to a provision of EU law expressly allowing the costs relating to the implementation, management and monitoring of a regime for issuing individual licences to be taken into account in calculating administrative costs — that the costs taken into account may not include the expenditure linked to the authority in question’s general supervisory activities (see, to that effect, judgment of 19 September 2006, i-21 Germany and Arcor, C‑392/04 and C‑422/04, EU:C:2006:586, paragraphs 34 and 35).
|
24 In the cases which led to the judgment in Bachmann, cited above, and to the judgment delivered on the same day in Case C-300/90 Commission v Belgium [1992] ECR I-305, there was a direct link between the deductibility of contributions and the taxation of sums payable by insurers under pension and life assurance contracts, and that link had to be maintained to preserve the cohesion of the tax system in question (see C-484/93 Svensson and Gustavsson [1995] ECR I-3955, at paragraph 18; Case C-107/94 Asscher [1996] ECR I-3089, at paragraph 58, and Case C-264/96 ICI [1998] ECR I-4695, at paragraph 29). In the present case, as the Advocate General observes in paragraph 39 of his Opinion, there is no such direct link between any taxation and the deductibility of costs relating to participation in professional training courses.
| 0 |
862,735 |
En effet, ainsi qu’il a déjà été évoqué au point 50 du présent arrêt, en dépit de leur objectif, à savoir exercer une pression
sur la République islamique d’Iran afin que cette dernière mette fin aux activités nucléaires présentant un risque de prolifération
et à la mise au point de vecteurs d’armes nucléaires, ces désignations, entraînant le gel des fonds de personnes ou d’entités,
ont, sur les libertés et les droits fondamentaux de ces personnes et de ces entités, une incidence négative importante liée,
d’une part, s’agissant des personnes, au bouleversement considérable de la vie tant professionnelle que familiale de celles-ci
du fait des restrictions à l’usage de leur droit de propriété et, d’autre part, s’agissant des entités, aux perturbations
qui portent atteinte à leurs activités, notamment économiques (voir, en ce sens, arrêts du 3 septembre 2008, Kadi et Al Barakaat
International Foundation/Conseil et Commission, C‑402/05 P et C‑415/05 P, EU:C:2008:461, point 358 ; du 18 juillet 2013, Commission
e.a./Kadi, C‑584/10 P, C‑593/10 P et C‑595/10 P, EU:C:2013:518, point 132, ainsi que du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 53).
|
Il ressort de la jurisprudence de la Cour que l’article 14 de la directive 1999/31 instaure un régime transitoire dérogatoire
afin de mettre en conformité ces décharges avec les nouvelles exigences environnementales (voir, en ce sens, arrêt Ville d’Ottignies-Louvain-la-Neuve
e.a., C‑225/13, EU:C:2014:245, points 33 et 34).
| 0 |
862,736 |
101. Thirdly, as regards the alleged possibility of having recourse to a measure more appropriate and less restrictive than that provided for by the contested regulation, in order to attain the objectives pursued by the Commission, such as the imposition of a minimum sale price, it must be observed that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 13; Joined Cases C‑133/93, C-300/93 and C-362/93 Crispoltoni and Others [1994] ECR I-4863, paragraph 41; Antillean Rice Mills and Others v Commission , cited above, paragraph 52; and Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81).
|
59 It is for the national court to ascertain, in the light of the foregoing considerations, whether in the present case the contested condition is actually necessary to ensure road safety and/or protection of the environment, and whether the resulting restriction is not disproportionate to those objectives, particularly in the sense that no other, less restrictive, measures are available.
| 0 |
862,737 |
42. The term ‘undertaking’ within the meaning of Article 1(1) of Directive 77/187 covers any economic entity organised on a stable basis, whatever its legal status and method of financing. Any grouping of persons and assets enabling the exercise of an economic activity pursuing a specific objective and which is sufficiently structured and independent will therefore constitute such an entity (Joined Cases C‑127/96, C‑229/96 and C‑74/97 Hernández Vidal and Others [1998] ECR I‑8179, paragraphs 26 and 27; Case C‑175/99 Mayeur [2000] ECR I‑7755, paragraph 32; Abler and Others , paragraph 30; see also, with regard to Article 1(1) of Directive 2001/23, Case C‑458/05 Jouini and Others [2007] ECR I‑7301, paragraph 31, and Case C‑151/09 UGT FSP [2010] ECR I‑0000, paragraph 26).
|
20 As regards the question whether Article 119 may be relied on against the trustees of an occupational pension scheme, the Court in the Barber judgment, after finding that pensions paid under such schemes fall within the scope of Article 119, held that this conclusion remains valid even where the scheme has been set up in the form of a trust and is administered by trustees who are formally independent of the employer, since Article 119 also applies to consideration received indirectly from the employer (paragraphs 28 and 29).
| 0 |
862,738 |
27. It should be noted at the outset that it is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the combined nomenclature and of the notes to the sections or chapters (see, inter alia, DFDS , paragraph 27; Case C‑495/03 Intermodal Transports [2005] ECR I‑8151, paragraph 47; and Case C-445/04 Possehl Erzkontor [2005] ECR I-10721, paragraph 19).
|
La question de savoir si la motivation d’un arrêt du Tribunal est contradictoire ou insuffisante constitue une question de droit pouvant être, en tant que telle, invoquée dans le cadre d’un pourvoi (voir, notamment, arrêt du 26 mai 2016, Rose Vision/Commission, C‑224/15 P, EU:C:2016:358, point 26 et jurisprudence citée).
| 0 |
862,739 |
40. According to settled case-law, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (Case C-311/97 Royal Bank of Scotland [1999] ECR I-2651, paragraph 19; Case C-319/02 Manninen [2004] ECR I-7477, paragraph 19; and Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 29).
|
19 On 23 April 1996 the Commission sent a letter to the CVMP informing it of its decision to stay the procedure for including somatosalm in Annex II until further scientific information had been obtained. It explained that there had been a certain amount of opposition to somatosalm in the Adaptation Committee because the substance could be used to boost growth. It therefore asked the CVMP for a further opinion as to whether abuses of the product were possible.
| 0 |
862,740 |
86
The General Court’s finding that there is a lack of evidence of the appellants’ participation in the compensation mechanism and the monitoring system is not capable, in accordance with the first paragraph of Article 264 TFEU, of leading to the annulment of the contested decision in its entirety, since those elements were ancillary components of the infringement in question. The fact that the Commission failed to adduce evidence of such participation on the part of the appellants does not alter the substance of the contested decision, in so far as the single and continuous infringement established by the Commission consists, as is apparent from paragraphs 12 and 13 of the present judgment, essentially of two groups of principal infringements, namely market sharing and price coordination (see, to that effect, judgment in Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraphs 36 to 38).
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74. It follows that, since observance of the principle of equivalence requires the application without distinction of a national rule to actions based on infringement of EU law and those based on infringements of national law, that principle is not relevant to a situation such as that at issue in the main proceedings, which concerns two types of actions, both based on an infringement of EU law.
| 0 |
862,741 |
46. As regards application of the principle of effectiveness, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis, the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration (see Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen [1995] ECR I-4705, paragraph 19).
|
21. The objective of Directive 97/81 and the framework agreement is, first, to promote part-time work and, secondly, to eliminate discrimination between part-time workers and full-time workers.
| 0 |
862,742 |
42. Regarding the evidence that Mr Ipatau’s listing was well founded, it should be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include a person’s name in the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails, in this instance, a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (see, to that effect, judgments in Commission and Others v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119; Council v Manufacturing Support & Procurement Kala Naft , C‑348/12 P, EU:C:2013:776, paragraph 73; Anbouba v Council , C‑605/13 P, EU:C:2015:247, paragraph 45; and Anbouba v Council , C‑630/13 P, EU:C:2015:248, paragraph 46).
|
5 From 1 January 1979, the date of entry into force of the Sixth Directive, until 30 June 1982, diesel used as fuel for the operation of vehicles and machines on the purchase of which no VAT was deductible was excluded from the right to deduct VAT.
| 0 |
862,743 |
28. To those ends, Article 3(1) of the First Directive, as amplified and supplemented by the Second and Third Directives, requires the Member States to ensure that civil liability in respect of the use of motor vehicles normally based in their territory is covered by insurance, and specifies, inter alia, the types of damage and the third parties who have been victims of an accident to be covered by that insurance (see, to that effect, Case C‑348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I‑6711, paragraphs 25 to 27, and Case C‑484/09 Carvalho Ferreira Santos [2011] ECR I‑0000, paragraphs 25 to 27).
|
90 In the present case, the Italian laws on TWECs amount to an aid programme. The contested decision contains the requisite analysis of the programme and its effects.
| 0 |
862,744 |
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).
|
57. In that regard, it should be recalled that Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community (see, in particular, Case C-341/95Bettati [1998] ECR I-4355, paragraph 20).
| 1 |
862,745 |
134. The essence of effective judicial protection must be that it should enable the person concerned to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is retroactively erased from the legal order and is deemed never to have existed, that the listing of his name, or the continued listing of his name, on the list concerned was vitiated by illegality, the recognition of which may re‑establish the reputation of that person or constitute for him a form of reparation for the non-material harm he has suffered (see, to that effect, Abdulrahim v Council and Commission , paragraphs 67 to 84).
– The errors of law affecting the judgment under appeal
|
45
Thirdly, concerning the aim of Directive 2003/88, it should be pointed out that its purpose is effectively to protect the safety and health of workers. In light of that essential objective each employee must in particular enjoy adequate rest periods (judgments of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 92, and of 23 December 2015, Commission v Greece, C‑180/14, not published, EU:C:2015:840, paragraph 51). To that end, the first paragraph of Article 5 provides for a minimum uninterrupted weekly rest period for the benefit of every worker.
| 0 |
862,746 |
27. As the Court has already held in Case C‑444/93 Megner and Scheffel [1995] ECR I‑4741, paragraphs 18 to 21 and 29, while a person in minor employment of the kind referred to in the national court’s question has the status of worker within the meaning of Article 39 EC, social policy is, in the current state of Community law, a matter for the Member States, who have a wide discretion in exercising their powers in that respect. However, that wide discretion cannot have the effect of undermining the rights granted to individuals by the provisions of the EC Treaty in which their fundamental freedoms are enshrined (see, with reference to Article 39 EC, Case C‑18/95 Terhoeve [1999] ECR I‑345, paragraph 44, and Case C‑208/05 ITC [2007] ECR I‑0000, paragraphs 39 and 40, and, by analogy, concerning equal treatment of men and women workers, Megner and Scheffel , and Case C‑77/02 Steinicke [2003] ECR I‑9027, paragraphs 61 and 63).
|
77. The Commission adds that the second statement of objections makes it clear that TKS was assuming responsibility for Thyssen’s conduct before the latter’s activities were transferred on 1 January 1995, in the same way as it had accepted responsibility for action taken by Krupp.
| 0 |
862,747 |
74. Similarly, having observed that it follows from Articles 2 and 22 of the Sixth VAT Directive and from Article 10 EC that every Member State is under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory, and stated that, under the common system of VAT, Member States are required to ensure compliance with the obligations to which taxable persons are subject and that they enjoy in that respect a certain measure of latitude, inter alia, as to how they use the means at their disposal, the Court of Justice has added that that latitude is nevertheless limited, in particular, by the obligation to ensure effective collection of the Community’s own resources (Case C‑132/06 Commission v Italy [2008] ECR I‑5457, paragraphs 37 to 39).
|
28 It follows from those observations that the "imperviousness" of a selective distribution system is not a condition of its validity under Community law.
| 0 |
862,748 |
30. It must be pointed out in that connection that, unlike the scheme provided for under Article 6(1) of Decision No 1/80, which is based on legal employment for certain periods, the relevant criterion for the first paragraph of Article 7 of that decision to apply is thus lawful residence with the Turkish migrant worker. After so residing for a certain period of time, the person concerned receives the right to work, but the first paragraph of Article 7 does not, however, impose an obligation to do so or make it a condition for the acquisition of a right guaranteed by Decision No 1/80 (see, to that effect, inter alia, Case C-373/03 Aydinli [2005] ECR I-6181, paragraphs 29 and 31; Case C-325/05 Derin [2007] ECR I-6495, paragraph 56; and Case C‑453/07 Er [2008] ECR I-7299, paragraphs 31 to 34). The situation of a Turkish national such as the person at issue in the main proceedings with regard to employment is therefore irrelevant.
|
101. Consequently, the disputed tax cannot be justified on the ground of combating tax evasion.
| 0 |
862,749 |
37 Lastly, it follows from consistent case-law since Francovich I, cited above, at paragraphs 41 to 43, that, subject to the foregoing, it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss or damage caused; further, the conditions for reparation of loss or damage laid down by national law must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation.
|
39. For the sake of completeness, it must be noted that, as recitals 3, 21 and 24 in the preamble to Regulation No 1782/2003 make clear, environmental protection forms part of the objectives of the single payment scheme. The Court has also held that environmental protection, one of the essential objectives of the European Union, must be regarded as forming part of the common agricultural policy (Case C-428/07 Horvath [2009] ECR I-6355, paragraph 29). Moreover, Article 2 point (1) of Regulation No 796/2004 expressly provides that arable land, and consequently agricultural areas pursuant to Article 2(a) of Regulation No 795/2004, is land maintained in good agricultural and environmental condition within the meaning of Article 5 of Regulation No 1782/2003.
| 0 |
862,750 |
51. Furthermore, and above all, the European Union legislation on the coordination of national social security legislations, taking account in particular of its underlying objectives, cannot, except in the case of an express exception in conformity with those objectives, be applied in such a way as to deprive a migrant worker, or those claiming under him, of benefits granted under the legislation of a single Member State on the basis solely of the insurance periods completed under that legislation (see, to that effect, in particular, Case 9/67 Colditz [1967] ECR 229, 234; Case 100/78 Rossi [1979] ECR 831, paragraph 14; Schwemmer , paragraph 58 and the case-law cited, and Case C-388/09 da Silva Martins [2011] ECR I-0000, paragraph 75).
|
38 It must be acknowledged, as the Commission pointed out, that the objective of guaranteeing the quality of skilled trade work and of protecting those who have commissioned such work is an overriding requirement relating to the public interest capable of justifying a restriction on freedom to provide services.
| 0 |
862,751 |
43. In that event, a company which has its seat in Hungary and has a place of business in another Member State is, as regards the advantage identified in paragraph 40 of this judgment, in a less favourable position than a company which restricts its activity to Hungarian territory alone (see, by analogy, Lidl Belgium , paragraph 25, and Filipiak , paragraph 67).
|
39. For the sake of completeness, it must be noted that, as recitals 3, 21 and 24 in the preamble to Regulation No 1782/2003 make clear, environmental protection forms part of the objectives of the single payment scheme. The Court has also held that environmental protection, one of the essential objectives of the European Union, must be regarded as forming part of the common agricultural policy (Case C-428/07 Horvath [2009] ECR I-6355, paragraph 29). Moreover, Article 2 point (1) of Regulation No 796/2004 expressly provides that arable land, and consequently agricultural areas pursuant to Article 2(a) of Regulation No 795/2004, is land maintained in good agricultural and environmental condition within the meaning of Article 5 of Regulation No 1782/2003.
| 0 |
862,752 |
46 However, that provision cannot restrict the right to effective judicial protection. The requirement of judicial control of any decision of a national authority reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Case 222/86 Unectef v Heylens [1987] ECR 4097, paragraph 14, and Case C-97/91 Oleificio Borelli v Commission [1992] ECR I-6313, paragraph 14).
|
62. Accordingly, by systematically exempting works and development programmes and projects which are subject to a declaratory system from the procedure of assessment of their implications for the site, the French Republic has failed to fulfil its obligations under Article 6(3) of the Habitats Directive.
The third complaint: failure to examine alternative solutions
– Arguments of the parties
| 0 |
862,753 |
56. It is true that the Court has also held that, where the European Union intends to implement a particular obligation assumed in the context of the agreements concluded in the context of the World Trade Organization (‘the WTO agreements’) or where the EU act at issue refers explicitly to specific provisions of those agreements, the Court should review the legality of the act at issue and the acts adopted for its implementation in the light of the rules of those agreements (see judgments in Fediol v Commission , EU:C:1989:254, paragraphs 19 to 23; Nakajima v Council , EU:C:1991:186, paragraphs 29 to 32; Germany v Council , C‑280/93, EU:C:1994:367, paragraph 111; and Italy v Council , C‑352/96, EU:C:1998:531, paragraph 19).
|
44. It is not a priori inconceivable that those shareholders may be able to provide relevant documentary evidence enabling the tax authorities of the Member State of taxation to ascertain, clearly and precisely, the reality and nature of tax deductions made in other Member States (see, by analogy, Laboratoires Fournier , paragraph 25 and Persche , paragraph 53).
| 0 |
862,754 |
19. Regulations imposing an anti-dumping duty, although by their nature and scope of a legislative nature, may be of direct and individual concern to those producers and exporters of the product in question who are charged with practising dumping on the basis of information originally from their business activities. Generally, that is the case with those exporters and producers who are able to establish that they were identified in the measures adopted by the Commission and Council or were concerned by the preliminary investigations (see judgments in Allied Corporation and Others v Commission , 239/82 and 275/82, EU:C:1984:68, paragraphs 11 and 12; Nachi Europe , C‑239/99, EU:C:2001:101, paragraph 21; and in addition Valimar , C‑374/12, EU:C:2014:2231, paragraph 30).
|
25. At the outset, it should be borne in mind that, according to the Court’s settled case-law, in the interests of legal certainty and for ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and the notes to the sections or chapters (see, inter alia, Case C‑142/06 Olicom [2007] ECR I‑6675, paragraph 16; Case C‑376/07 Kamino International Logistics [2009] ECR I‑1167, paragraph 31; and Joined Cases C‑288/09 and C‑289/09 British Sky Broadcasting Group and Pace [2011] ECR I‑0000, paragraph 60).
| 0 |
862,755 |
77
In any event, such an assessment of the evidence cannot — unless the clear sense of the evidence has been distorted, which has not been claimed in this case — be challenged in an appeal (see, to that effect, judgments of 13 January 2011, Media-Saturn-Holding v OHIM, C‑92/10 P, not published, EU:C:2011:15, paragraph 27; of 10 July 2014, Greece v Commission, C‑391/13 P, not published, EU:C:2014:2061, paragraphs 28 and 29; and of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 40).
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27. À titre liminaire, il convient de rappeler qu’il résulte des articles 256 TFUE et 58, premier alinéa, du statut de la Cour de justice de l’Union européenne que le pourvoi est limité aux questions de droit. Le Tribunal est, dès lors, seul compétent pour constater et apprécier les faits pertinents. L’appréciation de ces faits ne constitue donc pas, sous réserve du cas de leur dénaturation, une question de droit soumise, comme telle, au contrôle de la Cour dans le cadre d’un pourvoi (voir, notamment, arrêt du 2 septembre 2010, Calvin Klein Trademark Trust/OHMI, C‑254/09 P, non encore publié au Recueil, point 49 et jurisprudence citée).
| 1 |
862,756 |
27 The procedure for references for a preliminary ruling under Article 234 EC entails close cooperation between the national courts and the Court of Justice based on the assignment to each of different functions (Case C-236/98 JämO [2000] ECR I-2189, paragraph 30) and constitutes an instrument by means of which the Court provides the national courts with such interpretation of Community law as is necessary for them to give judgment in the cases upon which they are called to adjudicate (Case C-403/98 Monte Arcosu [2001] ECR I-103, paragraph 21).
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68. A law such as the Law establishing the Land Berlin transitional system thus appears suited to achieving the aim pursued, that is to say, to ensure the preservation of acquired rights.
| 0 |
862,757 |
79. It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, in particular, Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23, and Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 10).
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16 IN THIS RESPECT , THE SECOND DIRECTIVE DOES NOT CONTAIN EXPLICIT GUIDANCE FOR DEFINING UNIFORMLY AND PRECISELY THE REQUIREMENTS WHICH MUST BE SATISFIED CONCERNING DURABILITY AND VALUE , TOGETHER WITH THE RULES APPLICABLE FOR WRITING OFF , IN ORDER THAT AN OBJECT MAY BE CLASSIFIED AS CAPITAL GOODS FOR THE PURPOSES OF THE PROVISIONS AT ISSUE .
| 0 |
862,758 |
À cet égard, il convient de rappeler que, s’il incombe à la Commission d’établir l’existence de ce manquement, les États membres
sont tenus, en vertu de l’article 4, paragraphe 3, TUE, de lui faciliter l’accomplissement de sa mission, consistant notamment,
selon l’article 17, paragraphe 1, TUE, à veiller à l’application des dispositions du traité FUE ainsi que des dispositions
prises par les institutions de l’Union européenne en vertu de celui-ci. Notamment, la Commission ayant fourni suffisamment
d’éléments faisant apparaître certains faits situés sur le territoire de l’État membre défendeur, il incombe à celui-ci de
contester de manière substantielle et détaillée les données ainsi présentées et les conséquences qui en découlent (voir notamment,
en ce sens, arrêt Commission/Slovénie, C‑140/14, EU:C:2015:501, points 38, 39 et 42 ainsi que jurisprudence citée).
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45. BGL ' s rights and obligations are governed simultaneously by the TIR Convention, Community law and the guarantee contract, subject to German law, which it concluded with the Federal Republic of Germany.
| 0 |
862,759 |
21. In that regard, the Court has already had occasion to rule that, while, under an arbitration clause entered into pursuant to Article 272 TFEU, the Court may be called on to decide a dispute on the basis of the national law governing the contract, its jurisdiction to determine a dispute concerning that contract falls to be determined solely with regard to Article 272 TFEU and the terms of the arbitration clause, and this cannot be affected by provisions of national law which allegedly exclude its jurisdiction (see judgments in Commission v Zoubek , 426/85, EU:C:1986:501, paragraph 10, and Commission v Feilhauer , C‑209/90, EU:C:1992:172, paragraph 13).
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51. That interpretation of the concept of ‘redundancy’ for the purposes of the Directive follows from the aim pursued by the latter and from the background to the provision at issue.
| 0 |
862,760 |
68. Notwithstanding that finding, it must be borne in mind that, according to settled case-law, Community law cannot be relied on for abusive or fraudulent ends (see, in particular Case C-367/96 Kefalas and Others [1998] ECR I-2843, paragraph 20; Case C-373/97 Diamantis [2000] ECR I-1705, paragraph 33; and Case C-32/03 Fini H [2005] ECR I-1599, paragraph 32).
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30. It must be emphasised here that that special rule was introduced in the Implementing Regulation when it was amended by Regulation No 1041/2005, which, according to recital 7 thereof, seeks to specify clearly the legal consequences of procedural deficiencies in the opposition proceedings. That statement confirms that the consequences, before the Board of Appeal, of the delay in the submission of evidence before the Opposition Division must be determined on the basis of that rule.
| 0 |
862,761 |
25
Furthermore, recalling the wording of paragraph 15 of the judgment of 9 October 2008 in Interboves (C‑277/06, EU:C:2008:548), as well as point 18 of the Opinion of Advocate General Mengozzi in Interboves (C‑277/06, EU:C:2008:162), the referring court is of the opinion that that provision lays down an intermediate rest period which must be of at least one hour, but which may exceed that length of time. It takes the view that the general rule enshrined in point (a) of the second paragraph of Article 3 of Regulation No 1/2005, that all necessary arrangements must be made in advance of the journey to minimise the length of the journey and meet the animals needs during the journey, was made specific by the EU legislator, as regards the transport by road of cattle, in the rule laid down by Annex I, Chapter V, point 1.4(d) to that regulation, which provides for an intermediate rest period of at least one hour, and not of one hour as recommended by the Commission.
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123. It should be noted, however, that the question whether — and, if so, to what extent — the restriction of the territorial scope of the legislation at issue in the main proceedings is apparent from the wording of that legislation pertains to the interpretation of that legislation and accordingly falls under the exclusive jurisdiction of the national courts (see, to that effect, inter alia, ČEZ , C‑115/08, EU:C:2009:660, paragraph 57 and the case-law cited).
| 0 |
862,762 |
38. In that regard, the Court has stated that, even if the element common to the marks at issue cannot be regarded as dominating the overall impression, it must be taken into account in the assessment of the similarity of those marks, to the extent that it constitutes in itself the earlier mark and retains an independent distinctive role in the trade mark consisting, inter alia, of that element, for which registration is sought. Where a common element retains an independent distinctive role in the composite sign, the overall impression produced by that sign may lead the public to believe that the goods or services at issue come, at the very least, from companies which are linked economically, in which case a likelihood of confusion must be held to be established (judgment in Medion , C‑120/04, EU:C:2005:594, paragraphs 30 and 36, and order in ecoblue v OHIM and Banco Bilbao Vizcaya Argentaria , C‑23/09 P, EU:C:2010:35, paragraph 45).
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55. It follows that, when the Commission imposes sanctions on the unlawful conduct of an undertaking, even conduct originating in an international cartel, it seeks to safeguard the free competition within the common market which constitutes a fundamental objective of the Community under Article 3(1)(g) EC. On account of the specific nature of the legal interests protected at Community level, the Commission’s assessments pursuant to its relevant powers may diverge considerably from those by authorities of non-member States.
| 0 |
862,763 |
80. According to settled case-law, the European Union legislature enjoys a wide discretionary power in matters concerning agriculture, including fisheries, corresponding to the political responsibilities given to it by Articles 40 TFEU to 43 TFEU. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretionary power (see, to that effect, Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 80; Case C-304/01 Spain v Commission , paragraph 23; and Case C‑535/03 Unitymark and North Sea Fishermen’s Organisation [2006] ECR I‑2689, paragraph 55).
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31. According to Annex II to the agreement, an express road is a road reserved for motor traffic accessible only from interchanges or controlled junctions and on which stopping and parking are prohibited on the running carriageway(s). It does not follow from that definition that roads sited in urban areas would a priori be excluded. On the contrary, unless roads in built-up areas are expressly excluded, the words ‘express roads’ cover urban roads which have the characteristics set out in that annex.
| 0 |
862,764 |
34. En matière de restitution d’impôts nationaux indûment perçus, la Cour a déjà jugé qu’un délai national de forclusion de trois ans qui court à compter de la date du paiement contesté apparaît raisonnable (voir arrêts du 17 novembre 1998, Aprile, C‑228/96, Rec. p. I‑7141, point 19, et du 24 septembre 2002, Grundig Italiana, C‑255/00, Rec. p. I‑8003, point 34). Ainsi, un délai de prescription de six ans, tel que celui appliqué à l’action Woolwich, qui court à compter de la date du paiement d’impôts indus apparaît, en soi, raisonnable.
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51. Consequently, the answer to the second question is that the hiring-out of workers, within the meaning of Article 1(3)(c) of Directive 96/71, is a service provided for remuneration in respect of which the worker who has been hired out remains in the employ of the undertaking providing the service, no contract of employment being entered into with the user undertaking. It is characterised by the fact that the movement of the worker to the host Member State constitutes the very purpose of the provision of services effected by the undertaking providing the services and that that worker carries out his tasks under the control and direction of the user undertaking.
Costs
| 0 |
862,765 |
90
The Commission adds that DEI’s argument that it is for the national court, in the context of interlocutory proceedings, to notify the Commission and to subject to its preventive review any new measure granting new aid or altering existing aid is borne out by the judgment of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434, paragraphs 59 to 63), from which it is apparent that exclusive competence of the Commission and the primacy of EU law preclude the national court from applying a national measure where its application would be an obstacle to the recovery of the State aid.
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58
While it cannot be ruled out that legislation introducing an obligation to offer and supply natural gas at a determined price may be regarded as capable of ensuring security of supply, it is for the referring court, in the absence of precise elements of analysis put before the Court, to determine whether that is the case with respect to the legislation at issue in the main proceedings.
| 0 |
862,766 |
31. According to settled case-law, the concepts used in the Brussels Convention – which include, in particular, that of ‘consumer’ for the purposes of Articles 13 to 15 of that Convention – must be interpreted independently, by reference principally to the scheme and purpose of the Convention, in order to ensure that it is uniformly applied in all the Contracting States (see, in particular, Case 150/77 Bertrand [1978] ECR 1431, paragraphs 14, 15 and 16; Case C-89/91 Shearson Lehman Hutton [1993] ECR I-139, paragraph 13; Case C‑269/95 Benincasa [1997] ECR I-3767, paragraph 12; Case C-99/96 Mietz [1999] ECR I‑2277, paragraph 26; and Case C-96/00 Gabriel [2002] ECR I-6367, paragraph 37).
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64 The difference in treatment may be explained by those objective differences, and does not therefore constitute discrimination contrary to Articles 59 and 60.
| 0 |
862,767 |
30 Lastly, the Court has already held that Article 4(2) of the Directive does not empower the Member States to exclude generally and definitively from the obligation of assessment one or more classes of projects mentioned in Annex II (Case C-133/94 Commission v Belgium [1996] ECR I-2323, paragraphs 41 to 43), since the concept of classes of projects must be understood to mean not the 12 main categories in Annex II, but the subdivisions of those categories, each preceded by a letter of the alphabet (Case C-301/95 Commission v Germany [1998] ECR I-6135, paragraphs 39 to 43).
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43. On the other hand, the principle of effectiveness would be infringed if the Goossens companies had neither the right to obtain reimbursement of the charge concerned during the five-year period, nor, in pursuance of an action for recovery of undue payment brought after expiry of that period by Mr Bosschaert against those companies, the possibility of bringing proceedings against the State, so that the charges paid but not due to the State were solely paid by those intermediary companies.
| 0 |
862,768 |
55. According to settled case-law, the purpose of Article 27(2) of the Convention is to ensure that a judgment will not be recognised or enforced under the Convention if the defendant has not had an opportunity to put his defence before the court which gave the judgment (Case 166/80 Klomps [1981] ECR 1593, paragraph 9, Case C‑172/91 Sonntag [1993] ECR I-1963, paragraph 38, and Hengst Import , cited above, paragraph 17).
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17 THE CONCEPT OF ' THE MEMBER STATE IN WHICH HE RESIDES ' MUST BE LIMITED TO THE STATE WHERE THE WORKER , ALTHOUGH OCCUPIED IN ANOTHER MEMBER STATE , CONTINUES HABITUALLY TO RESIDE AND WHERE THE HABITUAL CENTRE OF HIS INTERESTS IS ALSO SITUATED .
| 0 |
862,769 |
46. As was pointed out in paragraph 33 above, the descriptive signs referred to in Article 7(1)(c) of Regulation No 40/94 are also devoid of any distinctive character for the purposes of Article 7(1)(b) of that regulation. Conversely, a sign may be devoid of distinctive character for the purposes of Article 7(1)(b) for reasons other than the fact that it may be descriptive (see, with regard to the identical provision laid down in Article 3 of Directive 89/104, Koninklijke KPN Nederland , paragraph 86, and Campina Melkunie , paragraph 19).
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56. The place where the loss occurred thus identified meets, in circumstances such as those referred to in paragraph 51 of this judgment, the objective of Regulation No 44/2001 of strengthening the legal protection of persons established in the European Union, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee in which court he may be sued (see, to that effect, judgment in Kronhofer , EU:C:2004:364, paragraph 20), given that the issuer of a certificate who does not comply with his legal obligations in respect of the prospectus must, when he decides to notify the prospectus relating to that certificate in other Member States, anticipate that inadequately informed operators, domiciled in those Member States, might invest in that certificate and suffer loss.
| 0 |
862,770 |
114 Accordingly, the plea must be rejected.
The fourth plea in law: infringement of Article 12 of the Staff Regulations
16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis.
17 So far as this plea in law is concerned, the Court of First Instance held as follows:
124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66).
125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position.
126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book.
127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations.
128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty.
129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41).
130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47).
131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials.
132 It follows that the plea must be rejected.
The fifth plea in law: infringement of Article 17 of the Staff Regulations
18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II.
19 The Court of First Instance rejected this plea for the following reasons:
147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression.
148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73).
149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials.
150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions.
151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect.
152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned.
153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties.
154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation.
155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression.
156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected.
157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication.
158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations.
...
160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations.
161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument.
162 Consequently, the plea must be rejected.
The sixth plea in law: manifest error of assessment and breach of the principle of proportionality
20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances.
21 The Court of First Instance held as follows:
165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34).
166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established.
167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed.
168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded.
169 Consequently, the plea must be rejected.
The seventh plea in law: misuse of powers
22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers.
23 In rejecting this plea, the Court of First Instance gave the following grounds:
171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88).
172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings.
173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas.
174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers.
175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected.
24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages.
25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs.
The appeal
26 Mr Connolly claims that the Court of Justice should:
set aside the contested judgment;
annul so far as necessary the opinion of the Disciplinary Board;
annul the contested decision;
annul the decision of 12 July 1996 rejecting his administrative complaint;
order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage;
order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings.
27 The Commission contends that the Court of Justice should:
dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded;
dismiss the claim for damages as inadmissible and unfounded;
order Mr Connolly to pay the costs in their entirety.
28 In his appeal the appellant puts forward 13 grounds of appeal.
The first ground of appeal
29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights).
30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review.
31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission.
32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC.
33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected.
The admissibility of the ground of appeal
34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression.
35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression.
36 The first ground of appeal must therefore be held to be admissible.
Substance
37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41).
38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52).
40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60).
42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49).
43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution.
44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees.
45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124).
46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively.
47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th
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25. As regards marks made up of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by those marks, registration of such marks is not excluded by virtue of such use ( OHIM v Erpo Möbelwerk , paragraph 41, and Audi v OHIM , paragraph 35). As regards the assessment of the distinctive character of such marks, it is inappropriate to apply to slogans criteria which are stricter than those applicable to other types of sign ( OHIM v Erpo Möbelwerk , paragraph 32, and Audi v OHIM , paragraph 36).
| 0 |
862,771 |
39. In those circumstances, it is to be recalled that, according to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording and the context in which it occurs, but also the objective pursued by the rules of which it is part (see, to that effect, inter alia, Case C‑301/98 KVS International [2000] ECR I-3583, paragraph 21; Case C-300/05 ZVK [2006] ECR I-11169, paragraph 15; and Case C-466/07 Klarenberg [2009] ECR I-0000, paragraph 37).
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21 It should be recalled, at the outset, that according to the settled case-law of the Court, in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, in particular, Case 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12, and C-223/98 Adidas [1999] ECR I-7081, paragraph 23).
| 1 |
862,772 |
56
When the Court is prompted to define the examination necessary to determine the essential aim of the transactions at issue, it takes into account only the objective of the transaction or transactions whose abusiveness is to be assessed and not that of the supplies which, as a result of those initial transactions, formally satisfy the conditions for obtaining a tax advantage (see, inter alia, judgments of 22 December 2010, Weald Leasing, C‑103/09, EU:C:2010:804, paragraphs 10 to 15 and 31, and of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraphs 20 and 43 to 45).
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16. That interpretation is not invalidated by the optional nature of the exception mentioned in Article 5(3)(k) of Directive 2001/29. An interpretation according to which Member States that have introduced that exception are free to determine the limits in an unharmonised manner, which may vary from one Member State to another, would be incompatible with the objective of that directive (see, to that effect, judgments in Padawan , EU:C:2010:620, paragraph 36, and ACI Adam and Others , C‑435/12, EU:C:2014:254, paragraph 49).
| 0 |
862,773 |
14. According to settled case-law, it is for the Commission to choose when it will bring an action for failure to fulfil obligations. The considerations which determine its choice of time cannot affect the admissibility of the action. The rules laid down in Article 258 TFEU must be applied without any obligation on the Commission to act within a specific period, subject to situations in which the excessive duration of the pre-litigation procedure is liable to make it more difficult for the Member State concerned to refute the Commission’s arguments and is thus liable to infringe the rights of the defence. It is for the Member State concerned to adduce evidence that it has been affected by such an excessive duration (see, to that effect, judgment in Commission v Lithuania , C‑350/08, EU:C:2010:642, paragraphs 33 and 34 and the case-law cited).
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38. En second lieu, concernant la position 8302 de la NC, il y a lieu de constater que les caractéristiques de l’article en cause ne paraissent correspondre à aucun des exemples de garnitures, de ferrures et d’articles similaires figurant dans les notes explicatives du SH relatives à la position 8302.
| 0 |
862,774 |
41. If the taxable person chooses to treat capital goods used both for business and private purposes as business goods, the VAT due as input tax on the acquisition of those goods is in principle wholly and immediately deductible (see, inter alia , Case C-97/90 Lennartz [1991] ECR I-3795, paragraph 26, and Bakcsi , cited above, paragraph 25).
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30 As regards the importance of the proceedings to the appellant, it must be emphasised that its economic survival was not directly endangered by the proceedings. The fact nevertheless remains that, in the case of proceedings concerning infringement of competition rules, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted in the internal market are of considerable importance not only for an applicant himself and his competitors but also for third parties in view of the large number of persons concerned and the financial interests involved.
| 0 |
862,775 |
181. In that regard, it is clear from the case-law of the Court that interested parties other than the Member State concerned, such as in the present case the Government of Gibraltar, have, in the procedure for reviewing State aid, only the opportunity to send to the Commission all information intended for the guidance of the latter with regard to its future action and they cannot themselves seek to engage in an adversarial debate with the Commission in the same way as is offered to that Member State (see Commission v Sytraval and Brink’s France , paragraph 59, and Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraphs 80 and 82).
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14 IL Y A DONC LIEU DE REPONDRE AUX PREMIERE ET DEUXIEME QUESTIONS QU' UNE IMPOSITION DENOMMEE IMPOT DE CONSOMMATION, FRAPPANT TANT LES PRODUITS IMPORTES QUE LES PRODUITS NATIONAUX, MAIS QUI, EN FAIT, S' APPLIQUE PRESQUE EXCLUSIVEMENT AUX PRODUITS IMPORTES PARCE QU' IL EXISTE UNE PRODUCTION NATIONALE EXTREMEMENT REDUITE, NE CONSTITUE PAS UNE TAXE D' EFFET EQUIVALANT A UN DROIT DE DOUANE A L' IMPORTATION AU SENS DES ARTICLES 9 ET 12 DU TRAITE CEE SI ELLE S' INTEGRE DANS UN SYSTEME GENERAL DE REDEVANCES INTERIEURES APPREHENDANT SYSTEMATIQUEMENT DES CATEGORIES DE PRODUITS SELON DES CRITERES OBJECTIFS APPLIQUES INDEPENDAMMENT DE L' ORIGINE DES PRODUITS . ELLE REVET DES LORS LE CARACTERE D' UNE IMPOSITION INTERIEURE AU SENS DE L' ARTICLE*95 .
SUR LA TROISIEME QUESTION
| 0 |
862,776 |
61
In order to assess whether a penalty is consistent with the principle of proportionality, account must be taken, inter alia, of the nature and the degree of seriousness of the infringement which the penalty is intended to sanction and of the means of establishing the amount of the penalty (see, to that effect, judgments of 8 May 2008, Ecotrade, C‑95/07 and C‑96/07, EU:C:2008:267, paragraphs 65 to 67; and of 20 June 2013, Rodopi-M 91, C‑259/12, EU:C:2013:414, paragraph 38).
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87. It must be noted in this regard that, as is clear from settled case-law, the right to property, in the same way as the freedom to pursue an economic activity, forms part of the general principles of Community law. However, those principles are not absolute but must be viewed in relation to their social function. Consequently, the exercise of the right to property and the freedom to pursue an economic activity may be restricted, provided that any restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute in relation to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (see, most recently, Alliance for Natural Health and Others , cited above, paragraph 126).
| 0 |
862,777 |
58. As regards the existence of such a contract, the Court stated, in paragraph 50 of the judgment in Teckal , that, in accordance with Article 1(a) of Directive 93/36, it is in principle sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities.
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11 IN THESE CIRCUMSTANCES, A MEASURE WHICH IS IN THE NATURE OF A COMMUNITY DECISION ON THE BASIS OF ITS OBJECTIVE AND OF THE INSTITUTIONAL FRAMEWORK WITHIN WHICH IT HAS BEEN DRAWN UP CANNOT BE DESCRIBED AS AN " INTERNATIONAL AGREEMENT ".
| 0 |
862,778 |
33
In addition, as regards the period referred to in the first complaint, the present action includes imprecise expressions, such as the Republic of Bulgaria ‘continues to fail to fulfil’ its obligations. In those circumstances, the absence of an indispensable element from the content of the application initiating proceedings, such as the period during which the Republic of Bulgaria — according to the Commission’s assertions — has infringed European Union law, does not satisfy the requirements of coherence, clarity and precision, as outlined in the judgment of 15 November 2012, Commission v Portugal (C‑34/11, EU:C:2012:712, paragraph 47).
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22. S’agissant de ces délais, il est de jurisprudence constante que l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 10 avril 2003, Commission/Portugal, C-392/99, Rec. p. I-3373, point 87; du 14 juillet 2005, Commission/Allemagne, C-433/03, Rec. p. I-6985, point 32, et du 19 juin 2008, Commission/Luxembourg, C-319/06, non encore publié au Recueil, point 72).
| 0 |
862,779 |
72 In that regard, the justifications relied on by the Riksskatteverket under Article 58 EC are essentially the same as those it put forward to justify the restrictions on freedom of establishment caused by the national provision at issue which relate to the coherence of the tax system, the prevention of tax avoidance and the effectiveness of fiscal supervision (see, as regards the relation between overriding public interest requirements recognised by the Court and Article 73d(1)(a) of the EC Treaty (now Article 58(1)(a) EC) Verkooijen, cited above, paragraphs 43 to 46). For the same reasons as those cited in connection with freedom of establishment at paragraphs 46 to 63 above, those justifications cannot be upheld in relation to the restriction on free movement of capital that has been held to exist at paragraph 70.
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31. However, it follows from the judgment in Case C‑1/07 Weber [2008] ECR I‑8571 that Articles 1(2) and 8(2) and (4) of Directive 91/439 do not preclude a Member State from refusing to recognise, in its territory, a right to drive under a driving licence issued by another Member State to a person whose right to drive was withdrawn in the territory of the first Member State, even though that withdrawal was ordered after the issue of that driving licence, provided that that licence was obtained during a period in which a licence issued in the first Member State was suspended and both the suspension and the withdrawal are based on grounds existing at the date of issue of the second driving licence.
| 0 |
862,780 |
17 It is not for the Court of Justice, but for the national court, to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see the judgment in Case 17/81 Pabst & Richarz v Hauptzollamt Oldenburg [1982] ECR 1331, paragraph 12).
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26. Lastly, it was explained, at the hearing, that Law No 2000-108 had established a principle that the obligation to purchase would be covered in full by the French State, requiring the French State to discharge past debts and to cover in full the additional costs imposed on undertakings should the sum of the charges collected from final consumers of electricity be insufficient to cover those additional costs.
| 0 |
862,781 |
54. As regards the second condition, it is undisputed that the prohibition on the selling of contact lenses via the Internet applies to contact lenses from other Member States which are sold by mail order and delivered to the home of customers resident in Hungary. It is clear that the prohibition on selling contact lenses by mail order deprives traders from other Member States of a particularly effective means of selling those products and thus significantly impedes access of those traders to the market of the Member State concerned (see, by analogy, in relation to medicinal products, Deutscher Apothekerverband , paragraph 74).
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44. As the General Court pointed out in paragraph 26 of the order under appeal, third parties may be individually concerned by a decision addressed to another person only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 36; Inuit Tapiriit Kanatami and Others v Parliament and Council , paragraph 72; and Telefónica v Commission , paragraph 46).
| 0 |
862,782 |
66. That said, the Court’s interpretation of Regulation No 1408/71 in response to the first question submitted for a preliminary ruling must be understood without prejudice to the solution which flows from the potential applicability of provisions of primary law (see, by way of analogy, Acereda Herrera , cited above, paragraph 38). The finding that a national measure may be consistent with a provision of a secondary law measure, in this case Regulation No 1408/71, does not necessarily have the effect of removing that measure from the scope of the Treaty’s provisions (see, to that effect, Case C‑158/96 Kohll [1998] ECR I‑1931, paragraph 25, and Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 47). It follows that the applicability, as the case may be, of Articles 19 or 22 of Regulation No 1408/71 to a situation such as that at issue in the main proceedings does not of itself prevent the person concerned from claiming, pursuant to primary law, the payment of certain costs relating to care received in a care home situated in another Member State, under rules different to those provided for in those articles (see, by analogy, Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, paragraphs 37 to 53, along with Watts , cited above, paragraph 48).
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83. As to the conditions to be satisfied for a Member State to be required to make reparation for loss and damage caused to individuals as a result of breaches of Community law for which the State is responsible, the Court has held that these are threefold: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation incumbent on the State and the loss or damage sustained by the injured parties (Haim , cited above, paragraph 36).
| 0 |
862,783 |
27. In that regard, it must be noted that, although it follows from the rules governing the procedure for identifying sites eligible for designation as SACs, set out in Article 4(1) of the Habitats Directive, that Member States have a margin of discretion when making their site proposals, the fact none the less remains that they must do so in compliance with the criteria laid down by the directive (see, inter alia, Case C‑67/99 Commission v Ireland EU:C:2001:432, paragraph 33). It follows that, where the results of the surveillance undertaken by the Member States pursuant to Article 11 of the directive give rise to the conclusion that those criteria can irretrievably no longer be met, the Member States must of necessity, under Article 4(1) of the directive, make a proposal for the adaptation of the list of SCIs seeking to make that list meet those criteria once again.
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61. Il est de principe que les lois modificatives d’une disposition législative, telles que les règlements de modification du statut, s’appliquent, sauf dérogation, aux effets futurs des situations nées sous l’empire de la loi ancienne (voir, en ce sens, arrêt du 29 juin 1999, Butterfly Music, C‑60/98, Rec. p. I‑3939, point 24).
| 0 |
862,784 |
21. In that procedure, the reasoned opinion and the action must set out the Commission’s complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of Community law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged (see, to this effect, Case C-98/04 Commission v United Kingdom [2006] ECR I-4003, paragraph 18).
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41 A benefit such as that in issue, the payment of which is dependent on the prior existence of an employment relationship which has recently come to an end, meets those conditions, since entitlement to the benefit is intrinsically linked to the recipients' objective status as workers.
| 0 |
862,785 |
8. It must be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia , Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26, and Case C-173/01 Commission v Greece [2002] ECR I-6129, paragraph 7).
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20. As regards the third criteria, the French Government submits that the mere proliferation of a plant species is not sufficient to establish an undesirable disturbance so long as there is no disruption to the balance of other organisms present in the water.
| 0 |
862,786 |
24 Moreover, the Court has held that only producers who were induced by the rules introduced by Regulation No 1078/77 to suspend milk marketing for a certain period in the general interest and who for that reason made no deliveries during the period of the undertaking may rely on the principle of the protection of legitimate expectations in order to claim a special reference quantity under the second subparagraph of Article 3a(1) of Regulation No 857/84 (Mulder and Von Deetzen, paragraphs 24 and 13 respectively).
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26 As regards the latter principle, the Court has recognised that it is compatible with Community law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty, which protects both the taxpayer and the administration concerned (Rewe, cited above, paragraph 5, and Comet, cited above, paragraphs 17 and 18, and Case 61/79 Denkavit ltaliana [1980] ECR 1205, paragraph 23; see also Case C-261/95 Palmisani v INPS [1997] ECR I-4025, paragraph 28, and Case C-90/94 Haahr Petroleum v benrå Havn and Others [1997] ECR I-4085, paragraph 48). Such time-limits are not liable to render virtually impossible or excessively difficult the exercise of rights conferred by Community law. In that regard, a time-limit of three years under national law, reckoned from the date of the contested payment, appears reasonable (Edis, cited above, paragraph 35, SPAC, cited above, paragraph 19, and Case C-228/96 Aprile, cited above, paragraph 19).
| 0 |
862,787 |
27. With regard to compulsory jurisdiction, it must be recalled that this element is lacking in contractual arbitration, since the contracting parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the public authorities of the Member State concerned are neither involved in the decision to opt for arbitration nor required to intervene of their own accord in the proceedings before the arbitrator (Case C‑125/04 Denuit and Cordenier EU:C:2005:69, paragraph 13 and the case-law cited, and order in C‑555/13 Merck Canada EU:C:2014:92, paragraph 17).
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13. Under the Court’s case-law, an arbitration tribunal is not a ‘court or tribunal of a Member State’ within the meaning of Article 234 EC where the parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the public authorities of the Member State concerned are not involved in the decision to opt for arbitration nor required to intervene of their own accord in the proceedings before the arbitrator (Case 102/81 ‘ Nordsee’ Deutsche Hochseefischerei [1982] ECR 1095, paragraphs 10 to 12, and Case C-126/97 Eco Swiss [1999] ECR I-3055, paragraph 34).
| 1 |
862,788 |
26. The supply of alcoholic beverages to customers in a catering context is accompanied by a series of services other than the operations which are necessarily connected with the marketing of such products. Those services consist in placing an infrastructure at the customer’s disposal, including a dining room with furniture and appurtenances (cloakrooms, toilets, etc.), providing the customer with advice and explanations concerning the beverages served, serving them to him in a suitable container, serving at table and, finally, clearing the tables and cleaning after the food and drink have been consumed (see, to that effect, Faaborg-Gelting Linien , paragraph 13).
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14 It follows that the decisive test to be satisfied in order for a capital-raising transaction to attract capital duty is the strengthening of the economic potential of the company benefiting from it. In the present case, the remission of debt granted by the member has helped to strengthen the economic potential of that company by reducing its deficit. That transaction must therefore be regarded as being capable of increasing the value of its shares, as envisaged in Article 4(2)(b) of Directive 69/335.
| 0 |
862,789 |
60. More specifically, the Court has taken that step only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with European Union legislation by reason of objective, significant uncertainty regarding the implications of European Union provisions or principles, to which the conduct of other Member States or the European Commission may even have contributed (see, inter alia, Case C-423/04 Richards [2006] ECR I-3585, paragraph 42; Brzeziński , paragraph 57; and Kalinchev , paragraph 51).
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11 It is also established that this pension scheme is funded wholly by the employees and employers in the industry concerned, to the exclusion of any financial contribution from the public purse.
| 0 |
862,790 |
71. Secondly, it should be noted as a preliminary remark that, according to the case-law of the Court, in setting the amount of fines, regard must be had to the duration of the infringements and to all the factors capable of affecting the assessment of the gravity of those infringements (see Musique Diffusion française and Others v Commission , paragraph 129, and Dansk Rørindustri and Others v Commission , paragraph 240).
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57. That provision of Article 58 EC, in so far as it is a derogation from the fundamental principle of the free movement of capital, must be interpreted strictly. It cannot therefore be interpreted as meaning that all tax legislation which draws a distinction between taxpayers based on their place of residence or the Member State in which they invest their capital is automatically compatible with the Treaty (see Jäger , paragraph 40).
| 0 |
862,791 |
51. By contrast, the idea that Article 87(2)(c) EC permits full compensation for the undeniable economic lack of development suffered by the new Länder disregards both the nature of that provision as a derogation and its context and aims (Case C-156/98 Germany v Commission , cited above, paragraph 53).
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50. Under settled case‑law, it is for the national court to interpret the national law which it has to apply, as far as is at all possible, in a manner which accords with the requirements of EU law (Case C‑262/97 Engelbrecht [2000] ECR I‑7321, paragraph 39; Case C‑115/08 ČEZ [2009] ECR I‑0000, paragraph 138; and Case C‑91/08 Wall [2010] ECR I‑0000, paragraph 70). In the light of the aforementioned decisions of the Conseil constitutionnel and the Conseil d’État, such an interpretation of the national provisions which introduced the mechanism for review of constitutionality at issue in the main proceedings cannot be ruled out.
| 0 |
862,792 |
112. It must be borne in mind that, according to settled case-law of the court, in the absence of relevant EU rules, the detailed procedural rules designed to ensure the protection of the rights that individuals acquire under EU law are a matter for the domestic legal order of each Member State, in accordance with the principle of the procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it in practice impossible or excessively difficult to exercise rights conferred by the EU legal order (principle of effectiveness) (see, inter alia, Meilicke and Others , C‑262/09, EU:C:2011:438, paragraph 55, and Pelati , C‑603/10, EU:C:2012:639, paragraph 23).
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62
In that regard, it should be noted that, according to Article 3(a) of that regulation, a design is defined as being ‘the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation’. It follows that, in the context of the system set out by Regulation No 6/2002, appearance is the decisive factor of a design.
| 0 |
862,793 |
42. A distinction must therefore be made between the unequal treatment permitted under Article 73d(1)(a) of the Treaty and arbitrary discrimination prohibited under Article 73d(3). According to the case-law, in order for national tax legislation such as that at issue in the main proceedings, which, for the purposes of calculating inheritance tax, distinguishes between assets situated in another Member State and those situated in Germany, to be considered compatible with the provisions of the Treaty on the free movement of capital, the difference in treatment must concern situations which are not objectively comparable or be justified by overriding reasons in the general interest (see Verkooijen , paragraph 43, Manninen , paragraph 29, and Case C-443/06 Hollmann [2007] ECR I-0000, paragraph 45).
|
15 It must first be observed in that regard that the German rules on insurance neither require nor favour the conclusion of any unlawful agreement, decision or concerted practice by insurance intermediaries, since the prohibition which they lay down is a self-contained one.
| 0 |
862,794 |
45. The Court has pointed out, in particular, that a public authority has the possibility of performing the public interest tasks conferred on it by using its own resources, without being obliged to call on outside entities not forming part of its own departments, and that it may do so in cooperation with other public authorities (see Coditel Brabant , paragraphs 48 and 49).
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30 While those gaming machines were characterised by the fact that, in accordance with mandatory statutory provisions, they were set in such a way that at least a certain percentage, in fact 60%, of the players' stakes was paid out to them as winnings and those stakes were kept technically and physically separate from the stakes which the operator could actually take for himself, the competition at issue in the main proceedings does not display any of those features, so that the organiser of the competition has freely at his disposal the full amount of the entry fees received.
| 0 |
862,795 |
91. As regards alleged infringement of the principle of equal treatment, it must be observed, first of all, that each case must in principle be assessed individually to determine whether, as regards operations financed by the EAGGF, the Member State in question, acted in accordance with the requirements of Community law and, if it failed to do so, to what extent (Case C‑242/97 Belgium v Commission [2000] ECR I‑3421, paragraph 129, and Case C‑263/98 Belgium v Commission [2001] ECR I‑6063, paragraph 132).
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27. That provision requires, as a consequence, in the light of the objective pursued by Directive 92/83, that small breweries – the annual beer production of which is less than 200 000 hl – should be genuinely autonomous from any other brewery both as regards their legal and economic structure, and as regards their production structure, where they use physically separate premises and do not operate under licence.
| 0 |
862,796 |
31. Secondly, a member of the family of a Turkish worker, who satisfies the conditions laid down in the first sentence of Article 7 of Decision No 1/80 and who wishes to work in the host Member State, does not have to comply with the more rigorous conditions laid down in that regard in Article 6(1) (see to that effect, by analogy, Case C-210/97 Akman [1998] ECR I-7519, paragraphs 48 to 50).
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17 CET ARGUMENT NE SAURAIT ETRE ACCUEILLI . LA FACULTE DES ETATS MEMBRES DE LIMITER LA LIBRE CIRCULATION DES PERSONNES POUR DES MOTIFS DE SANTE PUBLIQUE N ' A PAS POUR OBJET DE METTRE LE SECTEUR DE LA SANTE PUBLIQUE , EN TANT QUE SECTEUR ECONOMIQUE ET DU POINT DE VUE DE L ' ACCES A L ' EMPLOI , A L ' ABRI DE L ' APPLICATION DES PRINCIPES DE LA LIBRE CIRCULATION , MAIS DE POUVOIR REFUSER L ' ACCES OU LE SEJOUR SUR LEUR TERRITOIRE A DES PERSONNES DONT L ' ACCES OU LE SEJOUR SUR CE TERRITOIRE CONSTITUERAIT , EN TANT QUE TEL , UN DANGER POUR LA SANTE PUBLIQUE .
| 0 |
862,797 |
55. Consequently, although a Member State must be accorded both the power to check that an undertaking, established in another Member State and providing a user undertaking, established in the first Member State, with a service consisting in the making available of workers who are nationals of non-member countries is not availing itself of the freedom to provide services for a purpose other than the provision of the service in question, and the possibility of taking the necessary control measures in that regard (see judgment in Commission v Germany , EU:C:2006:49, paragraph 36), the exercise of that power may not, however, allow that Member State to impose disproportionate requirements.
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36. The Court has recognised that the Member States have the power to verify compliance with the national and Community provisions in respect of the provision of services. Likewise, it has accepted the justification for the control measures necessary to verify compliance with requirements which are themselves justified by grounds of public interest ( Arblade and Others , paragraph 38). However, in paragraph 17 of the judgment in Case C-113/89 Rush Portuguesa [1990] ECR I-1417, the Court also held that those controls must comply with the limits imposed by Community law and must not render the freedom to provide services illusory.
| 1 |
862,798 |
32. As regards the complaint alleging breach of Article 49 EC, it is appropriate to point out that the provisions of the EC Treaty relating to freedom of movement are intended to apply to public contracts which are outside the scope of Directive 92/50. Although certain contracts are excluded from the scope of Community directives in the field of public procurement, the contracting authorities which conclude them are nevertheless bound to comply with the fundamental rules of the Treaty and the principle of non-discrimination on grounds of nationality in particular (see, to that effect, Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraph 60; Case C‑92/00 HI [2002] ECR I‑5553, paragraph 47, and the order of 3 December 2001 in Case C‑59/00 Vestergaard [2001] ECR I‑9505, paragraph 20).
|
80
The finding that the obligation to pay the full amount of registration tax is liable to render the rental or leasing of vehicles from a company established in another Member State more onerous than that from a company established in Ireland is not called into question by the fact that, under section 135D of the Finance Act 1992, part of the registration tax may, under the conditions laid down in that article, be refunded.
| 0 |
862,799 |
20. In order to reply to those questions, it should be observed as a preliminary point that, according to settled case-law, capital movements include investments in immovable property on the territory of a Member State by non-residents – as is also clear from the nomenclature of capital movements set out in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the [EC] Treaty (article repealed by the Treaty of Amsterdam) (OJ 1988 L 178, p. 5); that nomenclature still has the same indicative value for the purposes of defining the notion of capital movements (see, inter alia, Case C-370/05 Festersen [2007] ECR I‑1129, paragraph 23 and the case-law cited). In other words, the right to acquire, use or dispose of immovable property on the territory of another Member State generates capital movements when it is exercised (see, inter alia, 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 29, and Festersen , paragraph 22).
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63. In those circumstances, the fact that some types of games of chance are subject to a public monopoly whilst others are subject to a system of authorisations issued to private operators, cannot, in itself, render devoid of justification, having regard to the legitimate aims which they pursue, measures which, like the public monopoly, appear at first sight to be the most restrictive and the most effective. Such a divergence in legal regimes is not, in itself, capable of affecting the suitability of such a public monopoly for achieving the objective of preventing citizens from being incited to squander money on gambling and of combating addiction to the latter, for which it was established.
| 0 |
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