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25. It follows that the Court of Justice does not have jurisdiction to interpret the internal law of a Member State (order in Case C-307/95 Max Mara [1995] ECR I‑5083, paragraph 5; judgment in Case C-58/98 Corsten [2000] ECR I-7919, paragraph 24; and order in Case C-391/00 Colapietro , not published in the ECR, paragraphs 8 and 9).
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43. It must be concluded that the restriction which follows from the reintegration thus provided for is justified by the need to guarantee the coherence of the German tax system.
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863,101 |
39. The information provided in orders for reference must not only enable the Court to reply usefully but must also give the Governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that under that provision only the orders for reference are notified to the interested parties ( Albany , paragraph 40, and Case C‑145/03 Keller [2005] ECR I-2529, paragraph 30).
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Deuxièmement, il y a lieu de relever que l’existence de mesures d’harmonisation des règles relatives à l’immatriculation des
véhicules ne saurait être érigée en condition préalable pour la mise en œuvre de la libre prestation des services, consacrée
par l’article 56 TFUE (voir, par analogie, arrêt SEVIC Systems, C‑411/03, EU:C:2005:762, point 26), de même que l’absence
de telles mesures ne saurait justifier une restriction à la liberté de prestation des services (voir, par analogie, arrêt
Commission/France, 270/83, EU:C:1986:37, point 24).
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863,102 |
37 As regards the Luxembourg Government's argument concerning the Commission's motives in choosing to bring the present action rather than taking action against the Council, it must be borne in mind that, in its role as guardian of the Treaty, the Commission alone is competent to decide whether it is appropriate to bring proceedings against a Member State for a declaration that it has failed to fulfil its obligations, and on account of which conduct or omission attributable to the Member State concerned those proceedings should be brought (see Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 22).
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34. The wording of Article 11(2) therefore calls for a restrictive interpretation and, in any event, cannot in itself be extrapolated as advocated by the Italian Government.
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42. In those circumstances, to the extent that the appellant submits that solely by virtue of the conclusion reached by the General Court in its assessment of its arguments – a negative conclusion from the appellant’s perspective – the existence of a non-rebuttable presumption is demonstrated, such a line of argument must be rejected (see, to that effect, Elf Aquitaine v Commission , paragraph 67).
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32 The answer to the first two questions must therefore be that it is for the national court to determine, in the light of the above criteria, whether transactions such as those performed by CPP are to be regarded for VAT purposes as comprising two independent supplies, namely an exempt insurance supply and a taxable card registration service, or whether one of those two supplies is the principal supply to which the other is ancillary, so that it receives the same tax treatment as the principal supply.
Question 4
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67
In its judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 170 to 172), the Court held that, from the television viewers’ standpoint, the ephemeral acts of reproduction at issue in that case, which enabled the proper functioning of the satellite decoder and the television screen, enabled the broadcasts containing protected works to be received. The Court held, in that regard, that the mere reception of those broadcasts in itself — that is to say, the picking up of the broadcasts and their visual display in a private circle — did not reveal an act restricted by the relevant legislation and such reception was to be considered lawful in the case of broadcasts from a Member State when brought about by means of a foreign decoding device. The Court concluded that the sole purpose of the acts of reproduction at issue was to enable a ‘lawful use’ of the works within the meaning of Article 5(1)(b) of Directive 2001/29.
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22 That situation therefore objectively justifies a difference in treatment between resident and non-resident offenders, the obligation imposed on the latter to pay a sum by way of security being appropriate to prevent them from avoiding an effective penalty simply by declaring that they do not consent to the immediate levying of the fine and opting for the continuation of normal criminal proceedings.
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93. Respect for the rights of the defence is of crucial importance in procedures such as that followed in the present case (see, to that effect, Case C‑49/88 Al-Jubail Fertilizer v Commission [1991] ECR I‑3187, paragraphs 15 to 17, and by analogy, Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 55).
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128. The same is true of the second circumstance, where the decoding device is used for commercial purposes although it was restricted to private use.
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863,106 |
36. In accordance with settled case-law, a restriction on the freedom to provide services may be accepted only if it is justified by overriding reasons in the public interest. Even if that were so, application of that restriction would still have to be such as to ensure achievement of the aim pursued and not go beyond what is necessary for that purpose ( Tankreederei I , paragraph 19 and the case-law cited).
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14 It follows that a supply of services is effected "for consideration" within the meaning of Article 2(1) of the Sixth Directive, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient.
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863,107 |
32. In that context, the Verwaltungsgerichtshof Baden-Württemberg decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. On Articles 2, 3 and 7 of [Directive 2004/38]:
(a) Does “family member” include, in particular in the light of Articles 7 and 24 of the [Charter of Fundamental Rights (“the Charter”)] and Article 8 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, “the ECHR”)], on an extended interpretation of Article 2(2)(d) of Directive 2004/38, a parent who is a third-country national, has parental responsibility for a child who is a Union citizen entitled to freedom of movement, and is not maintained by that child?
(b) If so, does Directive 2004/38 apply to that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, on an extended interpretation of Article 3(1) of the directive, even where there is no “accompanying” or “joining” with respect to the Member State of origin of the child who is a Union citizen and has moved away?
(c) If so, does it follow that that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, has a right of residence for more than three months in the Member State of origin of the child who is a Union citizen, on an extended interpretation of Article 7(2) of Directive 2004/38, at least as long as parental responsibility subsists and is actually exercised?
2. On Article 6(1) TEU in conjunction with the Charter:
(a) (i) Is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter simply where the subject‑matter of the dispute depends on a national law (or part of a law) which inter alia – but not only – transposed directives?
(ii) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter simply because the claimant is possibly entitled to a right of residence under Union law and could accordingly, under the first sentence of Paragraph 5(2) of the FreizügG/EU, claim a residence card for a family member of a Union citizen which has its legal basis in the first sentence of Article 10(1) of [Directive 2004/38]?
(iii) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter, in accordance with the case‑law deriving from Case C‑260/89 ERT [1991] ECR I‑2925, paragraphs 41 to 45, where a Member State restricts the right of residence of the father who is a third-country national with parental responsibility for a Union citizen who is a minor and resides predominantly with her mother in another Member State of the Union because of the mother’s employment?
(b) (i) If the Charter is applicable, can a right of residence under European Union law for the father who is a third-country national be derived directly from Article 24(3) of the Charter, at least as long as he has and actually exercises parental responsibility for his child who is a Union citizen, even if the child resides predominantly in another Member State of the Union?
(ii) If not, does it follow from the freedom of movement of the child who is a Union citizen under Article 45(1) of the Charter, possibly in conjunction with Article 24(3) of the Charter, that the father who is a third-country national has a right of residence under European Union law, at least as long as he has and actually exercises parental responsibility for his child who is a Union citizen, so that in particular the freedom of movement of the child who is a Union citizen is not deprived of all practical effect?
3. On Article 6(3) TEU in conjunction with the general principles of European Union law:
(a) Can the “unwritten” fundamental rights of the European Union developed in the Court’s case‑law from Case 29/69 Stauder [1969] ECR 419, paragraph 7, up to, for example, Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 75, be applied in full even if the Charter is not applicable in the specific case; in other words, do the fundamental rights which continue to apply as general principles of Union law under Article 6(3) TEU stand autonomously and independently alongside the new fundamental rights laid down in the Charter in accordance with Article 6(1) TEU?
(b) If so, can a right of residence under European Union law for the purpose of the effective exercise of parental responsibility be inferred from the general principles of Union law, in particular in the light of the right to respect for family life under Article 8 of the ECHR, for a father, who is a third-country national, of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation?
4. On Article 21(1) TFEU in conjunction with Article 8 of the ECHR:
If Article 6(1) or (3) TEU does not lead to a right of residence under European Union law for the claimant, can, in accordance with Case C‑200/02 Zhu and Chen [2004] ECR I‑9925, paragraphs 45 to 47, a right of residence under European Union law for the purpose of the effective exercise of parental responsibility be inferred, under Article 21(1) TFEU, possibly in the light of Article 8 of the ECHR, from the freedom of movement enjoyed by a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation, for the father, who is a third-country national, in the Member State of origin of the child who is a Union citizen?
5. On Article 10 of [Directive 2004/38]:
If a right of residence under European Union law is taken to exist, is a parent who is a third-country national in the claimant’s situation entitled to the issue of a “residence card for a family member of a Union citizen”, possibly in accordance with the first sentence of Article 10(1) of the directive?’
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En précisant que l’EUIPO « peut » décider de ne pas tenir compte de telles preuves, ladite disposition investit en effet ce dernier d’un large pouvoir d’appréciation à l’effet de décider, tout en motivant sa décision sur ce point, s’il y a lieu ou non de prendre ceux-ci en compte (arrêts du 13 mars 2007, OHMI/Kaul, C‑29/05 P, EU:C:2007:162, point 43, ainsi que du 26 septembre 2013, Centrotherm Systemtechnik/OHMI et centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, point 78).
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38. However, the Court has also specified that the mere acquisition and holding of shares in a company is not to be regarded as an economic activity, within the meaning of the Sixth Directive, conferring on the holder the status of a taxable person. The mere acquisition of financial holdings in other undertakings does not amount to the exploitation of property for the purpose of obtaining income therefrom on a continuing basis because any dividend yielded by that holding is merely the result of ownership of the property (see Harnas & Helm , cited above, paragraph 15).
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15 However, the Court has also specified that the mere acquisition and holding of shares in a company is not to be regarded as an economic activity, within the meaning of the Sixth Directive, conferring on the holder the status of a taxable person (Case C-60/90 Polysar Investments Netherlands v Inspecteur der Invoerrechten en Accijnzen [1991] ECR I-3111, paragraph 13). The mere acquisition of financial holdings in other undertakings does not amount to the exploitation of property for the purpose of obtaining income therefrom on a continuing basis because any dividend yielded by that holding is merely the result of ownership of the property (see also, to the same effect, Case C-333/91 Sofitam v Ministre Chargé du Budget [1993] ECR I-3513, paragraph 12).
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863,109 |
38 Articles 52 and 59 of the Treaty require the removal of restrictions on the freedom of establishment and the freedom to provide services respectively. All measures which are liable to prohibit, impede or render less attractive the exercise of those freedoms must be considered to be such restrictions (see to that effect, as regards freedom of establishment, Case C-168/91 Konstantinidis [1993] ECR I-1191, paragraph 15, and, as regards freedom to provide services, Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 21).
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22. In light of those principles, such exemptions must be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, to that effect, SDC , paragraph 20, Cimber Air , paragraph 25, and Case C-445/05 Haderer [2007] ECR I-0000, paragraph 18). That requirement of strict interpretation does not, however, mean that the terms used to specify the exemptions should be construed in such a way as to deprive those exemptions of their intended effect (Case C-284/03 Temco Europe [2004] ECR I-11237, paragraph 17, and Haderer , paragraph 18).
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863,110 |
28. Since the identification of one of the connecting factors recognised by the case‑law set out in paragraph 25 of this judgment thus enables the court objectively best placed to determine whether the elements establishing the liability of the person sued are present to take jurisdiction, the relevant connecting factor must be situated within the jurisdiction of the court seised (see, to that effect, Case C-133/11 Folien Fischer and Fofitec [2012] ECR I-0000, paragraph 52).
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31 While that principle was indeed applied in cases concerning professions for the practice of which there were no harmonisation or coordination measures in existence at the time, its legal ambit cannot be reduced as a result of the adoption of directives on mutual recognition of diplomas.
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863,111 |
43. In that connection, it is clear from the case-law of the Court that, within the framework of the VAT system, taxable transactions presuppose the existence of a transaction between the parties in which a price or consideration is stipulated. Thus, where a person’s activity consists exclusively in providing services for no direct consideration, there is no basis of assessment and the services are therefore not subject to VAT (see Case 89/81 Hong Kong Trade Development Council [1982] ECR 1277, paragraphs 9 and 10; and Case C‑16/93 Tolsma [1994] ECR I‑743, paragraph 12).
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12 The Court has already held with reference to the concept of the "provision of services against payment" in Article 2(a) of the Second Directive, whose wording is similar to that of Article 2(1) of the Sixth Directive, that taxable transactions, within the framework of the VAT system, presuppose the existence of a transaction between the parties in which a price or consideration is stipulated. The Court concluded that, where a person' s activity consists exclusively in providing services for no direct consideration, there is no basis of assessment and the services are therefore not subject to VAT (judgment in Case 89/81 Staatssecretaris van Financiën v Hong Kong Trade Development Council [1982] ECR 1277, paragraphs 9 and 10).
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863,112 |
97. However, inasmuch as a Member State is, in principle, free, to avoid the imposition of a series of charges to tax on portfolio dividends received by a resident company by opting for the exemption method when the dividends are paid by a resident company and for the imputation method when they are paid by a non-resident company established in another Member State or in a non-member State party to the EEA Agreement, additional administrative burdens which are imposed on the resident company, in particular the fact that the national tax authority demands information relating to the tax that has actually been charged on the profits of the company distributing dividends in the State in which the latter is resident, are an intrinsic part of the very operation of the imputation method and cannot be regarded as excessive (see, to this effect, Test Claimants in the FII Group Litigation , paragraphs 48 and 53). In the absence of such information, the tax authorities of the Member State where the company receiving foreign-sourced dividends is established are not, in principle, in a position to determine the amount of corporation tax paid in the State of the company making the distribution that must be credited against the amount of tax payable by the recipient company.
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29. It follows that the Member States have a wide discretion under Article 13(C) of the Sixth Directive. It is for them to assess whether they should or should not introduce the right of option, depending on what they consider to be expedient in the situation existing in their country at a given time (see Case C‑381/97 Belgocodex [1998] ECR I‑8153, paragraphs 16 and 17; Case C‑12/98 Amengual Far [2000] ECR I‑527, paragraph 13; and Case C‑326/99 ‘Goed Wonen’ [2001] ECR I‑6831, paragraph 45).
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863,113 |
85. As to substance, it should be borne in mind that, in order to assess the degree of similarity between the marks concerned, it is necessary to determine the degree of visual, aural or conceptual similarity between them and, where appropriate, to assess the importance to be attached to those various factors, account being taken of the category of goods or services in question and the circumstances in which they are marketed (Case C-334/05 P OHIM v Shaker [2007] ECR I-4529, paragraph 36).
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7 Article 19 of the Protocol on the Statute of the Court of Justice of the EEC and Article 38(1)(c) and (d) of the Rules of Procedure provide that the application in a case brought before the Court must contain, among other things, the subject-matter of the dispute, the submissions and a brief statement of the grounds on which the application is based.
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863,114 |
70. According to settled case-law, compliance with the principle of equal treatment, or of non-discrimination, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C-44/94 Fishermen’s Organisations and Others [1995] ECR I-3115, paragraph 46; Case C-304/01 Spain v Commission [2004] ECR I-7655, paragraph 31; Case C-141/05 Spain v Council [2007] ECR I-9485, paragraph 40; and Case C-442/04 Spain v Council [2008] ECR I-3517, paragraph 35).
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53. The finding, by the Court of First Instance, as to whether the facts on which the Board of Appeal of OHIM has based its decision are well known or not is a factual assessment which, save where the facts or evidence are distorted, is not subject to review by the Court of Justice on appeal.
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863,115 |
35. It is the Court’s settled case-law that, in the absence of European Union rules governing the matter, it is for the domestic legal system of each Member State, in accordance with the principle of the procedural autonomy of the Member States, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from European Union law, the Member States having none the less responsibility for ensuring that those rights are effectively protected in each case (see, to that effect, Case C-224/01 Köbler [2003] ECR I‑10239, paragraph 47; Case C‑268/06 Impact [2008] ECR I‑2483, paragraphs 44 and 45; Case C‑12/08 Mono Car Styling [2009] ECR I‑6653, paragraph 48; and Joined Cases C‑317/08 to C-320/08 Alassini and Others [2010] ECR I-2213, paragraph 47).
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19. First, it should be noted that, as far as concerns dumping, the determination of normal value constitutes one of the essential steps required to prove the existence of any dumping. Article 2(1) of the basic regulation lays down the general principle in accordance with which the normal value must, as a rule, be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country.
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31 Finally, it should be borne in mind that the Court has already held that the definition of waste in Article 1 of Directive 75/442, as amended, is not to be understood as excluding substances and objects which were capable of economic reutilization (Case C-359/88 Zanetti and Others [1990] ECR I-1509, paragraphs 12 and 13; C-422/92 Commission v Germany [1995] ECR I-1097, paragraphs 22 and 23, and Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, paragraphs 47 and 48).
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43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC.
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24. In order to answer that question, it should be noted that it is settled case-law that, 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-183/06 RUMA [2007] ECR I-1559, paragraph 27; and Joined Cases C-208/06 and C-209/06 Medion and Canon Deutschland [2007] ECR I-7963, paragraph 34).
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13 The Court may of its own motion raise the objection that a party has no interest in bringing or in maintaining an appeal on the ground that an event subsequent to the judgment of the Court of First Instance removes the prejudicial effect thereof as regards the appellant, and declare the appeal inadmissible or devoid of purpose for that reason. For an applicant to have an interest in bringing proceedings the appeal must be likely, if successful, to procure an advantage to the party bringing it.
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70. Thus, that directive establishes a considerably strengthened system of protection against expulsion measures, which provides for greater guarantees where the degree of integration of Union citizens in the host Member State is high ( Tsakouridis , paragraphs 25 to 28 and 40 and 41).
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39. The Court has consistently held that indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, Case C‑1/95 Gerster [1997] ECR I-5253, paragraph 30, and Case C‑123/10 Brachner [2011] ECR I-0000, paragraph 56).
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863,119 |
42. That link and commercial message are concise and, in general, do not enable the advertiser to make specific sales offers or to provide a comprehensive overview of the types of goods or services which it markets. That circumstance does not, however, alter in any way the fact that the advertiser, having chosen as a keyword a sign identical with another person’s trade mark, intends that internet users who enter that word as a search term should click on its advertising link in order to find out about its offers. There is, therefore, use of that sign ‘in relation to goods or services’ within the meaning of Article 5(1)(a) of Directive 89/104 (see Google France and Google , paragraphs 67 to 73).
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Eu égard à la présence de la clause réservant la compétence d’exécution au Conseil et à sa justification dans les règlements
antérieurs au règlement n° 267/2012, l’existence de cette compétence du Conseil pouvait être connue comme faisant partie du
contexte dans lequel l’acte en cause a été adopté et être considérée comme dûment justifiée, au sens de l’article 291, paragraphe
2, TFUE (arrêt du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 64).
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26. According to settled case-law, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court and the national courts, by means of which the former provides the latter with the points of interpretation of European Union law which they need in order to decide the disputes before them (see, inter alia, Case C‑83/91 Meilicke [1992] ECR I‑4871, paragraph 22; Case C‑445/06 Danske Slagterier [2009] ECR I‑2119, paragraph 65; and Case C‑307/10 The Chartered Institute of Patent Attorneys [2012] ECR I‑0000, paragraph 31).
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36 VIEWED BY ITSELF , THE TAX SYSTEM INTRODUCED BY THE DANISH LEGISLATION CONTAINS INCONTESTABLE DISCRIMINATORY OR PROTECTIVE CHARACTERISTICS . ALTHOUGH IT DOES NOT ESTABLISH ANY FORMAL DISTINCTION ACCORDING TO THE ORIGIN OF THE PRODUCTS , IT HAS BEEN ADJUSTED SO THAT THE BULK OF THE DOMESTIC PRODUCTION OF SPIRITS COMES WITHIN THE MOST FAVOURABLE TAX CATEGORY WHEREAS ALMOST ALL IMPORTED PRODUCTS COME WITHIN THE MOST HEAVILY TAXED CATEGORY . THESE CHARACTERISTICS OF THE SYSTEM ARE NOT OBLITERATED BY THE FACT THAT A VERY SMALL FRACTION OF IMPORTED SPIRITS BENEFITS FROM THE MOST FAVOURABLE RATE OF TAX WHEREAS , CONVERSELY , A CERTAIN PROPORTION OF DOMESTIC PRODUCTION COMES WITHIN THE SAME TAX CATEGORY AS IMPORTED SPIRITS . IT THEREFORE APPEARS THAT THE TAX SYSTEM IS DEVISED SO THAT IT LARGELY BENEFITS A TYPICAL DOMESTIC PRODUCT AND HANDICAPS IMPORTED SPIRITS TO THE SAME EXTENT .
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36. As to the substance, it does not follow from either Article 4 or Article 9 of Regulation No 1049/2001 that the fact that a document has not previously been classified pursuant to Article 9(1) prevents an institution from refusing access to that document on the basis of Article 4. Accordingly, the mere fact that a document is not marked with one of the designations referred to in Article 9 of Regulation No 1049/2001 cannot prevent the exceptions provided for in Article 4(1)(a) thereof from applying, unless the latter provision is to be deprived of all practical effect (see, to that effect, judgment in Jurašinović v Council , C‑576/12 P, EU:C:2013:777, paragraphs 41, 42 and 47).
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47. De même, et inversement, le simple fait qu’un document ne soit pas qualifié de «sensible» au sens dudit article 9 ne saurait exclure l’application des exceptions prévues à l’article 4, paragraphe 1, sous a), du règlement n o 1049/2001 sans priver d’effet utile cette dernière disposition.
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53. It follows that all the international commitments challenged in this action must be assessed in relation to the provisions of Community law cited by the Commission in support of this action (see, to that effect, Commission v Denmark , paragraphs 36 to 42; Commission v Sweden , paragraphs 34 to 40; Commission v Finland , paragraphs 36 to 42; Commission v Belgium , paragraphs 47 to 53; Commission v Luxembourg , paragraphs 42 to 48, and Commission v Austria , paragraphs 46 to 52).
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50. Furthermore, as regards the condition laid down in the third indent of Article 1(a) of Directive 89/48, it follows from the homologation certificate issued by the Spanish Ministry of Education and Science that Mr Cavallera has the professional qualifications required to take up a regulated profession in Spain. Even if it were to be assumed that that does not follow expressly from the certificate, it is clearly established by Mr Cavallera’s enrolment in the register of the competent professional body in Spain.
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863,123 |
41. The first such situation is where the European Union intends to implement a particular obligation assumed in the context of those WTO agreements and the second where the EU act at issue refers explicitly to specific provisions of those agreements (see, to that effect, in particular judgments in Fediol v Commission , 70/87, EU:C:1989:254, paragraphs 19 to 22; Nakajima v Council , C‑69/89, EU:C:1991:186, paragraphs 29 to 32; Biret et Cie v Council , C‑94/02 P, EU:C:2003:518, paragraph 73; and Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht , C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 56).
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32. It follows from the above that the taking of annual leave in a period after the reference period has no connection to the hours worked by the worker during that later period. Consequently, a change, and in particular a reduction, of working hours when moving from full-time to part-time employment cannot reduce the right to annual leave that the worker has accumulated during the period of full‑time employment.
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863,124 |
42. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 88; Servizi Ausiliari Dottori Commercialisti , paragraph 61; and Essent Netwerk Noord and Others , paragraph 81).
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78. Moreover, the term "debt collection" refers to clearly circumscribed financial transactions, designed to obtain payment of a pecuniary debt, which are clearly different in nature from the exemptions set out in the first part of Article 13B(d)(3) of the Sixth Directive.
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863,125 |
26. It is clear from the Court’s settled case-law that, even though in proceedings for failure to fulfil obligations under Article 226 EC it is incumbent on the Commission to establish the existence of the failure it has alleged, Member States are nevertheless required, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular, according to Article 211 EC, in ensuring that the provisions of the EC Treaty and the measures taken by the institutions pursuant thereto are applied. When it is a question of checking whether the national provisions intended to ensure effective implementation of a directive are correctly applied in practice, the Commission is largely reliant on the information provided by the Member State concerned, and so that State cannot plead that there is a lack of specific information as to national law and practice put forward by the Commission and, therefore, the action is inadmissible (see Case C‑408/97 Commission v Netherlands , paragraphs 15 to 17, and case-law cited therein, and Case C‑248/05 Commission v Ireland [2007] ECR I‑00000, paragraphs 67 and 68, and case-law cited therein).
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29 As regards the alleged inadequacy of the statement of reasons, the Court has already held at paragraphs 28 and 36 of its judgment in United Kingdom v Council that the reasons for the directive are sufficiently stated since its preamble gives a sufficiently clear statement of the objectives pursued .
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35. According to settled case-law, the European Union’s non-contractual liability under the second paragraph of Article 340 TFEU is subject to the satisfaction of a number of conditions, namely the unlawfulness of the conduct alleged against the EU institution, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of (judgment in Agraz and Others v Commission , C‑243/05 P, EU:C:2006:708, paragraph 26 and case-law cited).
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27. It is also apparent from that decision that the main proceedings are of a fiscal nature, in so far as an entry of shares in the accounts at their real value at the time of their acquisition would enable the Belgian tax authorities to tax the company concerned on the basis of the capital gain made on the difference between the real value of those shares and their acquisition price.
| 0 |
863,127 |
27 Moreover, as the Austrian Government and the Commission have pointed out, the Court has repeatedly held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those falling within its scope is based essentially on the constituent elements of each particular benefit, in particular its purposes and the conditions on which it is granted (see, in particular, Case C-78/91 Hughes [1992] ECR I-4839, paragraph 14, and Joined Cases C-245/94 and C-312/94 Hoever and Zachow [1996] ECR I-4895, paragraph 17).
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64. S’agissant de l’interdiction de l’utilisation des filets maillants dérivants dont la longueur individuelle ou cumulée est supérieure à 2,5 kilomètres, la Cour a jugé que la limitation de l’usage de ces filets telle qu’elle résultait du règlement n° 345/92 a été adoptée dans le but primordial d’assurer la conservation et l’exploitation rationnelle des ressources halieutiques ainsi que la limitation de l’effort de pêche (voir arrêt Mondiet, précité, point 24).
| 0 |
863,128 |
86. In that connection, it must be recalled that it is for the Member States, in the absence of harmonisation and to the extent that uncertainties continue to exist in the current state of scientific research, to decide on their intended level of protection of human health and life and on whether to require prior authorisation for the marketing of foodstuffs, always taking into account the requirements of the free movement of goods within the Community (Case 174/82 Sandoz [1983] ECR 2445, paragraph 16; van Bennekom , paragraph 37; and Joined Cases C-158/04 and C-159/04 Alfa Vita Vassilipoulos and Carrefour-Marinopoulos [2006] ECR I-8135, paragraph 21).
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390. The Henss/Isoplus group contends that it could not be refused that reduction on the ground of aggravating circumstances or of the fact that it refrained, in the exercise of its rights of defence, to disclose certain information to the Commission, that it provided the Commission with incorrect information or that it disputed certain facts.
| 0 |
863,129 |
38. Finally, it is important to note that the intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see Case C‑459/93 Thyssen Haniel Logistic [1995] ECR I‑1381, paragraph 13; Case C‑396/02 DFDS [2004] ECR I‑8439, paragraph 29; and Case C‑183/06 RUMA [2007] ECR I‑1559, paragraph 36). It is common ground that the objective characteristics and properties of products such as those at issue in the main proceedings, including the form, colour and name under which they are marketed, correspond to those of a spirituous beverage.
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73. It was against that background that the Law establishing the Land Berlin transitional system was adopted, which provides — as its title suggests — for a transitional derogation for established civil servants. The allocation of steps or transitional steps to those civil servants was immediate and, following their definitive reclassification under the new Law on the remuneration of Land Berlin civil servants, their pay progression depends exclusively on the criteria specified in that law, that is to say, on professional experience and on performance, which means that age is no longer a factor.
| 0 |
863,130 |
38
In the judgments, the Court held, first of all, that the definitive regulation was vitiated by an infringement of the obligation imposed upon the Commission to examine the claims of producers for market economy treatment and to adjudicate upon each of those claims within a period of three months from the initiation of its investigation, in accordance with Article 2(7)(b) and (c) of Regulation No 384/96, including where the Commission has decided to use sampling as provided for in Article 17 of that regulation to calculate the dumping margins and the producers which have submitted those claims are not included in the sample selected (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraphs 36 to 40, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraphs 29 to 34).
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27. The fact that the note dated 15 July 2002 produced by Mr Gepp at the request of the Government of the Province of Styria regarding the interpretation of the assessments and conclusions contained in his own report seems to soften somewhat their implications cannot affect the finding made in the previous paragraph of this judgment. The same is true of the surveys of the corncrake population in the " Wörschacher Moos" SPA carried out in 2000 and 2002 and recording the presence, respectively, of three and two parading males, to which the Austrian Government refers to show that the creation of the extension of the golf course has not caused a significant reduction in that population.
| 0 |
863,131 |
26. In order to ascertain whether the information supplied by the Arbeitsgericht Bonn satisfies those requirements, the nature and scope of the questions raised have to be taken into consideration (see, to that effect, Confederación Española de Empresarios de Estaciones de Servicio , paragraph 29).
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62 Finally it should be noted that, as the Commission has rightly submitted, Community law does not prevent Member States from treating the issuing of bogus invoices improperly mentioning VAT as attempted tax evasion and from imposing, in such a case, fines or penalty payments prescribed by their domestic law.
| 0 |
863,132 |
21. Thus, a sign which, in relation to the goods or services in respect of which its registration as a mark is applied for, has descriptive character for the purposes of Article 3(1)(c) of the directive is therefore necessarily devoid of any distinctive character as regards those goods or services, within the meaning of Article 3(1)(b) of that directive (see Koninklijke KPN Nederland , paragraph 86, and Case C‑51/10 P Agencja Wydawnicza Technopol v OHIM [2011] ECR I‑0000, paragraph 33 and the case-law cited).
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13 According to the Commission, the Hellenic authorities have adduced no evidence to show that the statistical data first notified did not reflect the true position. Its refusal to take account of the figure subsequently notified was thus justified.
| 0 |
863,133 |
19. Even though, according to their wording, the provisions of the EC Treaty concerning freedom of establishment are directed to ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation (see, inter alia, Case C-264/96 ICI [1998] ECR I-4695, paragraph 21, and Case C-298/05 Columbus Container Services [2007] ECR I-0000, paragraph 33).
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36. Ainsi, pareil octroi de CCP multiples portant sur des «produits» distincts permet de rétablir une durée de protection effective suffisante du brevet, et uniforme s’agissant des deux CCP susmentionnés, en permettant à son titulaire de bénéficier d’une période d’exclusivité supplémentaire à l’expiration du brevet de base destinée à compenser, au moins partiellement, le retard pris dans l’exploitation commerciale de son ou de ses inventions en raison du laps de temps qui s’est écoulé entre la date du dépôt de la demande de brevet et celle de l’obtention de la première AMM dans l’Union européenne (voir arrêts du 11 novembre 2010, Hogan Lovells International, C‑229/09, Rec. p. I‑11335, point 50; ainsi que Actavis Group PTC et Actavis UK, précité, point 31).
| 0 |
863,134 |
15 According to established case-law, it is solely for the national courts before which proceedings are pending, and which must assume responsibility for the judgment to be given, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they submit to the Court (see, inter alia, Case C-127/92 Enderby [1993] ECR I-5535, paragraph 10; Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others [1994] ECR I-711, paragraph 17; and Case C-146/93 McLachlan [1994] ECR I-3229, paragraph 20). A request for a preliminary ruling from a national court may be rejected only if it is manifest that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the true facts or the subject-matter of the main proceedings (Case C-62/93 BP Supergas [1995] ECR I-1883, paragraph 10, and Case C-143/94 Furlanis [1995] ECR I-3633, paragraph 12).
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17 In that connection, the Court must reply that it has consistently held that it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. Dismissal of a request from a national court is possible where it is plainly apparent that the interpretation of Community law or the consideration of the validity of a Community rule, requested by that court, has no bearing on the real situation or on the subject-matter of the case in the main proceedings (see in particular the judgment in Case C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785, paragraphs 25 and 26). Such is not, however, the case in the cases at issue in the main proceedings.
| 1 |
863,135 |
47. Thus, it is of little importance that the act of transfer in question is for the purpose of creating another database, whether in competition with the original database or not, and whether the same or a different size from the original, nor is it relevant that the act is part of an activity, whether commercial or not, other than the creation of a database (see, to that effect, The British Horseracing Board and Others , paragraphs 47 and 48). Moreover, as is apparent from recital 44 in the preamble to Directive 96/9, the transfer of all or a substantial part of the contents of a protected database to another medium, which would be necessary for the purposes of a simple on‑screen display of those contents, is of itself an act of extraction that the holder of the sui generis right may make subject to his authorisation.
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12
It should be observed that, according to settled case-law of the Court, although it is true that the subject-matter of proceedings brought under Article 258 TFEU is circumscribed by the pre-litigation procedure provided for in that provision and, consequently, the Commission’s reasoned opinion and the application must be based on the same complaints, that requirement cannot go so far as to mean that in every case exactly the same wording must be used in each, where the subject-matter of the proceedings has not been extended or altered (see, in particular judgments in Commission v Germany, C‑433/03, EU:C:2005:462, paragraph 28; Commission v Finland, C‑195/04, EU:C:2007:248, paragraph 18; and Commission v Netherlands, C‑576/10, EU:C:2013:510, paragraph 34).
| 0 |
863,136 |
16. Relying implicitly on paragraphs 59 to 65 of the judgment in AG2R Prévoyance (C‑437/09, EU:C:2011:112), which left this question to be determined by national courts, the referring court considers that AG2R Prévoyance, although it is non-profit-making and acts on the basis of the principle of solidarity, was freely chosen by the social partners, following negotiations which concerned inter alia the arrangements pertaining to its appointment, from among the provident societies, mutual associations and insurance firms that were suitable to be appointed as the manager of a supplementary scheme such as the scheme concerned. AG2R Prévoyance must accordingly be regarded as an undertaking engaged in an economic activity which was chosen by the social partners from among other undertakings with which it is in competition on the market in the relevant insurance services.
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36. With regard to the Commission’s argument that a pick-up having an area for the transport of goods the inner length of which, at the floor, represents more than 50% of the length of the wheelbase of the vehicle, must be classified under heading 87.04 of the CN, it should be pointed out that the CN Explanatory Notes 2007 contain such a statement. Nevertheless, that characteristic cannot be the decisive one for classification of such a vehicle. Opposing such an interpretation is the fact that the Explanatory Notes to the CN do not take the place of those of the HS but should be regarded as complementary to them, as stated in the foreword to the Explanatory Notes to the CN. In addition, the CN Explanatory Notes 2006 to subheadings 8703 21 10 to 8703 24 90 refer expressly to the HS Explanatory Note to heading 8703 so that, according to those notes, the criterion stated by the Commission cannot be regarded as the sole classification criterion.
| 0 |
863,137 |
25. Whether inherent or acquired through use, distinctive character must be assessed in relation, on the one hand, to the goods or services in respect of which registration is applied for and, on the other, to the presumed expectations of an average consumer of the category of goods or services in question, who is reasonably well-informed and reasonably observant and circumspect (judgment in Case C-299/99 Philips [2002] ECR I-5475, paragraphs 59 and 63).
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48. As regards the admissibility of this plea, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-41/00 P Interporc Im- und Export v Commission [2003] ECR I‑2125, paragraph 15).
| 0 |
863,138 |
36. It should be borne in mind that the definition of ‘regulated profession’ within the meaning of Directive 2005/36 is a matter of EU law (see judgments in Rubino , C‑586/08, EU:C:2009:801, paragraph 23 and Peňarroja Fa , C‑372/09 and C‑373/09, EU:C:2011:156, paragraph 27).
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9 Consequently, the provisions of Article 59 must apply in all cases where a person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established.
| 0 |
863,139 |
78 With regard to the Commission's failure to observe the 20% `threshold' below which it is its policy not to require withdrawal in calculating the corrections on which it has decided, it should be observed that the Italian Government raised that argument for the first time at the hearing. Since the facts underlying it were already known at the stage of the written procedure, it must be rejected as out of time and therefore inadmissible (see Case C-55/91 Italy v Commission, cited above, paragraph 40; Case C-323/96 Commission v Belgium [1998] ECR I-5063, paragraph 38; and Case C-54/95 Germany v Commission [1999] ECR I-35, paragraph 28).
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47. Selon une jurisprudence constante, l’infliction d’une astreinte ne se justifie, en principe, que pour autant que perdure le manquement tiré de l’inexécution d’un précédent arrêt jusqu’à l’examen des faits par la Cour (arrêt Commission/Grèce, C‑378/13, EU:C:2014:2405, point 47).
| 0 |
863,140 |
59 While Article 36(1)(a) of Directive 92/50 leaves it to the contracting authority to choose the criteria on which it proposes to base the award of the contract, that choice may, however, relate only to criteria aimed at identifying the economically most advantageous tender (see, to that effect, concerning public works contracts, Beentjes, paragraph 19, Evans Medical and Macfarlan Smith, paragraph 42, and SIAC Construction, paragraph 36). Since a tender necessarily relates to the subject-matter of the contract, it follows that the award criteria which may be applied in accordance with that provision must themselves also be linked to the subject-matter of the contract.
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98. It is apparent, therefore, from those considerations that, as was noted by the Advocate General at point 58 of his Opinion, a simple presumption exists that the grant of an implied and unlimited State guarantee in favour of an undertaking which is not subject to the ordinary compulsory administration and winding-up procedures results in an improvement in its financial position through a reduction of charges which would normally encumber its budget.
| 0 |
863,141 |
88. Although in those circumstances Article 4(2) of Directive 85/337 gives the competent authority a degree of freedom in appraising whether or not a particular project must be made subject to an assessment, it is, however, clear from settled case-law that the limits of that discretion are to be found in the obligation, set out in Article 2(1) of the directive, that all projects which are likely to have significant effects on the environment are to be subject to an assessment (see, to that effect, Case C-435/97 WWF and Others [1999] ECR I-5613, paragraphs 44 and 45; Case C-87/02 Commission v Italy , paragraphs 43 and 44; and Case C‑83/03 Commission v Italy [2005] ECR I-4747, paragraph 19).
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13 FINALLY, IN VIEW OF THE IMPORTANCE OF THE PROBLEMS RAISED BY THE APPLICATION OF PROTOCOL I.7 FROM THE POINT OF VIEW BOTH OF THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS AND OF THE COMMON COMMERCIAL POLICY, THERE CAN BE NO DOUBT AS TO THE LEGAL INTEREST IN THE ACTION BROUGHT BY THE COMMISSION .
II - THE SUBSTANCE
| 0 |
863,142 |
39 Article 8(1) of Regulation No 729/70, which expressly lays down in this field the obligations imposed on Member States by Article 5 of the EC Treaty, defines, according to the Court's case-law, the principles according to which the Community and the Member States must ensure the implementation of Community decisions on agricultural intervention financed by the EAGGF and combat fraud and irregularities in relation to those operations. It obliges the Member States to take the measures necessary to satisfy themselves that the transactions financed by the EAGGF are actually carried out and are executed correctly (see Case C-2/93 Exportslachterijen van Oordegem v Belgische Dienst voor Bedrijfen en Landbouw [1994] ECR I-2283, paragraphs 17 and 18, and Case C-235/97 France v Commission [1998] ECR I-7555, paragraph 45).
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103. En outre, il ressort d’une jurisprudence constante que l’obligation de motivation qui incombe au Tribunal, en vertu des articles 36, première phrase, et 53, premier alinéa, du statut de la Cour de justice, n’impose pas à celui-ci d’effectuer un exposé qui suivrait de manière exhaustive et un par un tous les raisonnements articulés par les parties au litige. La motivation peut donc être implicite, à condition qu’elle permette à la personne affectée par un arrêt de prendre connaissance des motifs de la décision du Tribunal et à la Cour de disposer des éléments suffisants pour exercer son contrôle (voir, notamment, arrêts du 7 janvier 2004, Aalborg Portland e.a./Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P et C‑219/00 P, Rec. p. I‑123, point 372; du 21 septembre 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied/Commission, C‑105/04 P, Rec. p. I‑8725, point 72, ainsi que du 7 juin 2007, Wunenburger/Commission, C‑362/05 P, Rec. p. I‑4333, point 78).
| 0 |
863,143 |
60. Contrary to what is alleged by the Commission, the limitation period does not begin to run on the date on which the harmful event occurred, but from the moment at which the decision produces its effects vis-à-vis the persons concerned by it, namely as soon as the loss actually materialises in relation to those persons (see judgment in Case C-282/05 P Holcim (Deutschland) v Commission , paragraph 30).
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39. For the sake of completeness, it must be noted that, as recitals 3, 21 and 24 in the preamble to Regulation No 1782/2003 make clear, environmental protection forms part of the objectives of the single payment scheme. The Court has also held that environmental protection, one of the essential objectives of the European Union, must be regarded as forming part of the common agricultural policy (Case C-428/07 Horvath [2009] ECR I-6355, paragraph 29). Moreover, Article 2 point (1) of Regulation No 796/2004 expressly provides that arable land, and consequently agricultural areas pursuant to Article 2(a) of Regulation No 795/2004, is land maintained in good agricultural and environmental condition within the meaning of Article 5 of Regulation No 1782/2003.
| 0 |
863,144 |
59 The Court has consistently held in this regard that it is incumbent on the national courts to safeguard the rights of individuals when faced with any disregard by national authorities of the prohibition on the implementation of aid, which is set out in the final sentence of Article 93(3) of the Treaty and is directly effective. Such disregard, if relied on by individuals and confirmed by the national courts, must lead those courts to draw from it all the consequences in accordance with their national law, without their decisions, however, implying an assessment of the compatibility of the aid with the common market, which is a matter within the exclusive competence of the Commission, subject to review by the Court (see CELBI, cited above, paragraph 23, Case C-354/90 Fédération Nationale du Commerce Extérieur des Produits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon [1991] ECR I-5505, paragraph 14, and Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraphs 40 and 42).
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38. Firstly, even if two successive supplies give rise only to a single movement of goods, they must be regarded as having followed each other in time. The intermediary acquiring the goods can transfer the right to dispose of the goods as owner to the second person acquiring the goods only if it has previously been transferred to him by the first vendor and, therefore, the second supply can take place only after the first supply has been effected.
| 0 |
863,145 |
38. First, regarding the prevention of tax evasion, it should be noted that the mere fact that a resident taxpayer uses the services of a non-resident service provider cannot provide a sound basis for a general presumption of abusive practices and justify a measure which compromises the exercise of a fundamental freedom guaranteed by the Treaty (see, by analogy, Case C-436/00 X and Y [2002] ECR I-10829, paragraph 62; Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I-7995, paragraph 50; Case C-524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I-2107, paragraph 73; Case C-105/07 Lammers & Van Cleeff [2008] ECR I-173, paragraph 27; and Jobra , paragraph 37).
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76. As regards hospital services, such as those provided to Ms Van Riet in Deurne hospital, the Court, in paragraphs 76 to 80 of the judgment in Smits and Peerbooms , made the following findings.
| 0 |
863,146 |
37
As regards Article 15(1), it is settled case-law that there is ‘genuine use’ of a trade mark, within the meaning of that provision, where the mark is used in accordance with its essential function, which is to guarantee the identity of origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (see, inter alia, judgments of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43; of 13 September 2007, Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 72; and of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 29).
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103. However, and contrary to the assertions made by the Kingdom of Spain, that fact is not in itself sufficient to mean that the obligation to comply with the judgment in Commission v Spain has been met.
| 0 |
863,147 |
34
In that regard, the Court has already held that the Member States have considerable latitude in determining both the means and the level of protection of rights to old-age benefits under supplementary occupational pension schemes in the event of the insolvency of the employer, which precludes an obligation to guarantee in full (judgments of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraphs 36 and 42 to 45, and of 25 April 2013, Hogan and Others, C‑398/11, EU:C:2013:272, paragraph 42).
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52. It should be recalled that, according to settled case-law, a complaint directed against a ground included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and is therefore nugatory ( Dansk Rørindustri and Others v Commission , paragraph 148, and orders of 23 February 2006 in Case C-171/05 P Piau v Commission , paragraph 86, and of 9 March 2007 in Case C‑188/06 P Schneider Electric v Commission , paragraph 64).
| 0 |
863,148 |
21. Furthermore, by virtue of Article 21 of the Statute of the Court of Justice of the European Union and Article 38(1)(c) of its Rules of Procedure, the Commission must, in any application made under Article 258 TFEU, indicate the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based (see, to that effect, Case C‑52/90 Commission v Denmark [1992] ECR I‑2187, paragraph 17; Case C‑508/03 Commission v United Kingdom , paragraph 62; and Case C‑487/08 Commission v Spain [2010] ECR I‑0000, paragraph 71).
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13. That prohibition hinders credit institutions which are subsidiaries of foreign companies in raising capital from the public, by depriving them of the possibility of competing more effectively, by paying remuneration on sight accounts, with the credit institutions traditionally established in the Member State of establishment, which have an extensive network of branches and therefore greater opportunities than those subsidiaries for raising capital from the public.
| 0 |
863,149 |
21. In that respect, it should be noted that, at paragraphs 30 to 34 of its judgment in Case C-19/03 Verbraucher-Zentrale Hamburg [2004] ECR I‑8183, the Court has already had occasion to examine the objectives of Regulation No 1103/97.
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95. Bien que l’article 260, paragraphe 1, TFUE ne précise pas le délai dans lequel l’exécution d’un arrêt doit intervenir, l’intérêt qui s’attache à une application immédiate et uniforme du droit de l’Union exige, selon une jurisprudence constante de la Cour, que cette exécution soit entamée immédiatement et aboutisse dans des délais aussi brefs que possible (voir, notamment, arrêt Commission/Portugal, C‑76/13, EU:C:2014:2029, point 57).
| 0 |
863,150 |
30 In the Barber judgment the Court, having held that pensions paid under contracted-out schemes fall within the scope of Article 119, held that it makes no difference if 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).
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À supposer qu’une telle justification, constituant une raison impérieuse d’intérêt général, existe, encore faut-il que la
même taxe respecte le principe de proportionnalité (voir ordonnance van de Coevering, C‑242/05, EU:C:2006:430, point 27, ainsi
que arrêt van Putten e.a., C‑578/10 à C‑580/10, EU:C:2012:246, point 53).
| 0 |
863,151 |
41. More specifically, the Court has consistently held that indirect discrimination on grounds of sex arises where a national measure, albeit formulated in neutral terms, puts considerably more workers of one sex at a disadvantage than the other (see, inter alia, Z , C‑363/12, EU:C:2014:159, paragraph 53 and the case-law cited). Such a measure is compatible with the principle of equal pay only if the difference in treatment between the two categories of workers to which it gives rise is justified by objective factors unrelated to any discrimination on grounds of sex (see, inter alia, Rinner-Kühn , 171/88, EU:C:1989:328, paragraph 12; Voß, EU:C:2007:757, paragraph 38; and Brachner , C‑123/10, EU:C:2011:675, paragraph 70).
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38. In a situation where that difference in treatment affects a considerably higher number of women than men and to the extent that there are no objective factors wholly unrelated to sex discrimination which might justify such a difference in treatment, Article 141 EC precludes the relevant national legislation.
| 1 |
863,152 |
47 As to that, although the imposition of price controls is indeed a factor which may, in certain conditions, distort competition between Member States, that circumstance cannot justify a derogation from the principle of free movement of goods. It is well settled that distortions caused by different price legislation in a Member State must be remedied by measures taken by the Community authorities and not by the adoption by another Member State of measures incompatible with the rules on free movement of goods (see Case 16/74 Winthrop [1974] ECR 1183, paragraph 17; Joined Cases 55/80 and 57/80 Musik-Vertrieb Membran and K-tel International v GEMA [1981] ECR 147, paragraph 24; and Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others [1996] ECR I-3457, paragraph 46).
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40 With regard to the discrimination at issue in the main proceedings, it is objectively linked to the setting of pensionable ages which differ for women and men in so far as it ensues directly from the fact that those pensionable ages are set at 55 for women and at 60 for men. The rule applicable to both men and women is that they may rely on their right to early retirement no more than five years before the date on which they reach the age at which they become entitled to a retirement pension and that they are entitled to credit for retirement contributions in respect of the period between their entry into retirement and the date on which they reach that age.
| 0 |
863,153 |
167
As regards the justification based on grounds of social policy which the Hungarian Government advances, it should be recalled, first, that, according to settled case-law of the Court, developed in relation to the betting and gaming sector, the mere fact that the profits which arise from an economic activity carried out in the context of special or exclusive rights are used for financing social actions or welfare is not a ground that may be regarded as an objective justification for restrictions of the freedom to provide services (see to that effect, see, inter alia, judgments in Läärä and Others, C‑124/97, EU:C:1999:435, paragraph 13 and the case-law cited; Zenatti, C‑67/98, EU:C:1999:514, paragraph 36; and Stoß and Others, C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, EU:C:2010:504, paragraph 104).
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31. In that regard, reference must be made to the rules and principles of international law relating to the legal regime applicable to the continental shelf.
| 0 |
863,154 |
55. That is true of a residence condition such as the one to which the grant of the benefit at issue in the main proceedings is subject, which can be more easily met by national workers than by those from other Member States, since the latter workers above all, particularly in the case of unemployment or invalidity, tend to leave the country in which they were formerly employed to return to their countries of origin (see, to that effect, Paraschi , cited above, paragraph 24, and Case C‑290/00 Duchon [2002] ECR I‑3567, paragraph 38).
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37. As is clear from Article 1 of Directive 2001/42, the fundamental objective of that directive is to ensure that plans and programmes which are likely to have significant effects on the environment are subject to an environmental assessment when they are prepared and prior to their adoption.
| 0 |
863,155 |
47. In particular, Articles 1(1) and 2(1) and the first, fifth, sixth, eighth and 11th recitals in the preamble make clear that the Directive’s fundamental objective is that, before consent is granted, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to a mandatory assessment with regard to their effects (see to that effect Case C-287/98 Linster [2000] ECR I-6917, paragraph 52).
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42. Those three conditions are necessary and sufficient to found a right in individuals to obtain redress on the basis of European Union law directly, although this does not mean that the Member State concerned cannot incur liability under less strict conditions on the basis of national law (see Brasserie du Pêcheur and Factortame , paragraph 66).
| 0 |
863,156 |
93
In that regard, it must be observed that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as aid (see, inter alia, judgments of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 83, and of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 94 and the case-law cited).
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56. In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary, first, to interpret notions relating to that freedom, such as journalism, broadly. Secondly, and in order to achieve a balance between the two fundamental rights, the protection of the fundamental right to privacy requires that the derogations and limitations in relation to the protection of data provided for in the chapters of the directive referred to above must apply only in so far as is strictly necessary.
| 0 |
863,157 |
25 As regards, in particular, the compensation granted by an employer to an employee on termination of his employment, the Court has already stated that such compensation is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances arising from such termination (see Barber, cited above, paragraph 13, and Case C-33/89 Kowalska [1990] ECR I-2591, paragraph 10).
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35. Under that provision, the host Member State is not obliged to confer entitlement to social assistance on, among others, job-seekers for the longer period during which they have the right to reside there.
| 0 |
863,158 |
41. The TRIPs Agreement was concluded by the Community and its Member States by virtue of shared competence (Joined Cases C‑300/98 and C‑392/98 Dior and Others [2000] ECR I‑11307, paragraph 33, and Case C‑431/05 Merck Genéricos – Produtos Farmacêuticos [2007] ECR I‑7001, paragraph 33). In those circumstances, the parties to the main proceedings and the governments which have submitted observations argue that, in order to answer the first question, it must be examined whether, at the present stage of development of the law, the European Union has exercised its powers in the field of patents, or, more precisely, of patentability.
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16 In this instance, the Directeur des Contributions does not act as such a third party. Being at the head of the Direction des Contributions Directes et des Accises (Direct Taxes and Excise Duties Directorate), he has a clear organizational link with the departments which made the disputed tax assessment, against which the complaint submitted to him is directed. This is confirmed, moreover, by the fact that, if the matter were to come before the Conseil d' État on appeal, the Directeur des Contributions would be a party to the proceedings.
| 0 |
863,159 |
139. It must be recalled, first of all, that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (see Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR I‑0000, paragraph 72 and the case-law cited).
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68. According to case-law, whether there is abuse or fraudulent conduct must be examined individually on a case-by-case basis and must be based on objective evidence (see Centros , paragraphs 24 and 25, and X and Y , paragraphs 42 and 43).
| 0 |
863,160 |
47. As regards, in particular, agreements of an anti-competitive nature reached, as in the present case, at meetings of competing undertakings, the Court has already held that an infringement of Article 81(1) EC is constituted when those meetings have as their object the restriction, prevention or distortion of competition and are thus intended to organise artificially the operation of the market ( Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 508 and 509). In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Case C-199/2 P Hüls v Commission [1999] ECR I‑4287, paragraph 155, and Aalborg Portland and Others v Commission , paragraph 81).
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36. Furthermore, as Shield Mark, the intervening Governments and the Commission have stated, sound signs are not by nature incapable of distinguishing the goods or services of one undertaking from those of other undertakings.
| 0 |
863,161 |
48. Nevertheless, according to case-law that is also well-established, it is incompatible with the rules governing the right of deduction under Directive 2006/112 to impose a penalty, in the form of refusal of that right, on a taxable person who did not know, and could not have known, that the transaction concerned was connected with fraud committed by the supplier, or that another transaction forming part of the chain of supply prior or subsequent to the transaction carried out by the taxable person was vitiated by VAT fraud (see, inter alia, Joined Cases C-354/03, C-355/03 and C-484/03 Optigen and Others [2006] ECR I-483, paragraphs 52 and 55; Kittel and Recolta Recycling , paragraphs 45, 46 and 60; Mahagében and Dávid , paragraph 47; and Bonik , paragraph 41).
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61. That applies all the more strongly where, as in the main proceedings, the mortgaged property is the family home of the consumer whose rights have been infringed, since that means of consumer protection is limited to payment of damages and interest and does not make it possible to prevent the definitive and irreversible loss of that dwelling.
| 0 |
863,162 |
28 Finally, the person liable must have complied with all of the provisions laid down by the rules in force as far as his customs declaration is concerned. Moreover, it is for the national court to establish whether, having regard to the facts of the case, the three conditions laid down in Article 5(2) of Regulation No 1697/79 are fulfilled (Olasagasti, cited above, paragraph 36).
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76. Or, ainsi qu’il ressort de l’examen du premier grief, l’application d’un taux réduit de TVA aux livraisons de chevaux lorsque ces derniers ne sont pas destinés à être utilisés dans la préparation des denrées alimentaires ou dans la production agricole viole les articles 96 à 99 et l’annexe III de la directive TVA.
| 0 |
863,163 |
100. As recalled in paragraph 87 of the present judgment, a restriction of Article 49 EC can be justified only to the extent that the public interest sought to be protected by national legislation is not safeguarded by the rules to which the service provider is subject in the Member State of establishment. The Court has thus held, in particular, that a national authorisation scheme goes beyond what is necessary where the requirements to which the issue of authorisation is subject duplicate the equivalent evidence and safeguards required in the Member State of establishment, inferring in particular an obligation on the part of the host Member State to take account of controls and verifications already carried out in the Member State of establishment (see, to that effect, Case 279/80 Webb [1981] ECR 3305, paragraph 20; Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 47; Case C‑355/98 Commission v Belgium , paragraph 38; and Case C‑171/02 Commission v Portugal , paragraphs 60 and 66).
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86. Since the Commission sent separate statements of objections to TKS and Thyssen and those undertakings replied separately concerning the acts imputed to each of them, it was incumbent on the Commission to question and hear the views of TKS concerning Thyssen’s actions before deeming it to be responsible for the latter and imposing on it a fine for the infringement attributed to Thyssen.
| 0 |
863,164 |
63. As regards the Greek Government’s argument that an action for a declaration of failure to fulfil obligations would have been more appropriate in penalising the delay in establishing the register of olive cultivation, it should be noted that an action for failure to fulfil obligations under Article 226 EC and the procedure for the clearance of the EAGGF accounts pursue different aims and are governed by different rules. In the latter procedure, the Commission is under an obligation to carry out a financial correction if the expenditure in respect of which financing has been requested has not been carried out in accordance with Community rules. Such a financial correction is designed to avoid the EAGGF’s being burdened with amounts that have not served to finance an objective pursued by the Community legislation in question and therefore, contrary to what the Greek Government maintains, does not constitute a penalty (see Case C-247/98 Greece v Commission [2001] ECR I-1, paragraphs 13 and 14).
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47 Consequently, the administrative concession confirmed by the 1976 instruction violates the principle of fiscal neutrality and gives rise to a distortion of competition.
| 0 |
863,165 |
63. By contrast, the first paragraph of Article 7 of Decision No 1/80 provides expressly that the family member’s right to join the migrant Turkish worker is subject to the authorisation to that effect granted in accordance with the conditions laid down by the legislation of the host Member State (see Case C-275/02 Ayaz [2004] ECR I-8765, paragraphs 34 and 35).
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83. Although it cannot be excluded that an objective of rewarding workers ' loyalty to their employers in the context of policy concerning research or university education constitutes a pressing public-interest reason, given the particular characteristics of the measure at issue in the main proceedings, the obstacle which it entails clearly cannot be justified in the light of such an objective.
| 0 |
863,166 |
68. Observance of the right to be heard in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed constitutes a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings (see Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9).
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9OBSERVANCE OF THE RIGHT TO BE HEARD IS IN ALL PROCEEDINGS IN WHICH SANCTIONS , IN PARTICULAR FINES OR PENALTY PAYMENTS , MAY BE IMPOSED A FUNDAMENTAL PRINCIPLE OF COMMUNITY LAW WHICH MUST BE RESPECTED EVEN IF THE PROCEEDINGS IN QUESTION ARE ADMINISTRATIVE PROCEEDINGS .
ARTICLE 19 ( 1 ) OF COUNCIL REGULATION NO 17 OBLIGES THE COMMISSION , BEFORE TAKING A DECISION IN CONNEXION WITH FINES , TO GIVE THE PERSONS CONCERNED THE OPPORTUNITY OF PUTTING FORWARD THEIR POINT OF VIEW WITH REGARD TO THE COMPLAINTS MADE AGAINST THEM .
SIMILARLY ARTICLE 4 OF REGULATION NO 99/63 OF THE COMMISSION OF 25 JULY 1963 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963 , P . 47 ) ON THE HEARING PROVIDED FOR ARTICLE 19 OF REGULATION NO 17 PROVIDES THAT THE COMMISSION SHALL IN ITS DECISIONS DEAL ONLY WITH THOSE OBJECTIONS RAISED AGAINST UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS IN RESPECT OF WHICH THEY HAVE BEEN AFFORDED THE OPPORTUNITY OF MAKING KNOWN THEIR VIEWS .
| 1 |
863,167 |
36
A preliminary point to make is that, according to the Court’s settled case-law, in the procedure laid down in Article 267 TFEU, which provides for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court may have to reformulate the questions referred to it. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court of Justice to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 15 October 2015, Biovet, C‑306/14, EU:C:2015:689, paragraph 17 and the case-law cited).
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30. The first part of the second plea and the fourth plea must therefore be rejected.
First plea and second part of the second plea
| 0 |
863,168 |
47. It should be recalled that the Court of First Instance alone has jurisdiction to examine how in each particular case the Commission appraised the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 85 of the Treaty and Article 15 of Regulation No 17 and, second, to consider whether the Court of First Instance responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced (see, in particular, Baustahlgewebe , paragraph 128).
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37
It is appropriate to observe, however, that a service such as that in the main proceedings is more than an intermediation service consisting of connecting, by means of a smartphone application, a non-professional driver using his or her own vehicle with a person who wishes to make an urban journey.
| 0 |
863,169 |
66. The recovery of unlawful aid is the logical consequence of a finding that it is unlawful (see Tubemeuse , paragraph 66) and seeks to re-establish the previously existing situation (Case C-382/99 Netherlands v Commission [2002] ECR I-5163, paragraph 89).
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38. By its question, the national court also asks whether laying a mains connection forms part of the water supplies covered by Category 2 of Annex H to the Sixth Directive.
| 0 |
863,170 |
17. The Sąd Najwyższy observes that the Court has held that Article 58 of the 2003 Act of Accession precludes obligations contained in Community legislation which has not been published in the Official Journal of the European Union in the language of a new Member State, where that language is an official language of the European Union, from being imposed on individuals in that State, even though those persons could have become acquainted with that legislation by other means (Case C‑161/06 Skoma-Lux [2007] ECR I‑10841, paragraphs 57 to 59, and Case C‑560/07 Balbiino [2009] ECR I‑4447, paragraph 30).
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37. At the outset, it should be borne in mind that, according to settled case‑law, 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, inter alia, Case C‑301/98 KVS International [2000] ECR I‑3583, paragraph 21; Case C‑53/05 Commission v Portugal [2006] ECR I‑6215, paragraph 20; and Case C‑298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbände [2008] ECR I-0000, paragraph 15).
| 0 |
863,171 |
80 According to the Court's case-law the principle of equal treatment, of which Article 59 of the Treaty is a specific expression, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, Case 3/88 Commission v Italy [1989] ECR 4035, paragraph 8).
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55 In determining whether the Commission was required to hear the applicant and consult the Advisory Committee before adopting the decision imposing the periodic penalty payment, it should be borne in mind that the fixing of periodic penalty payments under Article 16 of Regulation No 17 necessarily involves two stages . In its first decision, referred to in Article 16(1 ), the Commission imposes a periodic penalty payment expressed in terms of a number of units of account per day of delay, calculated from a date fixed by it . Since that decision does not determine the total amount of the periodic penalty payment, it cannot be enforced . That amount can be definitively fixed only in another decision .
| 0 |
863,172 |
81. Nor, finally, could the fact that the Commission did not call into question the aid granted to Coillte Teoranta prior to 1997 lead Ireland to believe that the grant of aid to that undertaking for loss of income would never be called into question in the future. The Court has ruled on several occasions that, where the Commission has tolerated irregularities on grounds of fairness, the Member State concerned does not acquire any right to demand that the same position be taken with regard to irregularities committed in the following financial year by virtue of the principle of legal certainty or the principle of the protection of legitimate expectations (see, inter alia, Case C-54/95 Germany v Commission [1999] ECR I-35, paragraph 12). This must apply a fortiori in cases in which the Commission had not detected the type of irregularities in question during the preceding financial years.
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35. Or, s’agissant des répercussions économiques pouvant découler d’un arrêt de la Cour disant pour droit que l’article 110 TFUE s’oppose à un régime de taxation tel que celui instauré par l’OUG n° 50/2008, le gouvernement roumain s’est essentiellement limité à faire état du nombre élevé de demandes de remboursement de la taxe perçue, qui s’élèverait à 40 000 environ, et à faire référence à la crise économique frappant la Roumanie.
| 0 |
863,173 |
36. Those factors must be assessed in a comprehensive manner, account being taken of the individual circumstances of each particular case ( Interedil , paragraph 52).
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29. It follows that the obligation to register the imports concerned, in the specific context of a circumvention, is also aimed at ensuring the effectiveness of the extended definitive measures by making possible the retroactive application of duties and thereby avoiding a situation in which the definitive measures to be applied are deprived of their effectiveness. In that respect, since the Commission has directed the competent national authorities to take the appropriate steps to register the imports concerned in order to ensure the retroactive imposition of extended anti‑dumping duties, those authorities are required to comply with that obligation.
| 0 |
863,174 |
46
Consequently, it is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the European Union legal order, be moved to restrict the opportunity to rely on a provision which it has interpreted. Two essential criteria must be fulfilled before such a limitation can be imposed, namely, that those concerned should have acted in good faith, and that there should be a risk of serious difficulties (judgments of 10 January 2006 in Skov and Bilka, C‑402/03, EU:C:2006:6, paragraph 51, and of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 54).
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25 FAR FROM INVOLVING A DEPARTURE FROM THESE FUNDAMENTAL RULES, THEREFORE, THE OBJECT OF THE RULES RELATING TO THE COMMON TRANSPORT POLICY IS TO IMPLEMENT AND COMPLIMENT THEM BY MEANS OF COMMON ACTION .
| 0 |
863,175 |
18. It should be pointed out that the Court has already ruled on that question, which was referred by the Consiglio di Stato, in its judgment in SOA Nazionale Costruttori (C‑327/12, EU:C:2013:827).
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35. Dans ces conditions, il convient de constater que, de même que la Cour a reconnu la qualité d’entreprise à un constructeur d’automobiles en tant qu’il opérait sur le marché de la certification des automobiles en délivrant des certificats de conformité nécessaires à leur immatriculation (arrêt du 11 novembre 1986, British Leyland/Commission, 226/84, Rec. p. 3263), les SOA doivent être considérées, dans le cadre de leur activité de certification, comme des «entreprises» au sens des articles 101 TFUE, 102 TFUE et 106 TFUE.
| 1 |
863,176 |
57. An executive authority may be authorised by a legal provision to specify the activities of bodies governed by public law exempted under Article 13 or Article 28 of the Sixth Directive which are considered to be activities of public authorities, provided that its decisions of application have an unquestionable binding force, comply with the requirements that they be specific, precise and clear so as to guarantee legal certainty and may be reviewed by the national courts (see, by analogy, Fazenda Pública , paragraph 35).
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38. Thus, the Court has held that, whenever the failure to observe the measures required by the directives which relate to air quality and drinking water, and which are designed to protect public health, could endanger human health, the persons concerned must be in a position to rely on the mandatory rules included in those directives (see Case C‑361/88 Commission v Germany ; Case C‑59/89 Commission v Germany ; and Case C‑58/89 Commission v Germany ).
| 0 |
863,177 |
45. The Court, for its part, has always emphasised that the public policy exception is a derogation from the fundamental principle of freedom of movement for persons which must be interpreted strictly and that its scope cannot be determined unilaterally by the Member States ( Rutili , paragraph 27; Bouchereau , paragraph 33; Calfa , paragraph 23; and Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257, paragraphs 64 and 65).
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43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC.
| 0 |
863,178 |
19 In Vroege (paragraphs 20 to 27) and Fisscher (paragraphs 17 to 24) the Court stated that the limitation of the effects in time of the Barber judgment concerned only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions, in particular those of Directive 86/378.
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39
In that regard, the Court has pointed out that the rule of special jurisdiction in matters relating to tort, delict or quasi-delict does not pursue the same objective as the rules on jurisdiction laid down in Sections 3 to 5 of Chapter II of Regulation No 1215/2012, which are designed to offer the weaker party stronger protection (see, to that effect, judgment of 25 October 2012, Folien Fischer and Fofitec, C‑133/11, EU:C:2012:664, paragraph 46). The criterion of the centre of interests is intended to determine the place in which damage caused by online content occurs and, consequently, the Member State whose courts are best able to hear and to rule upon the dispute.
| 0 |
863,179 |
36. In that regard, the Court has emphasised that the distinction between ‘infringements by object’ and ‘infringements by effect’ arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition (Case C-209/07 Beef Industry Development Society and Barry Brothers (‘BIDS’) [2008] ECR I-8637, paragraph 17, and Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I-4529, paragraph 29).
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133 In that regard, it must be stated that, as the sixth recital in the preamble to Regulation No 1287/95 makes clear, the intention of the Community legislature in establishing the period referred to in Article 5(2)(c) of Regulation No 729/70, as amended by Regulation No 1287/95, was to determine the maximum period to which the consequences to be drawn from the [Commission's] checks on conformity may be applied. The purpose of that limitation is to protect Member States against the absence of legal certainty which would exist if the Commission were able to call into question expenditure incurred several years before the adoption of a compliance decision.
| 0 |
863,180 |
23. À cet égard, la Cour a déjà jugé que les règles de compétences spéciales, telles que celle prévue à l’article 5, point 1, sous a), du règlement n° 44/2001, sont d’interprétation stricte (arrêt ÖFAB, précité, point 31), et que les termes «matière contractuelle», figurant à cette disposition ne sauraient être compris comme visant une situation dans laquelle il n’existe aucun engagement librement assumé d’une partie envers une autre (voir arrêts du 17 juin 1992, Handte, C‑26/91, Rec. p. I‑3967, point 15; du 27 octobre 1998, Réunion européenne e.a., C‑51/97, Rec. p. I‑6511, point 17; du 17 septembre 2002, Tacconi, C‑334/00, Rec. p. I‑7357, point 23; du 5 février 2004, Frahuil, C‑265/02, Rec. p. I‑1543, point 24; du 20 janvier 2005, Engler, C‑27/02, Rec. p. I-481, point 50, et ÖFAB, précité, point 33).
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126. In the interests of transparency the Commission adopted the Guidelines, in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine.
| 0 |
863,181 |
46. It should be recalled that it is settled case-law that the determination of the existence of injury caused to the Union industry requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts relied on have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. That is particularly the case as regards the determination of the factors injuring the Union industry in an anti-dumping investigation (see judgments in Ikea Wholesale , C‑351/04, EU:C:2007:547, paragraph 41; Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 29; Valimar , C‑374/12, EU:C:2014:2231, paragraph 51; and TMK Europe , C‑143/14, EU:C:2015:236, paragraph 34).
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51. In that regard, it must be borne in mind at the outset that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see, to that effect, judgments in Ikea Wholesale , C‑351/04, EU:C:2007:547, paragraphs 40 and 41, and Council and Commission v Interpipe Niko Tube and Interpipe NTRP , C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 63).
| 1 |
863,182 |
46. It is thus clear from case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the general interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49, and Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55). Likewise, as regards the decisions which Directive 90/435 leaves in the hands of the Member States, the Court has pointed out that these may be exercised only in compliance with the fundamental provisions of the Treaty, in particular those relating to freedom of establishment ( Keller Holding , paragraph 45).
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37. It follows that the special rules of jurisdiction in Articles 13 to 15 of the Brussels Convention apply, in principle, only where the contract is concluded between the parties for the purpose of a use other than a trade or professional one of the relevant goods or services.
| 0 |
863,183 |
87. Situations falling within the scope of Community law include those involving the exercise of the fundamental freedoms guaranteed by the EC Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC (see, in particular, Grzelczyk , paragraph 33; D’Hoop , paragraph 29; Garcia Avello , paragraph 24; and Pusa , paragraph 17).
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26. Il y a lieu de rappeler que, selon une jurisprudence constante, l’interdiction des mesures d’effet équivalent à des restrictions quantitatives à l’importation édictée à l’article 34 TFUE vise toute mesure des États membres susceptible d’entraver directement ou indirectement, actuellement ou potentiellement, le commerce intracommunautaire (arrêt Commission/Belgique, C‑150/11, EU:C:2012:539, point 50 et jurisprudence citée).
| 0 |
863,184 |
19. The Court has stated in that regard that taxes, duties and charges must, in any event, be regarded as being imposed on the movement of goods and services in a way comparable to VAT if they exhibit the essential characteristics of VAT, even if they are not identical to it in every way ( KÖGÁZ and Others , paragraph 35 and the case-law cited).
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171. Furthermore, as the Advocate General noted at point 121 of his Opinion, it may be that a Member State will be able to demonstrate that a restriction on capital movements to or from non-member countries is justified for a particular reason in circumstances where that reason would not constitute a valid justification for a restriction on capital movements between Member States.
| 0 |
863,185 |
59. In those circumstances, the Community Court must restrict itself to considering whether the exercise of that discretion is vitiated by manifest error or misuse of powers and whether the Community institutions clearly exceeded the bounds of their discretion (see Antillean Rice Mills and Others v Commission , cited above, paragraph 48, Case C-110/97 Netherlands v Council , cited above, paragraph 62, and Case C-301/97 Netherlands v Council , cited above, paragraph 74).
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59. Regarding the risk of serious difficulties, at the hearing the Polish Government produced figures relating to the period from 1 May 2004, the date on which the Republic of Poland acceded to the European Union, and 30 April 2006, thus a two-year period, and showing that the total excise duties levied on passenger cars amounted to 1.16% of the budget revenues forecasted for 2006. However, the Court has not been provided with a breakdown of those figures, which would have afforded the opportunity to assess what proportion of that total would give rise to reimbursement. Moreover, only the excise duty amounts exceeding those corresponding to the residual duty included in similar second-hand vehicles originating from the Member State concerned must be reimbursed.
| 0 |
863,186 |
33
The requirement that the person at issue performs the essential part of its activities with the controlling authority or authorities is designed to ensure that Directive 2004/18 remains applicable in the event that an undertaking controlled by one or more authorities is active in the market, and therefore liable to be in competition with other undertakings. An undertaking is not necessarily deprived of freedom of action merely because the decisions concerning it are controlled by the controlling municipal authority or authorities, if it can still carry out a large part of its economic activities with other operators. By contrast, where that undertaking’s services are mostly intended for that authority or those authorities alone, it seems justified that that undertaking should not be subject to the restrictions of Directive 2004/18, since they are in place to preserve a state of competition which, in that case, no longer has any raison d’être (see, by analogy, judgment of 11 May 2006, Carbotermo and Consorzio Alisei, C‑340/04, EU:C:2006:308, paragraphs 60 to 62).
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22 It is true that the profit margin of 5% was applied without any differentiation between the various traders concerned for the purpose of constructing the normal value of plain paper photocopiers . However, the traders in question, who are limited in number, were identified by the institutions, and it was precisely in order to reflect the particular features of their business dealings with producers that the profit margin used was set at 5 %.
| 0 |
863,187 |
44. According to the case-law of the Court, failure to observe the obligation to notify constitutes a procedural defect in the adoption of the technical regulations concerned, and renders those technical regulations inapplicable and therefore unenforceable against individuals (see, in particular, CIA Security International , paragraph 54, and Lemmens , paragraph 33). Individuals may rely on that inapplicability before the national court which must decline to apply a national technical regulation which has not been notified in accordance with Directive 98/34 (see, in particular, CIA Security International , paragraph 55, and Sapod Audic , paragraph 50).
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26. According to settled case-law, Article 56 TFEU confers rights not only on the provider of services but also on the recipient of those services (see, inter alia, Luisi and Carbone , 286/82 and 26/83, EU:C:1984:35, paragraph 10; FKP Scorpio Konzertproduktionen , EU:C:2006:630, paragraph 32; and X , C‑498/10, EU:C:2012:635, paragraph 23).
| 0 |
863,188 |
31. Moreover, according to the case-law of the Court, Article 267 TFEU establishes a non-contentious procedure which is in the nature of a step in the action pending before the national court and the parties to the main proceedings are merely invited to state their case within the legal limits laid down by the national court. In that context, the Court noted that, by the expression ‘parties’, the first paragraph of Article 23 of the Statute of the Court of Justice refers to the parties to the action before the national court (see, inter alia, Case 62/72 Bollmann [1973] ECR 269, paragraph 4, and the order in Case C‑73/07 Satakunnan Markkinapörssi and Satamedia [2007] ECR I‑7075, paragraph 11).
|
40
As the Advocate General observes in point 44 of his Opinion, the interpretation of the condition relating to general economic interest must be set in the new context following from the entry into force of the Treaty of Lisbon, which includes, as well as Article 106 TFEU, Article 14 TFEU, Protocol (No 26) on services of general interest, annexed to the EU Treaty, as amended by the Treaty of Lisbon, and the FEU Treaty (‘Protocol No 26’), and the Charter of Fundamental Rights of the European Union, which has acquired the same legal value as the Treaties, in particular Article 36 of the Charter on access to services of general economic interest.
| 0 |
863,189 |
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).
|
22 As regards the criterion of serious difficulties, the Court also held in the Barber judgment that if any male worker concerned could, like Mr Barber, retroactively assert the right to equal treatment in cases of discrimination which, until then, could have been considered permissible in view of the exceptions provided for in Directive 86/378, the financial balance of many occupational schemes might be upset retroactively (paragraph 44).
| 0 |
863,190 |
47. Secondly, while Regulation No 2092/91 does not preclude the Member States from conferring on private bodies rights and powers of public authority to carry out their inspection activities, or even from entrusting to them other activities which, taken in themselves, are directly and specifically connected with the exercise of official authority, it is however clear from the Court’s case-law that the extension of the exception allowed by Articles 45 EC and 55 EC to an entire profession is not possible when the activities connected with the exercise of official authority are separable from the professional activity in question taken as a whole (see, as regards Article 45 EC, Reyners , cited above, paragraph 47).
|
34. However, since a party must be able to challenge all the grounds for a judgment adversely affecting it, where the General Court has joined two cases and given a single judgment which answers all the pleas submitted by the parties to the proceedings before the Court, each of those parties may criticise the reasoning concerning pleas which, before the General Court, were raised only by the applicant in the other joined case, provided that that reasoning adversely affects it (see, to that effect, Case C‑369/09 P ISD Polska and Others v Commission [2011] ECR I‑2011, paragraph 85 and case-law cited).
| 0 |
863,191 |
46. As the Portuguese Government in particular points out, the Court has already held that lotteries constitute an economic activity, within the meaning of the Treaty, inasmuch as they consist in the importation of goods or the provision of services for remuneration (Case C-275/92 Schindler [1994] ECR I-1039, paragraph 19). With particular regard to the activities in issue in the main proceedings, the Court has held that games consisting in the use, in return for a money payment, of slot machines must be regarded as gambling which is comparable to the lotteries forming the subject of the Schindler judgment (Case C-124/97 Läärä and Others [1999] ECR I-6067, paragraph 18).
|
28 As the Council and the Commission were right to point out, the aim of binding tariff information is to enable the trader to proceed with certainty where there are doubts as to the classification of goods in the existing customs nomenclature, thereby protecting him against any subsequent change in the position adopted by the customs authorities with regard to the classification of the goods. However, such information is not aimed at, nor can it have the effect of, guaranteeing that the tariff heading to which the trader refers will not subsequently be amended by a measure adopted by the Community legislature. That interpretation is confirmed clearly and precisely by the wording of the first indent of the first paragraph of Article 13 of Regulation No 1715/90.
| 0 |
863,192 |
27. When the Commission, on conclusion of its investigation, adopts a positive decision as referred to in Article 7(3) of Regulation No 659/1999, it is then apparent that the objective referred to in paragraph 25 of this judgment has been safeguarded and that the aid concerned may be put into effect (see, to that effect, judgment in CELF and Ministre de la Culture et de la Communication , C‑199/06, EU:C:2008:79, paragraph 49).
|
22. In view of the nature of the analysis to be carried out, it is for the national court to classify the activity at issue in the main proceedings in the light of the criterion adopted above ( Comune di Carpaneto Piacentino and Others , cited above, paragraph 16; Case C-4/89 Comune di Carpaneto Piacentino and Others [1990] ECR I‑1869, paragraph 11; and Fazenda Pública , paragraph 23).
| 0 |
863,193 |
45. Moreover, it is not disputed that the execution of the works connected with the exclusive management of the integrated water service at issue in the main proceedings is incidental to the main object of the concession in question, which is to provide that service, so that the latter cannot be characterised as a ‘public works concession’ (see to that effect, inter alia, Case C‑331/92 Gestión Hotelera Internacional [1994] ECR I‑1329, paragraphs 26 to 28, and Article 9(1) of Directive 2004/17).
|
76. However, the exercise of that discretion is not excluded from review by the Court. The Court has consistently held that in the context of such a review the Community judicature must verify whether the relevant procedural rules have been complied with, whether the facts admitted by the Commission have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers (Case 98/78 Racke [1979] ECR 69, paragraph 5, and Case C‑16/90 Nölle [1991] ECR I‑5163, paragraph 12).
| 0 |
863,194 |
31. Basing its reasoning in that respect, inter alia, on the essential role played by the judiciary in the protection of the rights derived by individuals from Community rules and on the fact that a court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by Community law, the Court infers that the protection of those rights would be weakened – and the full effectiveness of the Community rules conferring such rights would be brought into question – if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by an infringement of Community law attributable to a decision of a court of a Member State adjudicating at last instance (see Köbler , paragraphs 33 to 36).
|
34. As the Commission observed, Investrand’s position in this case is no different from that of a private shareholder who, having sold his shares, has sought legal advice and incurred expenditure relating to that advice in the course of a dispute with the purchaser concerning the claim corresponding to the price of that sale. Those circumstances do not fall within the scope of the Sixth Directive (see, to that effect, EDM , paragraphs 60 and 61).
| 0 |
863,195 |
14. Such a provision also has a restrictive effect in relation to companies established in other Member States; it constitutes an obstacle to the raising of capital in Luxembourg since the acquisition of shares in those companies is less attractive than the acquisition of shares in companies which have their seats in that Member State (see, by way of analogy, Verkooijen , paragraph 35, and Commission v France , paragraph 24).
|
43 IN ANY CASE, THE FACT THAT MARKET CONDITIONS MAY DURING A GIVEN PERIOD HAVE RENDERED LESS NECESSARY THE USE OF THE SUPPLY MECHANISMS PRESCRIBED BY THE TREATY DOES NOT SUFFICE TO DEPRIVE THE PROVISIONS RELATING TO THESE MECHANISMS OF THEIR MANDATORY CHARACTER .
| 0 |
863,196 |
65 In preliminary ruling proceedings, although it is ultimately for the national court, which alone is competent to assess the facts, to establish whether, in the particular case before it, there are objective grounds unrelated to any discrimination based on sex to justify such inequality, the Court of Justice, which is called on to provide answers of use to the national court, may nevertheless provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see Seymour-Smith and Perez, cited above, paragraphs 67 and 68).
|
18 Moreover, it is apparent from Rule 2(a) of the General Rules for the interpretation of the CN that, for the purposes of customs classification, an incomplete or unfinished article is to be treated in the same way as a complete or finished article, provided that it has the essential character of the complete or finished article. That rule of interpretation is itself clarified by the Customs Cooperation Council's explanatory notes, according to which the heading relating to the finished product covers blanks, that is to say, articles which, although not ready for direct use, have the approximate shape or outline of the finished article and can only be used for completion into the finished article.
| 0 |
863,197 |
19. Thus, an interpretation, by the Court, of provisions of EU law in purely internal situations is warranted on the ground that they have been made applicable by national law directly and unconditionally (see, to that effect, Case C‑346/93 Kleinwort Benson [1995] ECR I‑615, paragraph 16, and Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 25), in order to ensure that internal situations and situations governed by EU law are treated in the same way (see, to that effect, Poseidon Chartering , paragraph 17, and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 22).
|
55. In fact, the situation of the heirs of the deceased concerned in the main proceedings is comparable to that of any heir whose inheritance includes an immovable property situated in the Netherlands and left by a person who was residing in that State at the time of death.
| 0 |
863,198 |
30 According to well-established case-law, the right to obtain a refund of charges levied in a Member State in breach of rules of Community law is the consequence and the complement of the rights conferred on individuals by Community provisions as interpreted by the Court (see, inter alia, Case 309/85 Barra [1988] ECR 355, paragraph 17; BP Supergas, paragraph 40; Case C-343/96 Dilexport [1999] ECR I-579, paragraph 23; and Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 84).
|
25. Number portability is intended to remove the obstacles to consumers’ freedom of choice particularly between mobile telephone operators and thus to ensure development of effective competition on the telephone services market.
| 0 |
863,199 |
78. 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).
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71 It cannot be disputed that the encouragement of recruitment constitutes a legitimate aim of social policy.
| 0 |
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