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863,800 | 45. On that point it is sufficient to recall that the Court has consistently held that the rules regarding equal treatment forbid 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, inter alia, Case 152/73 Sotgiu [1974] ECR 153, paragraph 11; Commerzbank , paragraph 14, and Case C‑103/08 Gottwald [2009] ECR I‑9117, paragraph 27). | 43. In addition, as the Advocate General noted at point 49 of his Opinion, the CDR is a value judgment by an official’s immediate superiors on the manner in which the official being appraised has performed the duties conferred on him and on his conduct in the service during the relevant period. | 0 |
863,801 | 52. Far from excluding the application of the Treaty to sea transport, Article 80(2) EC provides only that the specific provisions of the Treaty relating to the common transport policy, which are set out in Title V of Part Three of the Treaty, will not automatically apply to that sphere of activity. Whilst under that provision, therefore, sea transport is excluded from the rules of Title V so long as the Council has not decided otherwise, it remains, like other modes of transport, subject to the general rules of the Treaty. It follows that the application of Directive 69/335 to the sphere of sea transport is not optional but obligatory for Member States (see Case 167/73 Commission v France [1974] ECR 359, paragraphs 30 to 33). Contrary to the Hellenic Republic’s submissions, Directive 69/335 therefore also applies to capital companies in the maritime sector. | 32 WHILST UNDER ARTICLE 84 ( 2 ), THEREFORE, SEA AND AIR TRANSPORT, SO LONG AS THE COUNCIL HAS NOT DECIDED OTHERWISE, IS EXCLUDED FROM THE RULES OF TITLE IV OF PART TWO OF THE TREATY RELATING TO THE COMMON TRANSPORT POLICY, IT REMAINS, ON THE SAME BASIS AS THE OTHER MODES OF TRANSPORT, SUBJECT TO THE GENERAL RULES OF THE TREATY . | 1 |
863,802 | 16. However, that requirement cannot be carried so far as to mean that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject‑matter of the proceedings has not been extended or altered but simply limited (see, inter alia, Commission v Germany EU:C:1998:441, paragraph 56, and Commission v Spain EU:C:2014:5, paragraph 53). | 35. Article 234 EC provides that the Court has jurisdiction to give preliminary rulings concerning the validity and interpretation of acts of the Community institutions and the European Central Bank. | 0 |
863,803 | 39. As European Union law now stands, service concession contracts are not governed by any of the directives by which the Union legislature has regulated the field of public procurement. However, the public authorities concluding them are bound to comply with the fundamental rules of the EC Treaty in general, including Article 49 EC and, in particular, the principles of equal treatment and of non-discrimination on the ground of nationality and with the consequent obligation of transparency (see, to that effect, Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraphs 60 to 62; Case C‑206/08 Eurawasser [2009] ECR I‑0000, paragraph 44; and Case C‑91/08 Wall [2010] ECR I‑0000, paragraph 33). | 36. If, at the time when such an instrument is executed, the actual contribution of assets has not yet been effected and it remains uncertain whether it will be effected, the Member State concerned cannot demand payment of capital duty until the contribution has become definite (see, to that effect, ESTAG , paragraphs 50 and 51). | 0 |
863,804 | 29. Also, it is indeed settled case-law that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C-345/06 Heinrich [2009] ECR I-0000, paragraph 30 and the case-law cited). | 24. Article 7 of Directive 2003/88 is not, furthermore, one of the provisions from which the directive expressly allows derogation. | 0 |
863,805 | 13 It should be recalled that whilst part-time work is not excluded from the field of application of the rules on freedom of movement for workers, those cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary (judgment in Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraph 17). It is up to the national courts to make the necessary findings of fact in order to establish whether the person concerned can be considered to be a worker within the meaning of that case-law. | 39. It is clear from that case-law that, if it sufficed, in order to qualify for payment of the refund, for the goods exported in the unaltered state simply to be unloaded in the non-member country, the raison d'être of the differentiated system would be disregarded (see, to that effect, Boterlux , paragraph 19). | 0 |
863,806 | 8 In deciding on this action it should be recalled that according to the case-law of the Court (see Case 247/84 Motte [1985] ECR 3887, at paragraph 25; Case 304/84 Muller [1986] ECR 1511, at paragraph 26; and Case C-42/90 Bellon [1990] ECR I-4863, at paragraphs 16 and 17), rules making the use of an additive subject to authorization are in compliance with Community law if two conditions are satisfied. | 35. That objective of the Unfair Commercial Practices Directive, which is to fully protect consumers against practices of that kind, relies on the assumption that, in relation to a trader, the consumer is in a weaker position, in that the consumer must be considered to be economically weaker and less experienced in legal matters than the other party to the contract (see, by analogy, Shearson Lehman Hutton , paragraph 18). | 0 |
863,807 | 53. It is, admittedly, not apparent from the documents submitted to the Court that the Italian Government communicated those measures to the Commission in accordance with Article 193 TFEU. Nevertheless, it should be noted that, while that provision requires Member States to communicate to the Commission the more stringent protective measures which they intend to maintain or introduce in environmental matters, it does not make implementation of the planned measures conditional upon agreement by the Commission or its failure to object. In that context, as the Advocate General noted at point 38 of his Opinion, neither the wording nor the purpose of the provision under examination therefore provides any support for the view that failure by the Member States to comply with their notification obligation under Article 193 TFEU in itself renders unlawful the more stringent protective measures thus adopted (see, by analogy, Case 380/87 Enichem Base and Others [1989] ECR 2491, paragraphs 20 to 23; Case C‑209/98 Sydhavnens Sten & Grus [2000] ECR I‑3743, paragraph 100; and Case C‑159/00 Sapod Audic [2002] ECR I‑5031, paragraphs 60 to 63). | Au nombre de ces indices, figure le fait que l’entreprise publique en question ne pouvait pas prendre la décision contestée sans tenir compte des exigences des pouvoirs publics ou des directives émanant du CIPE. D’autres indices permettant de conclure à une telle imputabilité sont également pertinents, tels que l’intégration de ladite entreprise publique dans les structures de l’administration publique, la nature de ses activités et l’exercice de celles-ci sur le marché dans des conditions normales de concurrence avec des opérateurs privés, le statut juridique de l’entreprise, l’intensité de la tutelle exercée par les autorités publiques sur la gestion de l’entreprise, ou tout autre indice traduisant, dans le cas concret, une implication des autorités publiques ou l’improbabilité d’une absence d’implication dans l’adoption d’une mesure, eu égard également à l’ampleur de celle-ci, à son contenu ou aux conditions qu’elle comporte (arrêt du 16 mai 2002, France/Commission, C‑482/99, EU:C:2002:294, points 55 et 56). | 0 |
863,808 | 71. It is established case‑law that the principle of legal certainty requires that European Union legislation must be certain and its application foreseeable by those subject to it (see, in particular, Belgium and Forum 187 v Commission , paragraph 69, and Case C‑67/09 P Nuova Agricast and Cofra v Commission [2010] ECR I‑0000, paragraph 77). The right to rely on the principle of the protection of legitimate expectations extends to any person in a situation in which a European Union institution has caused him to entertain expectations which are justified by precise assurances provided to him. However, if a prudent and alert economic operator could have foreseen the adoption of a European Union measure likely to affect his interests, he cannot plead that principle if the measure is adopted (see Belgium and Forum 187 v Commission, paragraph 147; Case C‑519/07 P Commission v Koninklijke FrieslandCampina [2009] ECR I‑8495, paragraph 84; and Case C‑537/08 P Kahla Thüringen Porzellan v Commission [2010] ECR I‑0000, paragraph 63). | 57 In view of the foregoing, the answer to the second part of the second question must be that, in order to determine whether a right of action available under domestic law is a domestic action similar to proceedings to give effect to rights conferred by Article 119 of the Treaty, the national court must consider whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics. | 0 |
863,809 | 31. Article 32(1) of the Protocol provides that the subsequent verification may be carried out by the competent authorities of the State of export on their own initiative or at the request of the authorities of the State of import. Or, as was the case in the main proceedings here, that verification may also be carried out at the request of the services of the Commission which, pursuant to Article 211 EC, is charged with ensuring the proper application of the Association Agreement and its protocols (see, to that effect, Case C‑251/00 Ilumitrónica [2002] ECR I‑10433, paragraph 60). | 21. Lors de l’examen desdites conditions, il convient de vérifier, en premier lieu, si la modification litigieuse satisfait à la condition mentionnée à l’article 30, paragraphe 4, premier alinéa, sous b), du règlement n o 1260/1999, qui exige que celle-ci résulte soit d’un changement dans la nature de la propriété d’une infrastructure, soit de l’arrêt ou du changement de localisation d’une activité productive. En effet, lors de la vérification de cette condition, il convient d’apprécier les éléments qui sont à l’origine de la modification litigieuse et constituent ainsi les causes de cette modification. | 0 |
863,810 | 27. In this connection, it is apparent from the Court’s case-law that, in the absence of any specific provision in the VAT Directive as to the evidence that taxable persons are required to provide in order to be granted the exemption from VAT, it is for the Member States to lay down, in accordance with Article 131 of that directive, the conditions in which intra-Community supplies of goods will be exempt, with a view to ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse. However, when they exercise their powers, Member States must observe the general principles of law which form part of the European Union legal order, which include, in particular, the principles of legal certainty and proportionality (judgment in Mecsek-Gabona , EU:C:2012:547, paragraph 36 and the case-law cited). | 98 At the time when the contested decision was adopted, there was great uncertainty as to the risks posed by live animals, bovine meat and derived products. | 0 |
863,811 | 35. So far as concerns a reply to the referring court, it must be recalled that, as a general rule, it is not for the Court of Justice, pursuant to the division of jurisdiction between the EU Courts and national courts, to rule on the question whether the labelling of certain products is likely to mislead the purchaser or consumer or to determine whether a sales description is potentially misleading. That task is for the national court. When giving a preliminary ruling on a reference, however, the Court of Justice may, in appropriate cases, give further clarification as guidance to the national court in its decision (see, in particular, judgments in Geffroy , C‑366/98, EU:C:2000:430, paragraphs 18 to 20, and Severi , C‑446/07, EU:C:2009:530, paragraph 60). | 20 When giving a preliminary ruling on a reference, however, the Court may, in appropriate cases, give clarifications to guide the national court in its decision (see Case C-424/97 Haim v Kassenzahnärztliche Vereinigung Nordrhein [2000] ECR I-5123, paragraph 58). | 1 |
863,812 | 58. That line of argument cannot be accepted. As the Advocate General, in paragraphs 101 to 103 of her Opinion, and the Commission have noted, the Court has consistently held that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order, including those resulting from the constitutional organisation of that State, to justify the failure to observe obligations arising under Community law (see, inter alia, Case C‑87/02 Commission v Italy [2004] ECR I‑5975, paragraph 38, Case C‑102/06 Commission v Austria [2006], not published in the European Court Reports, paragraph 9). | 23. For the same reasons, when the refund to the taxable person of the excess VAT is not made within a reasonable period, the principle of fiscal neutrality of the VAT system requires that the financial losses incurred by the taxable person owing to the unavailability of the sums of money at issue are compensated through the payment of default interest. | 0 |
863,813 | 25. The Court observes in that regard that, for Article 101 TFEU to apply, it is not necessary for there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned; action by a person who is authorised to act on behalf of the undertaking suffices (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 97). | 31. It must also be noted that the intended use of a product may also 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 RUMA , C‑183/06, EU:C:2007:110, paragraph 36, and Roeckl Sporthandschuhe , EU:C:2010:237, paragraph 28). | 0 |
863,814 | 46. In those circumstances, the appellant’s argument that the Court of First Instance misapplied the case‑law relating to the interpretation of Article 110 of the Staff Regulations cannot be accepted. As is clear from paragraph 37 of the judgment in Pflugradt v ECB , cited above, in exercising their power to apply general implementing measures concerning staff, the position of the management bodies of the ECB is no different to that of the management bodies of other Community institutions and bodies in their relations with their staff. In that context and as regards the ‘principle of institutional balance’, it is sufficient to recall that that principle is intended to apply only to relations between Community institutions and bodies (see, inter alia, Case C-70/88 Parliament v Council [1990] ECR I‑2041, paragraphs 21 to 23). | 55
In such a situation, the tenderer who has brought the action must be regarded as having a legitimate interest in the exclusion of the bid submitted by the successful tenderer, which may lead, where appropriate, to a finding that the contracting authority is unable to select a lawful bid (see, to that effect, judgments of 4 July 2013, Fastweb, C‑100/12, EU:C:2013:448, paragraph 33, and of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 24). | 0 |
863,815 | 26. Second, it should be noted that an appeal is inadmissible in so far as it merely repeats the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by it. Such an appeal amounts in reality to no more than a request for re‑examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 51 and the case-law cited). | 26 In the Netherlands, Mr Asscher is the director of a company of which he is the sole shareholder; his activity is thus not carried out in the context of a relationship of subordination, and so he is to be treated not as a "worker" within the meaning of Article 48 of the Treaty but as pursuing an activity as a self-employed person within the meaning of Article 52. | 0 |
863,816 | 23. According to the Court’s case-law, the concept of ‘establishment’, which is not defined in that directive, is a term of Community law and cannot be defined by reference to the laws of the Member States (Case C‑449/93 Rockfon [1995] ECR I‑4291, paragraphs 23 and 25). It must, a ccordingly, be interpreted in an autonomous and uniform manner in the Community legal order. | 25 The Court observes in this regard that the term "establishment", as used in the Directive, is a term of Community law and cannot be defined by reference to the laws of the Member States. | 1 |
863,817 | 93. According to the Court’s settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed by such a decision (see, inter alia, judgments in Plaumann v Commission , 25/62, EU:C:1963:17, p. 107; Sniace v Commission , C‑260/05 P, EU:C:2007:700, paragraph 53; 3F v Commission , C‑319/07 P, EU:C:2009:435, paragraph 29; and T & L Sugars and Sidul Açúcares v Commission , C‑456/13 P, EU:C:2015:284, paragraph 63). | 18 The Directive provides for the compulsory participation by all credit institutions in guarantee schemes providing cover up to ECU 20 000 for the aggregate deposits of each depositor with a credit institution in the event of deposits' being unavailable. Moreover the deposit-guarantee systems introduced by a Member State in accordance with Article 3(1) of the Directive are to cover depositors in branches set up by credit institutions in other Member States. | 0 |
863,818 | 71. It follows from the case‑law (see, in particular, Dansk Rørindustri and Others v Commission , paragraphs 240 to 242) that, whereas the basic amount of the fine is set according to the infringement, its gravity is determined by reference to numerous other factors, in respect of which the Commission has a wide discretion. To take into account aggravating circumstances when setting the fine is consistent with the Commission’s task of ensuring compliance with the competition rules. | 302. It is true also that Article 297 EC implicitly permits obstacles to the operation of the common market when they are caused by measures taken by a Member State to carry out the international obligations it has accepted for the purpose of maintaining international peace and security. | 0 |
863,819 | 24 In that regard, it must be borne in mind that in order for the Court, where it has been asked for a preliminary ruling, to provide an interpretation of Community law which will be of use to the national court, the order for reference must contain information on the factual context in which the disputed national rule has been or is to be applied (see, to that effect, Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo [1993] ECR I-393, paragraph 6). | 39. With regard, in third place, to the extent to which it is possible for a set of rules, such as those laid down in the legislation at issue in the main proceedings, to guarantee that the objective of protection of public health is attained, by introducing a measure resulting in a prohibition on advertising medical and surgical treatments on national television networks while at the same time making it possible to broadcast such advertisements on local television networks, such rules exhibit an inconsistency which the Italian Government has not attempted to justify and cannot therefore properly attain the public health objective which they seek to pursue. | 0 |
863,820 | 27 Furthermore, as the Court has recently held, Community law does not in principle preclude the legislation of a Member State from laying down, alongside a limitation period applicable under the ordinary law to actions between private individuals for the recovery of sums paid but not due, special detailed rules governing claims and legal proceedings to challenge the imposition of charges and other levies (Case C-231/96 Edis v Ministero delle Finanze [1998] ECR I-4951, paragraph 37, and Case C-260/96 Ministero delle Finanze v Spac [1998] ECR I-4997, paragraph 21). | 92. In order to determine whether or not Cargill has demonstrated "obvious negligence" within the meaning of the second indent of Article 239(1) of the Customs Code, as the Court has previously held, it is appropriate to apply by analogy the criteria used in the context of Article 220 of the Customs Code to ascertain whether or not an error committed by the customs authorities was detectable by a trader (see Söhl & Söhlke , paragraphs 55 and 56). The Commission was therefore correct in applying those criteria to the present case. | 0 |
863,821 | 37. Such an interpretation is not contrary to the principle of fiscal neutrality, which precludes economic operators carrying out the same transactions from being treated differently in relation to the levying of VAT (see Case C‑363/05 JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies [2007] ECR I‑5517, paragraph 46 and the case-law cited). | 38. In those circumstances, it is clear that the request for a preliminary ruling must be declared admissible.
Consideration of the questions referred | 0 |
863,822 | 32. It is also necessary, finally, to point out that where the principle of legal certainly precludes the beneficiary of a Community financial assistance from being required to repay it, the Community's interest in recovering that assistance must nevertheless be taken into consideration ( Huber , paragraph 57). | 40 However, registration of a trade mark which consists of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by that mark is not excluded as such by virtue of such use. It is for the national court to determine in each case whether the signs or indications have become customary in the current language or in the bona fide and established practices of the trade to designate the goods or services covered by that mark. | 0 |
863,823 | 21. So far as concerns the second of the abovementioned criteria, that is, that the protected work must in fact be communicated to a ‘public’, it follows from Article 3(1) of Directive 2001/29 that, by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons ( SGAE , paragraphs 37 and 38, and ITV Broadcasting and Others , paragraph 32). | 32. In that connection, it follows from the case-law of the Court that the term ‘public’ in Article 3(1) of Directive 2001/29 refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (see, to that effect, SGAE , paragraphs 37 and 38 and the case‑law cited). | 1 |
863,824 | 31. As regards the condition referred to in Article 1(a), third indent, of Directive 89/48 as amended, it is clear from the recognition decision by the Spanish Ministry of Education and Science, and in any event from Mr Koller’s enrolment with the Madrid Chamber of Lawyers, that Mr Koller has the professional qualifications required for access to a regulated profession in Spain (see, to that effect, Consiglio Nazionale degli Ingegneri , paragraph 50). | 18 That method applies only in the absence of other factors or if the customs authorities are doubtful as to the price shown on the invoice. If it is certain that the price paid to the intermediary by the importer and the importer' s subsequent resale price exceed the minimum import price, the purpose of Regulation No 1626/85 has been achieved. It is therefore on the basis of those prices that the comparison must be made. | 0 |
863,825 | 37. Likewise, the explanatory notes to the CN and those to the HS are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see, in particular, Case C-396/02 DFDS [2004] ECR I-8439, paragraph 28). The content of those notes must therefore be compatible with the provisions of the CN and may not alter the meaning of those provisions (see, in particular, Case C-280/97 ROSE Elektrotechnik [1999] ECR I-689, paragraph 23; Case C-42/99 Eru Portuguesa [2000] ECR I-7691, paragraph 20; and Case C‑495/03 Intermodal Transports [2005] ECR I-8151, paragraph 48). | 28. The explanatory notes drawn up, as regards the CN, by the Commission and, as regards the HS, by the Customs Cooperation Council may be an important aid to the interpretation of the scope of the various headings but do not have legally binding force (see Case C-405/97 Mövenpick Deutschland [1999] ECR I-2397, paragraph 18). | 1 |
863,826 | 32. Concerning the second complaint in the case which gave rise to the judgment in Commission v Luxembourg , it follows from the operative part and paragraphs 23 and 33 of that judgment that the Commission alleged, in that complaint, that the Grand Duchy of Luxembourg had laid down rules relating to the conditions for land application of fertiliser to steeply sloping ground only where the ground was water-saturated, flooded, snow-covered for more than 24 hours or frozen, although it was necessary to adopt rules applicable irrespective of climatic conditions. | 49 Since the reference values chosen will have an impact on the amount of any contribution demanded of new market entrants, it is important that those values are set in accordance with objective criteria and that like is compared with like so as to ensure transparency; this will enable new entrants to calculate their probable costs and income. Any factor that makes that calculation more difficult is likely to discourage them from entering the market. | 0 |
863,827 | 24. It must be borne in mind that measures taken by a Member State, the aim or effect of which is to treat goods coming from other Member States less favourably and, in the absence of harmonisation of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods, even if those rules apply to all products alike, must be regarded as ‘measures having equivalent effect to quantitative restrictions on imports’ for the purposes of Article 28 EC (see to that effect, Case 120/78 Rewe-Zentral (Cassis de Dijon) [1979] ECR 649, paragraphs 6, 14 and 15; Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 8; and Case C-322/01 Deutscher Apothekerverband [2003] ECR I-14887, paragraph 67). Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept (see Case C-110/05 Commission v Italy [2009] ECR I-0000, paragraph 37). | Il ressort d’une jurisprudence constante que la lettre de mise en demeure adressée à l’État membre concerné par la Commission
puis l’avis motivé émis par cette dernière délimitent l’objet du litige, lequel ne peut plus, dès lors, être étendu. En effet,
la possibilité pour l’État membre concerné de présenter ses observations constitue une garantie essentielle voulue par le
traité FUE et une condition de forme substantielle dont le non-respect porte atteinte à la régularité de la procédure en manquement
contre un État membre. Par conséquent, l’avis motivé et le recours de la Commission doivent reposer sur les mêmes griefs que
ceux de la lettre de mise en demeure qui engage la procédure précontentieuse (voir, en ce sens, arrêt Commission/Espagne,
C‑127/12, EU:C:2014:2130, point 23 et jurisprudence citée). | 0 |
863,828 | 16 It is settled case-law that the members of a worker's family within the meaning of Article 10 of Regulation No 1612/68 qualify only indirectly for the equal treatment accorded to the worker himself by Article 7 of that regulation (Case 316/85 Centre Public d'Aide Sociale de Courcelles v Lebon [1987] ECR 2836, paragraph 12). | 90. Given the particular nature of medicinal products and of the medicinal-product market, and as Community law currently stands, the Court’s findings in Commission v Greece cannot be transposed to the field of the retail supply of medicinal products. Unlike optical products, medicinal products prescribed or used for therapeutic reasons may none the less prove seriously harmful to health if they are consumed unnecessarily or incorrectly, without the consumer being in a position to realise that when they are administered. Furthermore, a medically unjustified sale of medicinal products leads to a waste of public financial resources which is not comparable to that resulting from unjustified sales of optical products. | 0 |
863,829 | 28. Consequently, the fact that a ‘database’ within the meaning of Article 1(2) of Directive 96/9 does not satisfy the conditions of eligibility for protection by the ‘sui generis’ right under Article 7 of Directive 96/9, as the Court held in relation to football fixture lists (Case C‑46/02 Fixtures Marketing [2004] ECR I‑10365, paragraphs 43 to 47; Case C‑338/02 Fixtures Marketing [2004] ECR I‑10497, paragraphs 32 to 36; and Case C‑444/02 Fixtures Marketing , cited above, paragraphs 48 to 52), does not automatically mean that that same database is also not eligible for copyright protection under Article 3 of that directive. | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
863,830 | 69 As regards the right of individuals to rely on a directive and of the national court to take it into consideration, the Court has already held that it would be incompatible with the binding effect conferred on directives by Article 189 of the EC Treaty (now Article 249 EC) for the possibility for those concerned to rely on the obligation which directives impose to be excluded in principle. Particularly where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the effectiveness of such an act would be diminished if individuals were prevented from relying on it in legal proceedings and if national courts were prevented from taking it into consideration as a matter of Community law in determining whether the national legislature, in exercising its choice as to the form and methods for implementing the directive, had kept within the limits of its discretion set out in the directive (Case 51/76 Verbond van Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 113, paragraphs 22, 23 and 24, and Kraaijeveld, cited above, paragraph 56). | 79. Since Mobilkom's dominant position extends over the territory of a Member State, it is capable of constituting a dominant position in a substantial part of the common market, in breach of Article 82 EC (see, to that effect, Case C-340/99 TNT Traco [2001] ECR I-4109, paragraph 43). | 0 |
863,831 | 45. However, the Court has consistently held t hat a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (see, inter alia, Case 152/84 Marshall [1986] ECR 723, paragraph 48; Case C-91/92 Faccini Dori [1994] ECR I‑3325, paragraph 20; Case C‑201/02 Wells [2004] ECR I‑723, paragraph 56; Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 108; and Case C‑555/07 Kücükdeveci [2010] ECR I‑0000, paragraph 46). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
863,832 | 33. Before Directive 92/85 came into force, the Court had already held that, under the principle of non-discrimination and, in particular, Articles 2(1) and 5(1) of Directive 76/207, protection against dismissal must be granted to women not only during maternity leave, but also throughout the period of the pregnancy. According to the Court, a dismissal occurring during those periods affects only women and therefore constitutes direct discrimination on the grounds of sex (see, to that effect, Case C-179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I-3979, paragraph 13; Case C-394/96 Brown [1998] ECR I-4185, paragraphs 16, 24 and 25; McKenna , paragraph 47; and Paquay , paragraph 29). | 39 As regards Article 29(1) of the directive, it must be stated that that provision is framed in clear and precise terms and establishes unconditionally that, upon any increase of subscribed capital by consideration in cash, the shares must be offered on a pre-emptive basis to the shareholders in proportion to the capital represented by their shares. | 0 |
863,833 | 41. Accordingly, medical services effected for the purpose of protecting, including maintaining or restoring, human health could benefit from the exemption under Article 13A(1)(b) and (c) of the Sixth Directive (see, to that effect, Unterpertinger , paragraphs 40 and 41; D’Ambrumenil and Dispute Resolution Services , paragraphs 58 and 59; and L.u.P ., paragraph 29). | 62. As the appellants in the main proceedings have stated, the Belgian legislation deems, in principle, both the heirs of resident persons and the heirs of persons who were non-resident at the time of death to be taxable persons for the purposes of collecting inheritance and/or transfer duties on immovable properties situated in Belgium. It is only in respect of the deduction of debts from the inheritance of non-residents that non-residents and residents are treated differently. | 0 |
863,834 | 31. The transfer of the right of ownership in the properties at issue in the main proceedings will entail the taking into account of situations of fact and law relating to the linking factor as laid down in the first paragraph of Article 22(1) of Regulation No 44/2001, namely the place where those properties are situated. The same applies, in particular, to the fact that the rights of ownership in the properties and the rights of use encumbering those rights are the subject of entries in the Spanish Land Register in accordance with Spanish law, the fact that rules governing the sale, by auction where appropriate, of those properties are those of the Member State in which they are situated, and the fact that, in the case of disagreement, the obtaining of evidence will be facilitated by proximity to the locus rei sitae. The Court has already held that disputes concerning rights in rem in immovable property, in particular, must generally be decided by applying the rules of the State in which the property is situated, and the disputes which frequently arise require checks, inquiries and expert assessments which have to be carried out there (judgment in ČEZ , C‑343/04, EU:C:2006:330, paragraph 29 and the case-law cited). | 25. Furthermore, it must be stated that Article 3(3) of the Directive does not refer, for the purposes of establishing the extent of the exception laid down therein, to the signs referred to in Article 3(1)(e). | 0 |
863,835 | 22. It is settled case-law that the wording used in one language version of a provision of European Union law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of European Union law. Where there is a divergence between the various language versions, the provision in question must then be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 16, and Case C‑451/08 Helmut Müller [2010] ECR I‑2673, paragraph 38). | 47 In consequence, the authorisation procedure instituted by the host Member State should neither delay nor complicate exercise of the right of persons established in another Member State to provide their services on the territory of the first State where examination of the conditions governing access to the activities concerned has been carried out and it has been established that those conditions are satisfied. | 0 |
863,836 | 57. Admittedly, the Court has accepted that an action for annulment of a contract of sale could constitute a proportionate penalty in the context of a prior declaration system ( Salzmann , cited above, paragraph 51). Likewise, the Court has already held that certain town and country planning objectives, such as that of sustaining and developing stable agriculture through control of the development of agricultural land ownership, might not be attainable through a simple system of prior declaration and that therefore even a prior authorisation procedure could, under certain circumstances, be compatible with the free movement of capital (see, to that effect, in particular Case C-452/01 Ospelt and Schlössle Weissenberg [2003] ECR I-9743, paragraphs 41 to 45). | 22 Furthermore, Article 10 of Directive 92/85 provides that there is to be no exception to, or derogation from, the prohibition on the dismissal of pregnant women during that period, save in exceptional cases not connected with their condition. | 0 |
863,837 | 121
ATT was a tax of general application and, in the decision at issue, the Commission reached the conclusion that the lower rate of ATT was equivalent to a partial exemption which, in itself, constituted an aid measure. In those circumstances, those liable to pay the tax in question cannot claim that the exemption enjoyed by other businesses constitutes State aid in order to avoid payment of that tax or to obtain reimbursement (judgment of 7 September 2006, Laboratoires Boiron, C‑526/04, EU:C:2006:528, paragraphs 30 and 32 and the case-law cited). | 19 It should be noted that the first subparagraph of Article 3(1) of the Habitats Directive provides for the setting up of a coherent European ecological network of SACs to be known as Natura 2000, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, to enable them to be maintained or, where appropriate, restored at a favourable conservation status in their natural range. | 0 |
863,838 | 100
It is for those courts to draw all the necessary inferences from the infringement of Article 108(3) TFEU, in accordance with domestic law, with regard both to the validity of the acts giving effect to the aid and the recovery of financial support granted in disregard of that provision (judgment of 8 December 2011, Residex Capital IV, C‑275/10, EU:C:2011:814, paragraph 29 and case-law cited). | 7 However, it should be noted that workers who have carried on an occupation in one Member State and who are subsequently employed, or seek employment, in another Member State will normally have concluded their life assurance contracts with insurers established in the first State. It follows that there is a risk that the provisions in question may operate to the particular detriment of those workers who are, as a general rule, nationals of other Member States. | 0 |
863,839 | 35. First, it must be noted that the Court has held that Directive 76/207 applies to employment in the public service. That directive is of general application, a factor inherent in the very nature of the principle which it lays down (see Case 248/83 Commission v Germany [1985] ECR 1459, paragraph 16). | 35. The Court notes, as a preliminary point, that some of the facts of the case relating to the customs debt occurred prior to 1 January 1994, that is, prior to the entry into force of the Customs Code and the implementing regulation, whereas some occurred after that date. | 0 |
863,840 | 19 This exclusion of recourse to Article 36 cannot be affected by the fact that, in the present case, the Directive does not lay down any Community procedure for monitoring compliance nor any penalties in the event of breach of its provisions. The fact that the Directive lays down no monitoring procedure or penalties simply means that the Member States are obliged, in accordance with the first paragraph of Article 5 and the third paragraph of Article 189 of the Treaty, to take all measures necessary to guarantee the application and effectiveness of Community law (see, in particular, the judgment in Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 23). In this regard, the Member States must rely on trust in each other to carry out inspections on their respective territories (see also the judgment in Case 46/76 Bauhuis v Netherlands [1977] ECR 5, paragraph 22). | 34. On the other hand, if, at the time of that removal, the goods have not yet been placed under the external Community transit procedure, but are still in temporary storage, the person liable for payment of the customs debt – if the first three indents of Article 203(3) of the Customs Code do not apply – is the person who, being responsible for fulfilling the obligations arising from temporary storage, holds the goods, after they have been unloaded, in order to move or store them (see, to that effect, United Antwerp Maritime Agencies and Seaport Terminals , paragraph 39 and the operative part). On the basis of the information in the documents before the Court, that person is not Codirex. | 0 |
863,841 | 19 In view of the wording of the preliminary questions, it should be remembered that the Court has consistently held that it does not have jurisdiction to rule on the compatibility of a national measure with Community law. However, the Court is competent to provide the national court with all criteria for the interpretation of Community law which may enable it to determine the issue of compatibility for the purposes of the decision in the case before it (see in particular Case C-63/94 Groupement National des Négociants en Pommes de Terre de Belgique (Belgapom) [1995] ECR I-0000, paragraph 7). | 33 Second, it should be noted that under Article 8(1) of Regulation No 338/97 all commercial use of specimens of the species listed in Annex A to that regulation is prohibited. | 0 |
863,842 | 43 The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 25 and 26, Case 113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke and Benteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council [1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 9). | 38 Community law does not prevent the national court from taking account, in accordance with a principle of its criminal law, of the more favourable provisions of Directive 91/439 for the purposes of the application of national law, even though, as the Commission has pointed out in its written observations, Community law imposes no obligation to that effect. | 0 |
863,843 | 39. That plea, which concerns the Parliament's obligation to state reasons, was not raised before the Court of First Instance. It was, it is true, raised by Mr O'Hannrachain in his complaint beforehand. However, it was not incorporated as such in the application initiating proceedings before the Court of First Instance. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance (Case C-155/98 P Alexopoulou v Commission [1999] ECR I-4069, paragraph 41). Therefore, that plea must also be rejected as inadmissible. | 53. It should be noted in that regard that the factors capable of affecting the assessment of the gravity of infringements and which may, for that purpose, be taken into account in ensuring that the penalty imposed is appropriate to the economic entity in question, include the conduct of each of the undertakings concerned, the role played by each of them in the establishment of the concerted agreements or practices, the profit which they were able to derive from those agreements or practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 242). | 0 |
863,844 | 44. The question whether a trade mark’s function of indicating origin is adversely affected when internet users are shown, on the basis of a keyword identical with the mark, a third party’s advertisement, such as that of a competitor of the trade mark proprietor, depends in particular on the manner in which that advertisement is presented. That function is adversely affected if the advertisement does not enable reasonably well-informed and reasonably observant internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by the advertisement originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party ( Google France and Google , paragraphs 83 and 84, and Portakabin , paragraph 34). In such a situation, which is, moreover, characterised by the fact that the advertisement appears immediately after the trade mark has been entered as a search term and is displayed at a point when the trade mark is, in its capacity as a search term, also displayed on the screen, the internet user may be mistaken as to the origin of the goods or services in question ( Google France and Google , paragraph 85). | 40 A system of that kind cannot therefore function properly unless the procedures for administrative cooperation are strictly complied with. However, such cooperation is excluded with the authorities of an entity such as that established in the northern part of Cyprus, which is recognized neither by the Community nor by the Member States; the only Cypriot State they recognize is the Republic of Cyprus. | 0 |
863,845 | 25
In order to determine whether there is a sufficiently serious breach of EU law, it is necessary to take account of all the factors which characterise the situation brought before the national court. Therefore, according to the Court’s case-law, among the factors which can be taken into consideration in that regard are, in particular, the degree of clarity and precision of the rule infringed, the scope of the room for assessment that the infringed rule allows for national authorities, whether the infringement and the damage caused were intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by an EU institution may have contributed to the adoption or maintenance of national measures or practices contrary to EU law, and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 267 TFEU (see, to that effect, judgments of 5 March 1996 in Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 56; of 30 September 2003 in Köbler, C‑224/01, EU:C:2003:513, paragraphs 54 and 55, and of 12 December 2006 in Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 213). | 29. It follows that, in exercising their powers under Article 13B(f) of the Sixth Directive, that is to say, the power to determine the conditions and limitations subject to which the operation of games of chance and gaming machines is to be exempted from the VAT provided for by that provision, the Member States cannot validly make that exemption dependent upon the identity of the operator of such games and machines. | 0 |
863,846 | 114. However, it is also settled case-law that a Member State is entitled to take measures to prevent certain of its nationals, under cover of freedoms created by the Treaty, from wrongfully evading the application of their national legislation (see, inter alia , in relation to the freedom to provide services Van Binsbergen , paragraph 13; Case C-148/91 Veronica Omroep Organisatie [1993] ECR I-487, paragraph 12; Case C-23/93 TV10 [1994] ECR I-4795, paragraph 21; in relation to freedom of establishment, Case 115/78 Knoors [1979] ECR 399, paragraph 25; Case C-61/89 Bouchoucha [1990] ECR I-3551, paragraph 14; and Case C-212/97 Centros [1999] ECR I-1459, paragraph 24; in relation to social security, Case C-206/94 Paletta [1996] ECR I-2357, paragraph 24; in relation to free movement of workers, Case 39/86 Lair [1988] ECR 3161, paragraph 43; in relation to the common agricultural policy, Case C-8/92 General Milk Products [1993] ECR I-779, paragraph 21; in relation to company law, Case C-367/96 Kefalas and Others [1998] ECR I-2843, paragraph 20). | 24 As the Advocate General observed in point 54 of his Opinion, the effect of double-taxation conventions which, like the one referred to above, follow the OECD model is that the State taxes all pensions received by residents in its territory, whatever the State in which the contributions were paid, but, conversely, waives the right to tax pensions received abroad even if they derive from contributions paid in its territory which it treated as deductible. Fiscal cohesion has not therefore been established in relation to one and the same person by a strict correlation between the deductibility of contributions and the taxation of pensions but is shifted to another level, that of the reciprocity of the rules applicable in the Contracting States. | 0 |
863,847 | 22. The uncertainty as to whether the national court – following an answer given by the Court of Justice to a question referred for a preliminary ruling relating to interpretation of a directive – may, in compliance with the principles laid down by the Court (see, to that effect, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraphs 113 to 116, and Case C‑212/04 Adeneler and O thers [2006] ECR I‑6057, paragraphs 110 to 112), interpret national law in the light of that answer cannot affect the Court’s obligation to rule on that question. Any other approach would be incompatible with the very aim of the powers given to the Court by Article 234 EC, which are intended, in essence, to ensure the uniform application of Community law by the national courts (Case C‑461/03 Gaston Schul Douane-expediteur [2005] ECR I‑10513, paragraph 21, and Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 27). | 46. En effet, il découle de la jurisprudence de la Cour que les notions employées dans cette annexe doivent être interprétées conformément au sens habituel des termes en cause. Or, il convient de constater que, au regard du sens habituel dans le langage courant de la notion de «produit pharmaceutique», tout dispositif, équipement, appareil ou matériel à usage médical ou vétérinaire ne peut être regardé comme relevant de cette notion (voir, en ce sens, arrêt Commission/Espagne, C‑360/11, EU:C:2013:17, point 63). D’ailleurs, cette interprétation est conforme à la notion de «produit pharmaceutique», employée au chapitre 30 de la nomenclature combinée figurant à l’annexe I du règlement (CEE) n° 2658/87 du Conseil, du 23 juillet 1987, relatif à la nomenclature tarifaire et statistique et au tarif douanier commun (JO L 256, p. 1), telle que modifiée par le règlement d’exécution (UE) n° 1101/2014 de la Commission, du 16 octobre 2014 (JO L 312, p. 1). | 0 |
863,848 | 49. As regards the ability of an agreement, decision or concerted practice extending over the whole of the territory of a Member State to affect trade between Member States, it is settled case-law that such an agreement, decision or concerted practice has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpenetration which the FEU Treaty is designed to bring about (see judgments in Vereeniging van Cementhandelaren v Commission , 8/72, EU:C:1972:84, paragraph 29; Commission v Italy , C‑35/96, EU:C:1998:303, paragraph 48; and Wouters and Others , C‑309/99, EU:C:2002:98, paragraph 95). | 48 As regards the question whether intra-Community trade is affected, it need merely be pointed out that an agreement extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the compartmentalisation of markets on a national basis, thereby holding up the economic interpenetration which the Treaty is designed to bring about (Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29, and Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 22). | 1 |
863,849 | 16. It is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, Case C‑339/98 Peacock [2000] ECR I‑8947, paragraph 9; Case C‑396/02 DFDS [2004] ECR I‑8439, paragraph 27; Case C‑495/03 Intermodal Transports [2005] ECR I‑8151, paragraph 47; and Case C‑311/04 Algemene Scheeps Agentuur Dordrecht [2006] ECR I‑609, paragraph 26). | 9 As the Court has repeatedly held, the decisive criterion for the customs classification of goods must be sought generally in their objective characteristics and qualities, as defined in the relevant heading of the Common Customs Tariff and in the notes to the sections or chapters (see, in particular, Case C-11/93 Siemens Nixdorf [1994] ECR I-1945, paragraph 11, and Case C-382/95 Techex [1997] ECR I-7363, paragraph 11). | 1 |
863,850 | 42
Thus, it does not appear that the national legislation at issue in the main proceedings establishes a difference of treatment on grounds of disability, in terms of the combined provisions of Article 1 and Article 2(2)(a) of Directive 2000/78, since it uses a criterion that is not inseparably linked to disability (see, by analogy, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraphs 72 to 74). | 69. That argument cannot however be accepted. As the Court has already held, for waters to be regarded as ‘affected by pollution’, within the meaning particularly of Article 3(1) of Directive 91/676, and for their designation as a vulnerable zone to be required, under Article 3(2) of that directive, it is not necessary that nitrogen compounds of agricultural origin be the exclusive cause of the pollution. It is sufficient if they contribute to it significantly (see, to that effect, Case C-293/97 Standley and Others [1999] ECR I‑2603, paragraphs 30 and 35). | 0 |
863,851 | 23. It follows from point (a) of the first paragraph of Article 6(2) and from Article 11A(1)(c) of the Sixth Directive that the use of capital goods for the private use of a taxable person or of his staff or for purposes other than those of his business, where the input VAT paid on such goods is wholly or partly deductible, is treated as a supply of services for consideration and is taxed on the basis of the cost of providing the services (see Lennartz , paragraph 26, and Seeling , paragraph 42). | 42. It follows from Article 6(2)(a) and from Article 11A(1)(c) of the Sixth Directive that the use of capital goods for the private use of a taxable person or of his staff or for purposes other than those of his business, where the input VAT paid on such goods is wholly or partly deductible, is treated as a supply of services for consideration and is taxed on the basis of the cost of providing the services (see Lennartz , paragraph 26, and Bakcsi , paragraph 30). | 1 |
863,852 | 25. As regards, thirdly, the plea in law based on an alleged misuse of powers, suffice it to state that, in accordance with the Court’s settled case-law, the Commission does not have to show an interest to bring proceedings or to state the reasons why it is bringing an action for failure to fulfil obligations (see, inter alia, Case C‑333/99 Commission v France [2001] ECR I‑1025, paragraph 24; Case C‑474/99 Commission v Spain [2002] ECR I‑5293, paragraph 25; and Case C‑33/04 Commission v Luxembourg , paragraphs 65 and 66). Since the subject-matter of the action as it is to be found in the application corresponds to the subject‑matter of the dispute as stated in the letter of formal notice and in the reasoned opinion, it cannot validly be maintained that the Commission has misused its powers. | 91. As regards the alleged existence of a restriction of Article 18 EC, it cannot reasonably be denied that the exclusion of persons wishing to move within the European Union for reasons not connected with the pursuit of an economic activity from entitlement to the cash-flow advantage concerned may, in some cases, be likely to deter those persons from exercising the fundamental freedoms guaranteed by Article 18 EC. | 0 |
863,853 | 48 However, those concerns cannot entitle Member States to plead their own systems of property ownership, referred to in Article 222 of the Treaty, by way of justification for obstacles, resulting from privileges attaching to their position as shareholder in a privatised undertaking, to the exercise of the freedoms provided for by the Treaty. As is apparent from the Court's case-law (Konle, cited above, paragraph 38), that article does not have the effect of exempting the Member States' systems of property ownership from the fundamental rules of the Treaty. | 30. In the light of the information supplied by the national court, it appears that the possibility of obtaining compensation for pecuniary or non-pecuniary damage resulting from breach of the prohibition of discrimination on grounds of race, ethnic origin, religion or belief, disability, age or sexual identity was introduced by the AGG and that, strictly speaking, there were no equivalent procedures before the adoption of that Law. | 0 |
863,854 | 53. Under Article 11 of Regulation No 1150/2000, any delay in making the entry in the account referred to in Article 9(1) of that regulation gives rise to the payment of interest by the Member State concerned at the interest rate applicable to the entire period of delay. That interest is payable in respect of any delay, regardless of the reason for the delay in making the entry in the Commission’s account (see, inter alia, Commission v Netherlands , paragraph 91). | 15 IN VIEW OF THAT DIFFERENCE OF OPINION IT SHOULD BE POINTED OUT FIRST OF ALL THAT, AS THE COURT HELD IN ITS JUDGMENT OF 13 FEBRUARY 1985, ANY FORM OF EDUCATION WHICH PREPARES FOR A QUALIFICATION FOR A PARTICULAR PROFESSION, TRADE OR EMPLOYMENT OR WHICH PROVIDES THE NECESSARY TRAINING AND SKILLS FOR SUCH A PROFESSION, TRADE OR EMPLOYMENT IS VOCATIONAL TRAINING, WHATEVER THE AGE AND LEVEL OF TRAINING OF THE PUPILS OR STUDENTS, AND EVEN IF THE TRAINING PROGRAMME INCLUDES AN ELEMENT OF GENERAL EDUCATION . | 0 |
863,855 | 26. Both the very purpose of the Customs Code, as stated inter alia in recital 5 in the preamble thereto, as being to ensure the correct application of the duties provided for therein (see, to that effect, judgment in Greencarrier Freight Services Latvia , C‑571/12, EU:C:2014:102, paragraph 32), and the specific logic of Article 78 thereof, which is to bring the customs procedure into line with the actual situation by correcting material errors or omissions as well as errors of interpretation of the applicable law (see judgments in Terex Equipment and Others , C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 56, and Südzucker and Others , C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 47), weigh against an interpretation of that article which would preclude generally the customs authorities from amending or conducting other post-clearance examinations of customs declarations in order to regularise the situation. | 330. So far as concerns, second, the presence of toxic algae, while the United Kingdom acknowledged in its report in response to the reasoned opinion of 19 April 2001 that algae of this type can be found in the North East Irish Sea, it is apparent from the 2007 Gowen study, adduced by the United Kingdom, that the toxic species observed in 1992 and 1993 in certain areas of that region were not abundant and the Commission indeed did not contest this in its reply. A limited algae presence of this kind cannot be considered a severe outbreak of harmful phytoplankton capable of constituting undesirable disturbance to the balance of organisms present in the water and to the quality of the water (see Commission v France , paragraph 23). | 0 |
863,856 | 98. According to settled case-law, the prohibition of measures having an effect equivalent to a quantitative restriction, laid down in Article 34 TFEU, applies to all legislation of the Member States that is capable of hindering, directly or indirectly, actually or potentially, trade between Member States (see, inter alia, judgments in Dassonville , 8/74, EU:C:1974:82, paragraph 5, and in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 32). | 26. It is also settled case-law that the Explanatory Notes, drawn up by the Commission as regards the CN and by the WCO as regards the HS, are an important aid for interpreting the scope of the various tariff headings but do not have legally binding force (see, inter alia, judgment in TNT Freight Management (Amsterdam) , C‑291/11, EU:C:2012:459, paragraph 32). | 0 |
863,857 | 32. As regards the first ground of justification put forward by the Austrian and German Governments, it is true that the Court has acknowledged in its case-law that, in conjunction with other grounds of justification, the balanced allocation of the power to impose taxes between the Member States could be considered to be a legitimate requirement (see, in particular, Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraphs 45, 46 and 51; Case C‑347/04 Rewe Zentralfinanz [2007] ECR I‑2647, paragraph 41; Case C‑231/05 Oy AA [2007] ECR I‑6373, paragraph 51; and Case C‑414/06, Lidl Belgium [2008] ECR I‑0000, paragraph 42). However, that case-law does not apply in circumstances such as those of the case in the main proceedings. | 44. The persons entitled to family benefits are, as is clear from Article 67 of Regulation No 883/200, to be determined in accordance with national law. | 0 |
863,858 | 28. Consequently, the fact that a ‘database’ within the meaning of Article 1(2) of Directive 96/9 does not satisfy the conditions of eligibility for protection by the ‘sui generis’ right under Article 7 of Directive 96/9, as the Court held in relation to football fixture lists (Case C‑46/02 Fixtures Marketing [2004] ECR I‑10365, paragraphs 43 to 47; Case C‑338/02 Fixtures Marketing [2004] ECR I‑10497, paragraphs 32 to 36; and Case C‑444/02 Fixtures Marketing , cited above, paragraphs 48 to 52), does not automatically mean that that same database is also not eligible for copyright protection under Article 3 of that directive. | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
863,859 | 25 The broad interpretation advocated by CFI is at variance with the settled case-law of the Court, according to which the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive, and in particular `the leasing or letting of immovable property', are to 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, inter alia, Case 348/87 Stichting Uitvoering Financiële Acties [1989] ECR 1737, paragraph 13; Case C-453/93 Bulthuis-Griffioen [1995] ECR I-2341, paragraph 19; Case C-2/95 SDC [1997] ECR I-3017, paragraph 20; and Case C-216/97 Gregg [1999] ECR I-4947, paragraph 12). | 53. Toutefois, la circonstance que le régime portuaire espagnol poursuive un objectif légitime n’est pas suffisante pour justifier valablement la restriction constatée. En effet, conformément à une jurisprudence constante de la Cour, l’application d’une réglementation d’un État membre poursuivant un objectif légitime doit être indispensable pour garantir sa réalisation. En d’autres termes, il faut que le même résultat que celui poursuivi par cette réglementation ne puisse pas être atteint par des règles moins contraignantes que celles mises en œuvre par celle-ci (voir, notamment, arrêts Collectieve Antennevoorziening Gouda, C‑288/89, EU:C:1991:323, point 15, et Commission/Portugal, C‑518/09, EU:C:2011:501, point 65). | 0 |
863,860 | 58. It should be borne in mind that, in accordance with settled case-law, in proceedings for failure to fulfil obligations under Article 226 EC, it is incumbent upon the Commission to prove the allegation that an obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court all the factual information needed to enable the Court to establish that the obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption (see, to that effect, inter alia, Case 290/87 Commission v Netherlands [1989] ECR 3083, paragraphs 11 and 12, and Case C‑241/08 Commission v France [2010] ECR I‑0000, paragraph 22). | 44. It follows that, even if a taxpayer in Mr Holböck’s position is justified in invoking Article 56 EC, that does not preclude the application of the Austrian legislation in circumstances such as those of the main proceedings. | 0 |
863,861 | 28. The fact that the amount of the usage fees is not determined unilaterally by the provider of the rescue services, but by agreement with the social security institutions which themselves have the status of a contracting authority (see, to that effect, Case C-300/07 Hans & Christophorus Oymanns [2009] ECR I-4779, paragraphs 40 to 59), and that those fees are not paid directly by the users of those services to the selected provider but through a central settlement office which is in charge of collecting and remitting those fees, by regular payments on account, does not affect that finding. The fact remains that all the remuneration obtained by the provider of the services comes from persons other than the contracting authority which awarded it the contract. | 82. Consequently, only economic disadvantages directly caused by natural disasters or by exceptional occurrences qualify for compensation as provided for in that provision(see to this effect Case C-156/98 Germany v Commission , cited above, paragraph 54, and Case C-301/96 Germany v Commission , cited above, paragraph 72). | 0 |
863,862 | 29. The mere fact that a post may be classified as ‘regulated’ under national law and has certain characteristics typical of the civil service in the Member State in question is irrelevant in that regard. Otherwise, in reserving to Member States the ability to remove at will certain categories of persons from the protection offered by Directive 1999/70 and the framework agreement, the effectiveness of those Community instruments would be in jeopardy as would their uniform application in the Member States (see, by analogy, Case C-151/02 Jaeger [2003] ECR I-8389, paragraphs 58 and 59, and Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraph 99). As is clear not only from the third paragraph of Article 249 EC, but also from the first paragraph of Article 2 of Directive 1999/70, in light of recital 17 of that Directive, the Member States are required to guarantee the result imposed by Community law ( Adeneler , paragraph 68). | 55. En ce qui concerne le moyen de défense tiré par la République italienne de l’impossibilité «juridique» d’exécution de la décision 2008/854, il importe de faire observer que les mesures nationales de sursis à exécution ne constituent pas un cas d’impossibilité absolue d’exécution de cette décision. Le respect des principes de sécurité juridique et de l’autorité de la chose jugée, invoqués par cet État membre en liaison avec la contestation de la légalité de la décision 2008/854 devant les juridictions de l’Union et dans le cadre d’une procédure nationale, ne saurait non plus rendre absolument impossible l’exécution de ladite décision (voir, en ce sens, arrêt du 6 octobre 2011, Commission/Italie, précité, point 44). | 0 |
863,863 | 99. Ainsi, la Commission, dans une décision qui porte sur un tel régime, n’est pas tenue d’effectuer une analyse de l’aide octroyée dans chaque cas individuel sur le fondement de ce régime. Ce n’est qu’au stade de la récupération des aides qu’il sera nécessaire de vérifier la situation individuelle de chaque entreprise concernée (voir arrêts du 7 mars 2002, Italie/Commission, C‑310/99, Rec. p. I‑2289, points 89 et 91, ainsi que Comitato «Venezia vuole vivere»/Commission, précité, point 63). | 56. It should first be noted that Article 7(5) of Directive 96/92 refers to the system operator of the national electricity transmission system, and Article 8(2) of that directive refers to the order of dispatching of electricity generating installations. However, first, the measures at issue in the main proceedings are a ministerial decree and decisions adopted by a public authority, not by the system operator. Secondly, the national provisions referred to in the actions lodged by AEM and AEM Torino relate to the conditions for access to the system and not the order of dispatching of electricity generating installations. | 0 |
863,864 | 23. However, that requirement cannot be carried so far as to mean that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered (judgment of 22 January 2009 in Case C-150/07 Commission v Portugal , not yet published in the ECR, paragraph 21 and the case-law cited). | 21. Cette exigence ne saurait toutefois aller jusqu’à imposer en toute hypothèse une coïncidence parfaite entre l’énoncé des griefs dans la lettre de mise en demeure, le dispositif de l’avis motivé et les conclusions de la requête, à condition que l’objet du litige n’ait pas été étendu ou modifié (arrêts précités Commission/Espagne, point 28, et Commission/Allemagne, point 37). | 1 |
863,865 | 25. It should be noted that Articles 203 and 204 of the Customs Code have different spheres of application. Whilst the first provision covers conduct leading to the goods being removed from customs supervision, the second covers failure to fulfil obligations and non-compliance with the conditions of the various customs procedures which have no effect on customs supervision (judgment in DSV Road , C‑187/14, EU:C:2015:421, paragraph 22). | 36. It is important to note, moreover, that the principle which applies where a Member State has not exercised the powers conferred on it by Article 13B(f) of the Sixth Directive must apply a fortiori where, in exercising that power, a Member State has adopted national provisions which are not compatible with the directive. | 0 |
863,866 | 59. Therefore, EU law does not require a national court to disapply domestic rules of procedure conferring finality on a judgment, even if to do so would make it possible to remedy a domestic situation which is incompatible with EU law (see, to that effect, the judgments in Eco Swiss , C‑126/97, EU:C:1999:269, paragraphs 46 and 47; Kapferer , EU:C:2006:178, paragraphs 20 and 21; Fallimento Olimpiclub , EU:C:2009:506, paragraphs 22 and 23; Asturcom Telecomunicaciones , C‑40/08, EU:C:2009:615, paragraphs 35 to 37; and Commission v Slovakia , C‑507/08, EU:C:2010:802, paragraphs 59 and 60). | 40. Certes, il y a lieu d’admettre que le principe de sécurité juridique, qui est un principe général du droit de l’Union, est de nature à justifier que les effets juridiques d’une convention soient respectés y compris, dans la mesure que ce principe commande, dans le cas d’une convention conclue avant que la Cour ne se soit prononcée sur les implications du droit primaire à l’égard des conventions de ce type et qui, a posteriori, se révélerait contraire à certaines de ces implications (voir, en ce sens, arrêt ASM Brescia, précité, points 69 et 70). Cependant, ledit principe ne saurait être invoqué pour donner à une convention une extension contraire aux principes d’égalité de traitement et de non-discrimination ainsi qu’à l’obligation de transparence qui en découle. Il est indifférent, à cet égard, que cette extension puisse constituer une solution raisonnable propre à mettre fin à un litige survenu entre les parties concernées, pour des raisons totalement indépendantes de leur volonté, quant à la portée de la convention qui les lie. | 0 |
863,867 | La Cour a déjà eu l’occasion de préciser dans ce contexte que, pour être conforme au principe d’effectivité, le calcul des
intérêts afférents aux sommes perçues en violation du droit de l’Union, tels que ceux dont le paiement est réclamé dans l’affaire
au principal, doit être effectué de sorte qu’il soit tenu compte de la période d’indisponibilité des sommes indûment payées,
cette dernière allant de la date du paiement indu de la taxe en cause à la date de la restitution intégrale de celle-ci (voir,
en ce sens, arrêt du 18 avril 2013, Irimie, C‑565/11, EU:C:2013:250, points 27 et 28). | 28. That loss depends, inter alia, on the duration of the unavailability of the sum unduly levied in breach of European Union law and thus occurs, in principle, during the period between the date of the undue payment of the tax at issue and the date of repayment thereof. | 1 |
863,868 | 51. It must be observed, as a preliminary point, that, according to settled case-law, the provisions of a directive must be interpreted in the light of the aims pursued by the directive and the system it establishes (see, to that effect, Case C-265/07 Caffaro [2008] ECR I-0000, paragraph 14). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
863,869 | 78. According to settled case-law, the derogation provided for under those articles must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority (see Reyners , paragraph 45; Case C‑42/92 Thijssen [1993] ECR I‑4047, paragraph 8; and Commission v Portugal , paragraph 36). | 94. In those circumstances, the Austrian practice may be regarded as proportionate only if the prohibition on marketing as foodstuffs the vitamin preparations or preparations containing minerals concerned and the obligation to obtain a marketing authorisation for medicinal products are both actually necessary, in each particular case, to ensure the safeguarding of public health. The argument of the Austrian Government that that practice is necessarily proportionate on the ground that the preparations concerned can in any case be marketed as medicinal products cannot therefore be accepted. | 0 |
863,870 | 40. If the court making the reference, after carrying out that assessment, should nevertheless make a finding of anti-competitive effects due to Post Danmark’s actions, it should be recalled that it is open to a dominant undertaking to provide justification for behaviour that is liable to be caught by the prohibition under Article 82 EC (see, to this effect, Case 27/76 United Brands and United Brands Continentaal v Commission [1978] ECR 207, paragraph 184; Joined Cases C‑241/91 P and C‑242/91 P RTE and ITP v Commission [1995] ECR I‑743, paragraphs 54 and 55; and TeliaSonera Sverige , paragraphs 31 and 75). | 79 For another thing, it assists in meeting a desire to control costs and to prevent, as far as possible, any wastage of financial, technical and human resources. Such wastage is all the more damaging because it is generally recognised that the hospital care sector generates considerable costs and must satisfy increasing needs, while the financial resources which may be made available for health care are not unlimited, whatever the mode of funding applied. | 0 |
863,871 | 28 As the Council stated in the third recital in the preamble to Recommendation 84/635/EEC of 13 December 1984 on the promotion of positive action for women (OJ 1984 L 331, p. 34), `existing legal provisions on equal treatment, which are designed to afford rights to individuals, are inadequate for the elimination of all existing inequalities unless parallel action is taken by governments, both sides of industry and other bodies concerned, to counteract the prejudicial effects on women in employment which arise from social attitudes, behaviour and structures' (Kalanke, paragraph 20). | 15 HOWEVER, THE FACT THAT AN AGREEMENT MERELY AUTHORIZES THE CONCESSIONAIRE TO EXPLOIT SUCH A NATIONAL RULE OR DOES NOT PROHIBIT HIM FROM DOING SO, DOES NOT SUFFICE, IN ITSELF, TO RENDER THE AGREEMENT NULL AND VOID . | 0 |
863,872 | 34. In that regard it must be noted that, in considering Article 16(2) of Directive 2004/38, the Court has held that the acquisition of a right of permanent residence by family members of a Union citizen who are not nationals of a Member State is dependent, in any event, on the fact that, first, the Union citizen himself satisfies the conditions laid down in Article 16(1) of that directive and, secondly, those family members have resided with him for the period in question ( Alarape and Tijani , EU:C:2013:290, paragraph 34). | 23 In that regard, the Court has held that such limitation periods cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (Case C-188/95 Fantask and Others v Industriministeriet [1997] ECR I-6783, paragraph 48). | 0 |
863,873 | 32. En outre, une fois établie l’existence d’un intérêt transfrontalier certain concernant l’attribution d’une concession de services donnée, l’obligation de transparence qui s’impose à l’autorité concédante bénéficie à tout soumissionnaire potentiel (voir, en ce sens, arrêt du 13 avril 2010, Wall, C‑91/08, Rec. p. I‑2815, point 36), fût-il établi dans le même État membre que cette autorité. | 74. It must be pointed out that the actor or actors of protection with respect to which the reality of a change of circumstances in the country of origin is to be assessed are, under Article 7(1) of the Directive, either the State itself or the parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State. | 0 |
863,874 | 74. While it is true that, according to the consistent case-law cited in paragraph 71 of this judgment, in the absence of Community harmonisation, it is for the legislation of each Member State to determine, in particular, the conditions concerning the requirement to be insured with a social security scheme and, consequently, the method of financing that scheme, the Member States must nevertheless comply with Community law when exercising those powers (see, in particular, Kohll , paragraph 19, Smits and Peerbooms , paragraph 46). It follows that that power of the Member States is not unlimited (Case C‑103/06 Derouin [2008] ECR I-0000, paragraph 25). | 23 Nevertheless, the resumption of milk production by that category of producers was envisaged only inasmuch as excluding them had constituted a breach of their legitimate expectation of being able to resume deliveries once their non-marketing or conversion undertaking had come to an end (Mulder and Von Deetzen, paragraphs 26 and 15 respectively). | 0 |
863,875 | 16. For the purpose of answering that question, it is to be borne in mind that the Court has consistently held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of each benefit, in particular its purposes and the conditions on which it is granted, and not on whether it is classified as a social security benefit by national legislation (see, inter alia, Case 249/83 Hoeckx [1985] ECR 973, paragraph 11; Case C-111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 28, and Case C-332/05 Celozzi [2007] ECR I-563, paragraph 16). | 31. As long as it has not been withdrawn or declared invalid, an E 101 certificate takes effect in the internal legal order of the Member State in which the workers concerned are posted and, therefore, binds its institutions. | 0 |
863,876 | 46
It is true that, according to the Court’s case-law, failure to comply with the procedural rules relating to the adoption of an act adversely affecting an individual, such as a failure on the part of the Commission to adopt a decision within the time limit prescribed by the EU legislature, constitutes an infringement of essential procedural requirements, which it is a matter for the EU judicature to raise of its own motion (see, to that effect, judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraph 103, and of 24 June 2015, Germany v Commission, C‑549/12 P and C‑54/13 P, EU:C:2015:412,, paragraph 92). | 33. Article 2(a) of Directive 2001/29 provides that authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their works. It follows that protection of the author’s right to authorise or prohibit reproduction is intended to cover ‘work’. | 0 |
863,877 | 30 Thus, Community law does not in principle preclude legislation of a Member State laying down, alongside a limitation period applicable under the ordinary law to actions between individuals for the recovery of sums paid but not due, special detailed rules, which are less favourable, governing claims and legal proceedings to challenge the imposition of taxes and other charges (see Edis, cited above, paragraph 37; SPAC, cited above, paragraph 21; Joined Cases C-10/97 to C-22/97 Ministero delle Finanze v In.Co.Ge.'90 and Others [1998] ECR I-6307, paragraph 27; and Aprile, cited above, paragraph 21). The position would be different only if those detailed rules applied solely to actions based on Community law for the repayment of such taxes or charges (judgments cited above in Edis, paragraph 37; Spac, paragraph 21; and Aprile, paragraph 21). | 98. Moreover, it is apparent from that decision that the appellant is credited with United Kingdom national insurance contributions which are added each week to her national insurance account. | 0 |
863,878 | 76. It follows from the foregoing considerations that, by entering into or maintaining in force, despite the renegotiation of the 1957 Agreement, international commitments concerning air fares and rates charged by carriers designated by the United States on intra-Community routes and concerning CRSs offered for use or used on Netherlands territory, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 5 of the Treaty and under Regulations Nos 2409/92 and 2299/89 (see, to that effect, Commission v Denmark , paragraphs 110 to 112; Commission v Sweden , paragraphs 106 to 108; Commission v Finland , paragraphs 111 to 113; Commission v Belgium , paragraphs 124 to 126; Commission v Luxembourg , paragraphs 116 to 118; Commission v Austria , paragraphs 124 to 126, and Commission v Germany , paragraphs 135 to 137).
Failure to fulfil obligations arising from infringement of Article 52 of the Treaty
Arguments of the parties | 44 THE ANSWER TO THE EIGHTH QUESTION MUST THEREFORE BE THAT AN ACTION AGAINST THE SUCCESSFUL TENDERER FOR FAILURE TO FULFIL HIS OBLIGATIONS IS NOT BARRED BY APPLICATION OF THE PRINCIPLE OF LEGAL CERTAINTY ONCE THE SECURITY HAS BEEN RELEASED .
THE NINTH QUESTION | 0 |
863,879 | 35. Or, selon une jurisprudence constante de la Cour, il ressort à la fois des termes et de l’économie de l’article 267 TFUE que la procédure préjudicielle présuppose qu’un litige soit effectivement pendant devant les juridictions nationales, dans le cadre duquel elles sont appelées à rendre une décision susceptible de prendre en considération l’arrêt de la Cour rendu à titre préjudiciel (voir, notamment, arrêts García Blanco, C‑225/02, EU:C:2005:34, point 27, et Pohotovosť, C‑470/12, EU:C:2014:101, point 28). | 50 In that regard, although, as the Advocate General observes at points 53 to 64 of his Opinion, SA HLMs are commercial companies, their activities are very narrowly circumscribed. | 0 |
863,880 | 35. Thus, the sole criterion referred to in that provision is that the trader’s practice must be directly connected with the promotion, sale or supply of a product or service to consumers (see, inter alia, judgments in Plus Warenhandelsgesellschaft , C‑304/08, EU:C:2010:12, paragraph 39, and in CHS Tour Services , C‑435/11, EU:C:2013:574, paragraph 27). | 97. As to earlier assessments made by the Commission, it is true that, on 21 June 1985, it responded to written question No 13/85 from an MEP as follows: ‘feta describes a type of cheese and is not a designation of origin’ (OJ 1985 C 248, p. 13). | 0 |
863,881 | S’agissant de la forme juridique de l’acte à adopter, il y a lieu de relever qu’elle n’est pas nécessairement requise lors
de l’indication de la base juridique de cet acte. Ainsi que l’a fait valoir à juste titre le Conseil, de nombreuses dispositions
des traités, qui sont constitutives de bases juridiques, ne mentionnent pas la forme des actes juridiques qui peuvent être
adoptés. Par ailleurs, l’article 296 TFUE, selon lequel, « [l]orsque les traités ne prévoient pas le type d’acte à adopter,
les institutions le choisissent au cas par cas, dans le respect des procédures applicables et du principe de proportionnalité »,
prévoit expressément l’hypothèse dans laquelle les dispositions du traité FUE ne précisent pas la forme des actes susceptibles
d’être adoptés (arrêt du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 18). | 32. Selon une jurisprudence constante, dans le cadre d’un recours en manquement, il incombe à la Commission d’établir l’existence du manquement allégué. C’est elle qui doit apporter à la Cour les éléments nécessaires à la vérification par celle-ci de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (voir, notamment, arrêts du 25 mai 1982, Commission/Pays-Bas, 96/81, Rec. p. 1791, point 6; du 26 juin 2003, Commission/Espagne, C‑404/00, Rec. p. I‑6695, point 26, et du 26 avril 2007, Commission/Italie, C‑135/05, Rec. p. I‑3475, point 26). | 0 |
863,882 | 61
So far as concerns, in particular, Article 13(2)(f), it should be noted that the fact that the legislation of a Member State ceases to be applicable constitutes a condition for the application of that provision (see, to that effect, judgment of 19 March 2015, Kik, C‑266/13, EU:C:2015:188, paragraph 51). | 30 That interpretation is, moreover, corroborated by the purpose of the directive which, under Article 1 thereof, is to ensure that any national measure to control the prices of medicinal products for human use or to restrict the range of medicinal products covered by their national health insurance systems complies with the requirements of the directive. | 0 |
863,883 | 58. The Court has thus recognised that it is compatible with Community law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty (see, to this effect, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989, paragraph 5; Case 45/76 Comet [1976] ECR 2043, paragraphs 17 and 18; Denkavit italiana , paragraph 23; Case C-208/90 Emmott [1991] ECR I‑4269, paragraph 16; Palmisani , paragraph 28; Case C-90/94 Haahr Petroleum [1997] ECR I‑4085, paragraph 48; and Case C-255/00 Grundig Italiana [2002] ECR I‑8003, paragraph 34). Such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by Community law ( Grundig Italiana , paragraph 34). | 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 |
863,884 | 36. The above interpretation is not called into question by paragraphs 42 and 43 of the Thomsen judgment, concerning a transfer of reference quantities with account being taken of the areas of land used for dairy production, since it does not follow from that judgment that the lessor could not have transferred the reference quantity to another producer, without the holding to which it was attached, through a State sales office, as soon as possible after the expiry of the lease. | 34 In that respect, it should be recalled that a person who has the intention, confirmed by objective evidence, to commence independently an economic activity within the meaning of Article 4 of the Sixth Directive and who incurs the first investment expenditure for those purposes must be regarded as a taxable person. Acting in that capacity, he has therefore, in accordance with Article 17 et seq. of the Sixth Directive, the right immediately to deduct the VAT payable or paid on the investment expenditure incurred for the purposes of the transactions which he intends to carry out and which give rise to the right to deduct, without having to wait for the actual exploitation of his business to begin (Case C-37/95 Belgian State v Ghent Coal Terminal [1998] ECR I-1, paragraph 17; Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others v AEAT [2000] ECR I-0000, paragraph 47). | 0 |
863,885 | 64. As is apparent from Case 81/72 Commission v Council , paragraphs 3 and 4; Case 70/74 Commission v Council [1975] ECR 795, paragraph 7; and Case 59/81 Commission v Council , paragraph 8, the Council decided, first of all, in 1972, to apply, as an experiment and for a period of three years, a system of adjustment of remuneration involving recourse to two specific indices, while rejecting the automatic application of an arithmetical mean between the two indices which were adopted. In the light of that approach, the Court held that, by its decision, the Council, acting within the framework of the powers relating to the remunerations of the staff conferred on it by Article 65 of the Staff Regulations, assumed obligations which it has bound itself to observe for the period it has defined (see Case 81/72 Commission v Council , paragraphs 8 and 9; Case 70/74 Commission v Council , paragraphs 20 to 22; and Case 59/81 Commission v Council , paragraph 8). | 36. The employer is therefore free to reward length of service without having to establish the importance it has in the performance of specific tasks entrusted to the employee. | 0 |
863,886 | 87. Consequently, it must be held that a provision which is, in substance, identical to the previous legislation, or limited to reducing or eliminating an obstacle to the exercise of Community rights and freedoms in the earlier legislation, will be covered by the derogation provided for in Article 17(6) of the Sixth Directive. By contrast, legislation based on an approach which differs from that of the previous law and establishes new procedures cannot be treated as legislation existing at the date fixed in the Community measure in question (see, to that effect, Case C-155/01 Cookies World [2003] ECR I‑8785, paragraph 63, and, by analogy, Holböck , paragraph 41). | 14 THE REPLY TO QUESTION 2 SHOULD THEREFORE BE THAT IT IS FOR THE NATIONAL AUTHORITIES TO DECIDE AS TO THE RECOVERY OF SUMS UNDULY CHARGED ON THE BASIS OF COMMUNITY REGULATIONS WHICH HAVE BEEN DECLARED INVALID ; IT IS FOR THEM TO SETTLE IN TERMS OF THE NATIONAL LAW APPLICABLE ALL ANCILLARY QUESTIONS SUCH AS WHETHER THE FACT THAT IT MAY HAVE BEEN POSSIBLE FOR THE CHARGE IMPROPERLY IMPOSED TO BE PASSED ON TO OTHER TRADERS OR TO CONSUMERS SHOULD BE TAKEN INTO ACCOUNT .
THIRD QUESTION | 0 |
863,887 | 51. As regards the second condition, after stating that the decisive test for finding that an infringement of EU law is sufficiently serious is whether the Member State concerned manifestly and gravely disregarded the limits of its discretion, the Court indicated the criteria that national courts — which have sole jurisdiction to find the facts in the main proceedings and to decide how to characterise the infringements of EU law at issue — may take into account, such as the degree of clarity and precision of the rule infringed ( Brasserie du pêcheur and Factortame , EU:C:1996:79, paragraphs 55, 56 and 58). | 29. Turning next to the justifications based on overriding reasons in the public interest, it should be recalled that the Court has already accepted that national rules may restrict the free movement of capital in the interest of objectives directed at resisting pressure on land or at maintaining, as a town and country planning measure, a permanent population in rural areas (see, to that effect, Konle , paragraph 40; Reisch and Others , paragraph 34, and Festersen , paragraphs 27 and 28). | 0 |
863,888 | 57. However, if, in exceptional cases, a national authority opposes precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision taken under Article 27 of Directive 2004/38, by invoking reasons of State security, the court with jurisdiction in the Member State concerned must have at its disposal and apply techniques and rules of procedural law which accommodate, on the one hand, legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of such a decision and, on the other hand, the need to ensure sufficient compliance with the person’s procedural rights, such as the right to be heard and the adversarial principle (see, by analogy, Kadi and Al Barakaat International Foundation v Council and Commission , paragraph 344). | 33 Second, it should be noted that under Article 8(1) of Regulation No 338/97 all commercial use of specimens of the species listed in Annex A to that regulation is prohibited. | 0 |
863,889 | 54. As to the second condition, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion (see the judgments cited above Brasserie du pêcheur and Factortame , paragraph 55, and Bergaderm and Goupil v Commission , paragraph 43). Where that institution has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 28; Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94 Dillenkofer and Others [1996] ECR I-4845, paragraph 25; Case C-127/95 Norbrook Laboratories [1998] ECR I-1531, paragraph 109; Case C-424/97 Haim [2000] ECR I-5123, paragraph 38, and Bergaderm and Goupil v Commission , cited above, paragraph 44). | 27. Against the background of a wide interpretation various aspects of the directive demonstrate that the term database within the meaning thereof is more specifically defined in terms of its function. | 0 |
863,890 | 19 As the Court held in its judgment in Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele ([1978] ECR 25, paragraphs 23-25), only advantages which are granted directly or indirectly through State resources are to be regarded as State aid within the meaning of Article 92(1) of the EEC Treaty. The wording of this provision itself and the procedural rules laid down in Article 93 of the EEC Treaty show that advantages granted from resources other than those of the State do not fall within the scope of the provisions in question. The distinction between aid granted by the State and aid granted through State resources serves to bring within the definition of aid not only aid granted directly by the State, but also aid granted by public or private bodies designated or established by the State. | 90. It follows from the foregoing that, in having failed to establish whether the Commission had taken into account, in its assessment of the private creditor test, the duration of a bankruptcy procedure, and in having filled, in that regard, by means of its own reasoning, a gap in the reasoning in the contested decision, the General Court erred in law. | 0 |
863,891 | 43 The information provided in orders for reference must not only be such as to 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 20 of the EC Statute of the Court of Justice. It is the Court's duty to ensure that the opportunity to submit observations is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to interested parties (see, in particular, Joined Cases C-128/97 and C-137/97 Testa and Modesti [1998] ECR I-2181, paragraph 6; Case C-325/98 Anssens [1999] ECR I-2969, paragraph 8; Albany, paragraph 40; and Brentjens', paragraph 39). | 25 It is true that an undertaking whose activity is subject to VAT is entitled to deduct the tax on the services supplied by accountants or legal advisers for the taxable person' s taxable transactions and that if BLP had decided to take out a bank loan for the purpose of meeting the same requirements, it would have been entitled to deduct the VAT on the accountant' s services required for that purpose. However, that is a consequence of the fact that those services, whose costs form part of the undertaking' s overheads and hence of the cost components of the products, are used by the taxable person for taxable transactions. | 0 |
863,892 | 43
In this connection, it should be noted first of all that Article 291(2) TFEU is not the only provision of EU law that confers an implementing power on the Council. Other provisions of primary law may confer such a power on it directly (see, to that effect, judgments of 26 November 2014, Parliament and Commission v Council, C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 50, and of 7 September 2016, Germany v Parliament and Council, C‑113/14, EU:C:2016:635, paragraphs 55 and 56). In addition, acts of secondary legislation may establish implementing powers outside the regime laid down in Article 291 TFEU (see, to that effect, judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraphs 78 to 86 and 98). | 28. À cet égard, il convient de rappeler que, conformément à une jurisprudence constante, dans le cadre d’une procédure en manquement, il incombe à la Commission d’établir l’existence du manquement allégué et d’apporter à la Cour les éléments nécessaires à la vérification par celle-ci de l’existence de ce manquement, sans que la Commission puisse se fonder sur une présomption q uelconque (voir, notamment, arrêts du 12 mai 2005, Commission/Belgique, C‑287/03, Rec. p. I‑3761, point 27, et du 6 octobre 2009, Commission/Suède, C‑438/07, non encore publié au Recueil, point 49). | 0 |
863,893 | 40 In substantiating the interpretation that the term `regular' (`régulier') is synonymous with `legal', the Court has relied not only on an analysis of the various language versions in which Decision No 1/80 was drawn up (see Birden, paragraphs 47 to 50) but also on the objective of that decision, whose social provisions constitute a further stage in securing freedom of movement for workers on the basis of Articles 48, 49 and 50 of the Treaty (see Birden, paragraph 52). As the Advocate General has observed in points 60 and 61 of his Opinion, the performance of work under legal conditions promotes integration of the Turkish nationals in the host Member State. | 17 As the Court has repeatedly held, revision is not an appeal procedure but an exceptional review procedure that allows the authority of res judicata attaching to a final judgment to be called in question on the basis of the findings of fact relied upon by the court. Revision presupposes the discovery of elements of a factual nature which existed prior to the judgment and which were unknown at that time to the court which delivered it as well as to the party applying for revision and which, had the court been able to take them into consideration, could have led it to a different determination of the proceedings (see, in particular, Case C-130/91 REV II ISAE/VP and Interdata v Commission, cited above, paragraph 6). | 0 |
863,894 | 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). | 42 The answer to be given to part (a) of the second question must therefore be that Article 2(1) of the Sixth Directive is to be interpreted as meaning that the annual subscription fees of members of a sports association such as that concerned in the main proceedings can constitute the consideration for the services provided by the association, even though members who do not use or do not regularly use the association's facilities must still pay their annual subscription fees. | 0 |
863,895 | 23. Articles 5(6) and 6(2) of the Sixth Directive treat certain transactions for which no consideration is actually received by the taxable person as supplies of goods and provisions of services effected for consideration. The purpose of those provisions is to ensure equal treatment as between a taxable person who applies goods or services for his own private use or for that of his staff and a final consumer who acquires goods or services of the same type (see Case C‑230/94 Enkler [1996] ECR I‑4517, paragraph 35; Fillibeck , cited above, par agraph 25; and Fischer and Brandenstein , cited above, paragraph 56). In pursuit of that objective, Articles 5(6) and 6(2)(a) prevent a taxable person who has been able to deduct VAT on the purchase of goods used for his business from escaping payment of that tax when he applies those goods from his business for his own private use or that of his staff and from thereby enjoying advantages to which he is not entitled by comparison with an ordinary consumer who buys goods and pays VAT on them (see Case C‑20/91 De Jong [1992] ECR I‑2847, paragraph 15; Enkler , cited above, paragraph 33; Bakcsi , cited above, paragraph 42; and Fischer and Brandenstein , paragraph 56). Similarly, Article 6(2)(b) of the Sixth Directive prevents a taxable person or members of his staff from obtaining, free of tax, services provided by the taxable person for which a private individual would have to have paid VAT. | 47. En effet, conformément aux articles 256, paragraphe 1, second alinéa, TFUE et 58, premier alinéa, du statut de la Cour, le pourvoi est limité aux questions de droit. Le Tribunal est, dès lors, seul compétent pour constater et apprécier les faits pertinents ainsi que pour apprécier les éléments de preuve (voir, en ce sens, arrêt du 18 juillet 2006, Rossi/OHMI, C-214/05 P, Rec. p. I-7057, point 26; ordonnances du 30 juin 2010, Royal Appliance International/OHMI, C-448/09 P, point 77, et du 15 décembre 2010, Goncharov/OHMI, C-156/10 P, point 38). | 0 |
863,896 | 44. It is thus clear from the 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 public interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49; Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55; and Test Claimants in the FII Group Litigation , paragraph 46). | 34. It must be stated at the outset that the issue of the application of the special rules for determining jurisdiction, laid down in that section of Regulation No 44/2001, arises in the present case only if Mr Spies von Büllesheim can be considered to be bound, through an ‘individual contract of employment’ for the purposes of Article 18(1) of that regulation, to the company of which he was a director and manager, and could thus be classified as a ‘worker’ for the purposes of Article 18(2). | 0 |
863,897 | 23
So far as concerns, secondly, Article 20 TFEU, the Court has already had occasion to hold that the situation of a Union citizen who, like CS’s child of British nationality, has not made use of the right of freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation, that is to say, a situation which has no factor linking it with any of the situations governed by EU law (see judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 46; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 61; and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 43). | 229. Consequently, the undertakings in question must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. | 0 |
863,898 | 27
In matters relating to tort, delict or quasi-delict, the courts for the place where the harmful event occurred or may occur are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence (judgments of 16 May 2013, Melzer, C‑228/11, EU:C:2013:305, paragraph 27, and of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 40). | 56. A Member State retaining on a permanent basis a requirement for a work permit for nationals from non-members countries who are made available to an undertaking established in that Member State by an undertaking established in another Member State exceeds what is necessary to achieve the objective pursued by the legislation at issue in the main proceedings. | 0 |
863,899 | 41. Finally, contrary to the Commission’s submissions, it is clear from the Court’s settled case-law that the tax legislation of the Member States is capable of falling within Article 64(1) TFEU (see, inter alia, judgments in Test Claimants in the FII Group Litigation , C‑446/04, EU:C:2006:774, paragraphs 174 to 196; Holböck , C‑157/05, EU:C:2007:297, paragraphs 37 to 45; and Prunus and Polonium , C‑384/09, EU:C:2011:276, paragraphs 27 to 37). | 117
It is clear from this definition that an installation which exports the heat which it produces can be allocated allowances for that heat when it exports the heat ‘to an installation or other entity not covered by the Union scheme’. However, it cannot claim an allowance allocation for this heat when it transfers the heat to another installation subject to the emissions trading scheme. | 0 |
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