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865,000 | 22 It must be pointed out in that regard that, in its judgment of 25 May 1971 in Case 80/70 Defrenne v Belgium (( 1971 )) ECR 445, paragraphs 7 and 8, the Court stated that consideration in the nature of social security benefits is not in principle alien to the concept of pay . However, the Court pointed out that this concept, as defined in Article 119, cannot encompass social security schemes or benefits, in particular retirement pensions, directly governed by legislation without any element of agreement within the undertaking or the occupational branch concerned, which are compulsorily applicable to general categories of workers . | 36. The decisive criterion for the customs classification of goods under the common customs tariff must be sought in the objective characteristics and properties of the products at the time of their presentation for customs clearance. The objective characteristics and properties of products must be capable of being assessed at the time of customs clearance ( Foods Import , C‑38/95, EU:C:1996:488, paragraph 17, and Medion and Canon Deutschland EU:C:2007:553, paragraph 36). | 0 |
865,001 | 52. However, as soon as a Member State, either unilaterally or by way of a convention, imposes a charge to tax on the income, not only of resident shareholders, but also of non-resident shareholders, from dividends which they receive from a resident company, the situation of those non-resident shareholders becomes comparable to that of resident shareholders ( Test Claimants in Class IV of the ACT Group Litigation , paragraph 68; Denkavit Internationaal and Denkavit France , paragraph 35; and Amurta , paragraph 38). | 11 Applying those criteria, the action must be declared inadmissible inasmuch as it is founded on the infringement of Article 190 of the Treaty. In alleging that the contested provisions are inadequately reasoned for the purposes of that article, the Parliament has failed to indicate in an appropriate manner how that infringement, assuming that it has been committed, is such as to impair its own prerogatives. | 0 |
865,002 | 35. It is therefore clear that the legislation at issue in the main proceedings pursues, more generally, the objective of the protection of the health and life of humans that ranks foremost among the assets or interests protected by Article 36 TFEU. It is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they wish to assure (judgment in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 39 and the case-law cited). | 44. It may, however, become apparent that, sometimes, certain contractual terms do not wholly reflect the economic and commercial reality of the transactions. | 0 |
865,003 | 67. In that regard, the Court has ruled that the principle of fiscal neutrality, which is a fundamental principle of the common system of VAT, precludes treating similar supplies of services, which are thus in competition with each other, differently for VAT purposes (see, inter alia, Case C‑498/03 Kingscrest Associates and Montecello [2005] ECR I‑4427, paragraph 41; Case C‑246/04 Turn- und Sportunion Waldburg [2006] ECR I‑589, paragraph 33; and Case C‑409/04 Teleos and Others [2007] ECR I‑7797, paragraph 59) and, further, precludes economic operators who carry out the same activities from being treated differently as far as the levying of VAT is concerned (see, inter alia, Case C‑216/97 Gregg [1999] ECR I‑4947, paragraph 20, and Case C‑288/07 Isle of Wight Council and Others [2008] ECR I‑7203, paragraph 42). | 19 That global assessment implies some interdependence between the relevant factors, and in particular a similarity between the trade marks and between the goods or services covered. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa. The interdependence of these factors is expressly mentioned in the tenth recital in the preamble to the Directive, which states that it is indispensable to give an interpretation of the concept of similarity in relation to the likelihood of confusion, the appreciation of which depends, in particular, on the recognition of the trade mark on the market and the degree of similarity between the mark and the sign and between the goods or services identified (see Canon, paragraph 17). | 0 |
865,004 | 56. As to that submission, the principle of legal certainty prevents directives from creating obligations for individuals. For them, the provisions of a directive can only create rights (see Case 152/84 Marshall [1986] ECR 723, paragraph 48). Consequently, an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party (see, to this effect, Case C-221/88 Busseni [1990] ECR I-495, paragraphs 23 to 26, and Case C-97/96 Daihatsu Deutschland [1997] ECR I-6843, paragraphs 24 and 26). | 245. As regards the allegedly disproportionate nature of the fine, on the other hand, it must be borne in mind that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed for infringements of Community law (see, in particular, Baustahlgewebe v Commission , paragraph 129, and British Sugar v Commission , paragraph 48). | 0 |
865,005 | 28. Admittedly, if, in order to mitigate that situation, it is recognised that the tenderer has the right to challenge the validity of that ground of exclusion by means of an action for review which it brings in order to contest the lawfulness of the decision by which the contracting authority did not consider its bid as the best, it is conceivable that, at the end of that procedure, the review body may conclude that the bid actually should have been rejected at the outset and that the tenderer’s action for review falls to be dismissed on the ground that, given that fact, it neither has been nor risks being harmed by the infringement alleged (see Hackermüller , paragraph 27). | 37 Moreover, the acts were not isolated occurrences. As regards the use of mopeds on the breeding beaches, this is clear from the Greek Government's assertion that nocturnal supervision of the eastern part of beach at Laganas was, at the material time, particularly difficult to ensure owing to the length of the beach, the high number of access points and the low number of supervisors. As far as the presence of small boats in the relevant sea area is concerned, it should be noted that these were observed on two visits to Zakinthos by Commission officials, as stated at paragraphs 8 and 13 of this judgment. | 0 |
865,006 | 28 The Court has always accepted that it is compatible with Community law for reasonable limitation periods for bringing proceedings to be laid down in the interests of legal certainty (Case 33/76 Rewe [1976] ECR 1989, paragraph 5, Case 45/76 Comet [1976] ECR 2043, paragraphs 17 and 18, and Case 61/79 Denkavit ltaliana [1980] ECR 1205, paragraph 23). | 21 L' accord a, en effet, pour objectif, comme cela a déjà été exposé, de promouvoir une coopération globale entre les parties contractantes, notamment dans le domaine de la main-d' oeuvre . La circonstance que l' accord vise essentiellement à favoriser le développement économique du Maroc et qu' il se borne à établir une coopération entre les parties sans viser à une association ou à une future adhésion du Maroc aux Communautés n' est pas de nature à empêcher l' applicabilité directe de certaines de ses dispositions . | 0 |
865,007 | 37. It must be held in that regard that the exemption in respect of dividends received by resident parent companies is designed to avoid the imposition of a series of charges to tax on the profits of subsidiaries which are distributed by way of dividend to the parent companies of those subsidiaries. As the Advocate General stated at point 22 of his Opinion, since the French Republic has chosen to relieve its residents of such a liability to tax, it must extend that relief to non-residents to the extent to which an imposition of that kind on those non-residents results from the exercise of its tax jurisdiction over them (see, to that effect, Test Claimants in Class IV of the ACT Group Litigation , paragraph 70). | 41 With respect to the legislation adopted by the other autonomous communities, the provisions cited by the Spanish Government have for the most part been communicated to the Commission only as an annex to the rejoinder. They are not accompanied by any direct reference to the classes of project listed in Annex II to the Directive. | 0 |
865,008 | 24. Concerning the scope of those provisions, the Court has held that the rules prohibiting restrictions on the freedom of establishment, set out in Article 31 of the EEA Agreement, are identical to those imposed by Article 43 EC (Case C‑471/04 Keller Holding [2006] ECR I‑2107, paragraph 49). The Court has also held that, in the area in question, the rules of the EEA Agreement and those of the EC Treaty must be given a uniform interpretation (Case C‑452/01 Ospelt and Schlössle Weissenberg [2003] ECR I‑9743, paragraph 29; Case C‑286/02 Bellio F.lli [2004] ECR I‑3465, paragraph 34). | 71. The exercise of that right by the proprietor of the trade mark with a reputation is not conditional upon there being a likelihood of confusion on the part of the relevant section of the public ( Adidas-Salomon and Adidas Benelux , paragraph 31, and Case C‑487/07 L’Oréal and Others , paragraph 36). Moreover, in so far as Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94 require there to be some degree of similarity between the trade mark at issue and the sign used by the third party, it is sufficient to note that that condition is met in the present case, given the close correspondence between (i) the sign ‘Interflora’ and the variants used by M & S and (ii) the trade mark INTERFLORA. | 0 |
865,009 | 26
The basis of assessment for a supply of services is everything which makes up the consideration for the service provided and a supply of services is therefore taxable only if there is a direct link between the service supplied and the consideration received. It follows that a supply of services is effected ‘for consideration’ within the meaning of Article 2(1)(c) of Directive 2006/112, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient (judgments of 3 March 1994 in Tolsma, C‑16/93, EU:C:1994:80, paragraphs 13 and 14; 21 March 2002 in Kennemer Golf, C‑174/00, EU:C:2002:200, paragraph 39; and 6 October 2009 in SPÖ Landesorganisation Kärnten, C‑267/08, EU:C:2009:619, paragraph 19). | 14 It follows that a supply of services is effected "for consideration" within the meaning of Article 2(1) of the Sixth Directive, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient. | 1 |
865,010 | 59 The Court stated in paragraph 51 of Försäkringsaktiebolaget Skandia that there is a risk that certain investments might compromise the solvency of insurance undertakings, but that, in order to guard against such a risk, it is for the national supervisory authorities of the home Member State to maintain, in accordance with Article 13 et seq. of Directive 73/239, financial supervision of insurance undertakings. | 27. The same considerations necessarily apply in the case of a transaction such as that at issue in the main proceedings, namely a legal person’s acquisition of land by means of a merger and takeover, which, under German law, is subject to compulsory rectification of the land register. | 0 |
865,011 | 63 That being so, a document of that nature cannot be deemed equivalent, for foreigners deriving rights from Decision No 1/80, to an authorisation of residence implying a discretion on the part of the national authorities such as is provided for foreigners in general (see, by analogy, Case 8/77 Sagulo [1979] ECR 1495, paragraph 8). | 60. Cet argument ne saurait être accueilli. En effet, s’agissant des lignes directrices, la Cour a déjà jugé, ainsi que le Tribunal l’a rappelé au point 82 de l’arrêt attaqué, que celles-ci déterminent, de manière générale et abstraite, la méthodologie que la Commission s’est imposée aux fins de la fixation du montant des amendes infligées en vertu de l’article 15 du règlement nº 17 et assurent, par conséquent, la sécurité juridique des entreprises (voir arrêts Dansk Rørindustri e.a./Commission, précité, point 213, ainsi que du 21 septembre 2006, JCB Service/Commission, C‑167/04 P, Rec. p. I‑8935, point 209). | 0 |
865,012 | 26. It is apparent from settled case-law that, in order to determine whether national legislation falls within the scope of one or other of the fundamental freedoms guaranteed by the Treaty, the purpose of the legislation concerned must be taken into consideration (see, to that effect, Case C‑157/05 Holböck [2007] ECR I-4051, paragraph 22 and the case-law cited). | 28. As is apparent from the first recital in the preamble to Directive 2003/88, the directive codifies Directive 93/104. Article 7 of Directive 2003/88 concerning the right to paid annual leave reproduces the terms of Article 7 of Directive 93/104 exactly. | 0 |
865,013 | 43. However, that provision does not preclude a national of a Member State who, by virtue of Article 18 EC and the provisions adopted to implement that article, is lawfully resident in the territory of another Member State where he or she intends to start or pursue education from relying during that residence on the fundamental principle of equal treatment enshrined in the first paragraph of Article 12 EC (see, to that effect, Bidar , paragraph 46). | 52. That conclusion is borne out by the judgment in Case C-271/06 Netto Supermarkt [2008] ECR I-771, paragraphs 27 and 29, concerning VAT exemption for supplies of goods for export to a destination outside the European Union, in which the Court held that a supplier must be able to rely on the lawfulness of the transaction that he carries out without risking the loss of his right to exemption from VAT, if he is in no position to recognise – even by exercising due commercial care – that the conditions for the exemption were in fact not met, because the export proofs provided by the purchaser had been forged. | 0 |
865,014 | 53. Secondly, it is also apparent from the order for reference that the members’ contributions are paid without any specific consideration in return within the meaning of the Court’s case-law (see, to that effect, Case C‑380/98 University of Cambridge [2000] ECR I‑8035, paragraphs 23 to 25). No contractual consideration is linked to those payments, since neither the liability to pay contributions nor their amount is the result of any agreement between the statutory sickness insurance funds and their members, since membership of the funds, and payment of contributions, are both required by law (see, to that effect, Bayerischer Rundfunk and Others , cited above, paragraph 45). In addition, the amount of contributions is based solely on the capacity to contribute of each member and other factors, such as the age of the insured person, his state of health or the number of co-insured persons are irrelevant in that regard. | 24 The position is quite different in the case of the sources of financing referred to in paragraphs (b) and (c) of the first question. The sums paid by one or more contracting authorities constitute in that case consideration for contractual services provided by the university, such as the execution of particular research work or the organisation of seminars and conferences. It matters little in this context whether those activities of a commercial nature happen to coincide with the teaching and research activities of the university. The contracting authority has in fact an economic interest in providing the service. | 1 |
865,015 | 79. If examination of a Community measure shows that it pursues a twofold purpose or that it has a twofold component, and if one of these is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component (see, in particular, Case C-42/97 Parliament v Council [1999] ECR I-869, paragraphs 39 and 40, and Case C-36/98 Spain v Council , cited above, paragraph 59). | 18. Il importe tout d’abord de souligner que, lorsque la Cour est saisie d’un renvoi préjudiciel en matière de classement tarifaire, sa fonction consiste davantage à éclairer la juridiction nationale sur les critères dont la mise en œuvre permettra à cette dernière de classer correctement les produits en cause dans la NC qu’à procéder elle-même à ce classement, et ce d’autant plus qu’elle ne dispose pas nécessairement de tous les éléments indispensables à cet égard. Ainsi, la juridiction nationale apparaît en tout état de cause mieux placée pour procéder au classement en question (voir arrêts Proxxon, C‑500/04, EU:C:2006:111, point 23; Digitalnet e.a., C‑320/11, C‑330/11, C‑382/11 et C‑383/11, EU:C:2012:745, point 61, et ordonnance Mineralquelle Zurzach, C‑139/14, EU:C:2014:2313, point 28). | 0 |
865,016 | 47. According to settled case-law, the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (Case C-210/03 Swedish Match [2004] ECR I‑11839, paragraph 47, and Case C-479/04 Laserdisken [2006] ECR I‑8089, paragraph 53). | 30. Moreover, the allowance at issue in the main proceedings is an allowance which is subject to the Belgian statutory unemployment benefits scheme. The fact that an unemployed person in a situation such as that of Mr De Cuyper is exempt from the requirement to register as a job-seeker and consequently from the requirement of being available for work in no way affects the fundamental characteristics of the allowance as set out in paragraphs 27 and 28 of this judgment. | 0 |
865,017 | 57 As the Court has held many times, the provisions of Article 4 of the ECSC Treaty apply independently only in the absence of more specific rules; if they have been adopted or are governed by other provisions of the ECSC Treaty, texts relating to the same provision must be considered as a whole and applied together (Groupement des Industries Sidérurgiques Luxembourgeoises, p. 195; Case C-128/92 Banks v British Coal [1994] ECR I-1209, paragraph 11; Case C-18/94 Hopkins and Others v National Power and Powergen [1996] ECR I-2281, paragraph 16). | 47. Thus, it is of little importance that the act of transfer in question is for the purpose of creating another database, whether in competition with the original database or not, and whether the same or a different size from the original, nor is it relevant that the act is part of an activity, whether commercial or not, other than the creation of a database (see, to that effect, The British Horseracing Board and Others , paragraphs 47 and 48). Moreover, as is apparent from recital 44 in the preamble to Directive 96/9, the transfer of all or a substantial part of the contents of a protected database to another medium, which would be necessary for the purposes of a simple on‑screen display of those contents, is of itself an act of extraction that the holder of the sui generis right may make subject to his authorisation. | 0 |
865,018 | 34. More specifically, under Article 6(1)(b) and (c) of Directive 95/46, the data must be ‘collected for specified, explicit and legitimate purposes’ and must be ‘adequate, relevant and not excessive’ in relation to those purposes. In addition, under Article 7(c) and (e) of the directive, the processing of personal data is permissible only if it ‘is necessary for compliance with a legal obligation to which the controller is subject’ or ‘is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed’ ( Österreichischer Rundfunk and Others , paragraph 66). | 25. In that connection, it must be recalled that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Case C‑184/12 Unamar [2013] ECR, paragraph 28 and the case-law cited). | 0 |
865,019 | 31. Those functions include not only the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services (‘the function of indicating origin’), but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising ( L’Oréal and Others , paragraph 58, and Google France and Google , paragraph 77). | 77. Those functions include not only the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services (‘the function of indicating origin’), but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising ( L’Oréal and Others , paragraph 58). | 1 |
865,020 | 64. According to settled case-law, questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑300/01 Salzmann [2003] ECR I‑4899, paragraphs 29 and 31). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 39; Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 25; and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑11421, paragraph 22). | 24 THAT CONCLUSION STEMS , IN THE FIRST PLACE , FROM THE FACT THAT THE AGREEMENT IS BASED ON A SINGLE SYSTEM OF CHECKS INVOLVING THE USE OF CONFORMITY LABELS WHICH REPLACED AN EARLIER SYSTEM OF CHECKS BASED ON LISTS OF AUTHORIZED APPLIANCES , AND THAT ONLY MANUFACTURERS AND SOLE IMPORTERS MAY OBTAIN THOSE LABELS . THAT CONCLUSION IS ALSO BASED ON CERTAIN STATEMENTS MADE BY THE CEG AND BY THE FCAE AT THE PRELIMINARY MEETINGS . DURING THOSE MEETINGS , THE CEG STATED THAT IT WISHED TO OBTAIN FOR ITS MEMBERS PREFERENTIAL TREATMENT AS AGAINST NON-MEMBERS AND THAT IT REGARDED THE PROPOSED AGREEMENT AS A ' ' WEAPON ' ' AGAINST PARALLEL IMPORTS . MOREOVER , THE FCAE EMPHASIZED THAT THE DISADVANTAGE OF THE SYSTEM OF LISTING AUTHORIZED APPLIANCES WAS THAT PARALLEL IMPORTERS ALSO BENEFITED FROM THE VERIFICATION OBTAINED BY THE OFFICIAL IMPORTER WITHOUT HAVING TO SHARE IN THE COSTS . FINALLY , THE INTENTION OF HINDERING PARALLEL IMPORTS IS ALSO APPARENT FROM THE STEPS TAKEN BY THE CEG AND ANSEAU AFTER THE CONCLUSION OF THE AGREEMENT IN ORDER TO PUT DEALERS AND CONSUMERS ON THEIR GUARD AGAINST THE SALE AND PURCHASE RESPECTIVELY OF APPLIANCES NOT BEARING A CONFORMITY LABEL .
| 0 |
865,021 | 40. Although the restriction found in paragraph 36 of this judgment is capable of being justified by objective considerations of public interest such as those referred to in paragraph 39 above, it must also not be disproportionate in relation the objective pursued. It follows from the case-law that a measure is proportionate if, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain that objective ( De Cuyper , paragraph 42, and Tas-Hagen and Tas , paragraph 35). | 67. Article 20 of Regulation No 562/2006 provides that internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out. Under Article 2, point 10, of that regulation ‘border checks’ means the checks carried out at border crossing points, to ensure that persons may be authorised to enter the territory of the Member States or authorised to leave it. | 0 |
865,022 | 25. So far as concerns the power of the competent authorities, it has been established by the Court’s case-law that discretion which enables those authorities to determine the beneficiaries or the conditions under which the financial assistance is provided cannot be considered to be general in nature (see, to that effect, Case C‑256/97 DM Transport [1999] ECR I‑3913, paragraph 27 and the case-law cited). | 38 By virtue of that principle, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution intends to pursue (Schräder, cited above, paragraph 22). | 0 |
865,023 | 22 As to Article 5 of the Treaty, it must be borne in mind that the wording of that provision is so general that it cannot be applied independently where the situation under consideration is governed by a specific provision of the Treaty, such as the second paragraph of Article 40(3), as it is in the case at issue in the main proceedings (see judgment in Joined Cases C-78/90 to 83/90 Compagnie Commerciale de l' Ouest and Others [1992] ECR I-1847, at paragraph 19). Consequently, it is not necessary to give a ruling on the first question, in so far as it refers to Article 5 of the Treaty. | 29 IT SHOULD BE POINTED OUT THAT THE PREFERENTIAL TARIFF WAS APPLICABLE ONLY TO UNDERTAKINGS ENGAGED IN HOTHOUSE HORTICULTURE . IN THAT SECTOR, HEATING COSTS ACCOUNT FOR A LARGE PART OF PRODUCTION COSTS . IF, IN SUCH CIRCUMSTANCES, THE TARIFF APPLIED TO THOSE UNDERTAKINGS DISPLAYS A DOWNWARD TREND WHICH IS NOT REFLECTED BY THE TARIFFS APPLICABLE TO UNDERTAKINGS IN OTHER SECTORS, THAT IS PRIMA FACIE EVIDENCE FOR THE CONCLUSION THAT THE PREFERENTIAL TARIFF CONSTITUTES AID . | 0 |
865,024 | 27. However, for advantages to be capable of being categorised as aid within the meaning of Article 107(1) TFEU, they must, first, be granted directly or indirectly through State resources and, second, be imputable to the State ( Pearle and Others , paragraph 35 and the case-law cited). | 90
Consequently, point 4 of that notice states that it is in the European Union’s interest to grant favourable treatment to undertakings which cooperate with it. In addition, point 6 of that notice specifies that a decisive contribution to the opening of an investigation may justify the granting of immunity from fines to the undertaking applying for immunity. | 0 |
865,025 | 24. Ensuite, il y a lieu de rappeler que, en l’absence d’une telle définition, la portée de ladite notion, figurant à l’article 3 du règlement de base et incluant, en vertu de l’article 4, paragraphe 1, sous a) et b), du règlement d’application, tant les «installations nécessaires à la production de sucre» que les «installations [...] directement liée[s] à la production de sucre», doit être établie, selon une jurisprudence constante de la Cour, en considération du contexte général dans lequel elle est utilisée et conformément à son sens habituel en langage courant (voir, en ce sens, arrêts du 4 mai 2006, Massachusetts Institute of Technology, C‑431/04, Rec. p. I‑4089, point 17 et jurisprudence citée, ainsi que du 13 décembre 2012, BLV Wohn- und Gewerbebau, C‑395/11, point 25). Enfin, il y a lieu, pour l’interprétation d’une disposition du droit de l’Union, de tenir compte des objectifs poursuivis par la réglementation dont elle fait partie (voir, en ce sens, arrêt du 29 janvier 2009, Petrosian, C‑19/08, Rec. p. I‑495, point 34 et jurisprudence citée). | 39. In those circumstances, the Court finds that the Finnish Government has not proven that the spring hunting of golden-eye and tufted duck fulfils the condition that there be no other satisfactory solution, as referred to in Article 9(1)(c) of the Directive. | 0 |
865,026 | 49
Furthermore, according to settled case-law of the Court, the information provided in orders for reference not only enables the Court to give useful answers but also serves to ensure that the governments of the Member States and other interested persons are given an opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. It is for the Court to ensure that that opportunity is safeguarded, given that, under Article 23, only the orders for reference are notified to the interested parties, accompanied by a translation in the official language of each Member State, but excluding any case file that may be sent to the Court by the national court (see, inter alia, judgments in Holdijk and Others, 141/81 to 143/81, EU:C:1982:122, paragraph 6; Lehtonen and Castors Braine, C‑176/96, EU:C:2000:201, paragraph 23; and order in Adiamix, C‑368/12, EU:C:2013:257, paragraph 24). | 27. Nor can it be said that the principle of fiscal neutrality, which reflects the principle of equal treatment, or the principle of proportionality require that a single method of rounding up be applied for all those methods of calculation (see, to that effect, Koninklijke Ahold , paragraphs 37 and 41). | 0 |
865,027 | 29 The Commission is not compelled to prove that there have been losses but may simply adduce highly significant evidence to that effect. The reason for this mitigation of the burden of proof on the Commission lies in the division of powers between the Community and the Member States concerning the common agricultural policy (see, to that effect, Case C-48/91 Netherlands v Commission, cited above, paragraph 17). | 43. It follows from Annex III, No 1, that the characteristics of a project must be assessed, inter alia, in relation to its cumulative effects with other projects. Failure to take account of the cumulative effect of one project with other projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment (see, to that effect, judgment in Brussels Hoofdstedelijk Gewest and Others , EU:C:2011:154, paragraph 36). | 0 |
865,028 | 27. As a preliminary point, it must be recalled, that, according to settled case-law, in the absence of unifying or harmonising measures adopted by the Community, the Member States remain competent to determine the criteria for taxation of income and wealth with a view to eliminating double taxation by means inter alia of international agreements (see, in particular, Case C-307/97 Saint-Gobain ZN [1999] ECR I-6161, paragraph 57; Case C-290/04 FKP Scorpio Konzertproduktionen [2006] ECR I-9461, paragraph 54; and Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 52). | 59. Dans le cadre de cet examen, il appartient, notamment, auxdites autorités de déterminer si, dans le pays d’origine du demandeur, la peine d’emprisonnement prévue par une telle législation est appliquée en pratique. | 0 |
865,029 | 61
The Kingdom of Spain maintains that the General Court erred in law, in paragraphs 101 to 110 of the judgment under appeal, in its analysis of the compatibility of the aid with the internal market for the purpose of Article 107(3)(c) TFEU. The Kingdom of Spain submits that the General Court’s reasoning contains several errors which demonstrate that it did not carry out its judicial review in accordance with the case-law arising from the judgment of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 39). | 30 In such special circumstances, the transport is organized by the employer for purposes which are not other than those of the business. The personal benefit derived by employees from such transport appears to be of only secondary importance compared to the needs of the business. | 0 |
865,030 | 49 The rest of the case-law referred to by KCH is not decisive. In most of the cases referred to, the penalty is examined in the light of the principle of proportionality rather than the principle `nulla poena sine culpa' (cases cited above, Thyssen v Commission, paragraphs 18 to 22; Schumacher, paragraphs 25 to 31; Cereol Italia, paragraphs 13 to 27; National Farmers' Union and Others, paragraphs 49 to 55; and Molkereigenossenschaft Wiedergeltingen, paragraphs 33 to 45). As for the judgment in Estel v Commission, in paragraphs 38 to 43 of which the Court held that a steel company penalised by the Commission for having exceeded the production quota imposed on it had committed an error which was not excusable and that, accordingly, the Commission had not breached the principle `nulla poena sine culpa', that judgment was delivered in an area far removed from agricultural regulations and without the Court ruling explicitly on whether the penalty in question was of a criminal nature or not. | 59. As noted in paragraph 43 above, that derogation must be construed in such a way as to limit its scope to what is strictly necessary for safeguarding the general interests of the Member State concerned, which cannot be imperilled if powers of a public authority are exercised only occasionally, or indeed exceptionally, by nationals of other Member States (see judgments in Colegio de Oficiales de la Marina Mercante Española , EU:C:2003:515, paragraph 44; Anker and Others , C‑47/02, EU:C:2003:516, paragraph 63; and Commission v France , C‑89/07, EU:C:2008:154, paragraph 14). | 0 |
865,031 | 33. The Court has previously held that Article 41(1) of the Additional Protocol may be relied on by an undertaking established in Turkey which lawfully provides services in a Member State and by Turkish nationals who are lorry drivers employed by such an undertaking (see judgments in Abatay and Others , EU:C:2003:572, paragraphs 105 and 106, and Demirkan , EU:C:2013:583, paragraph 40). | 53. It is the Court’s settled case-law that this is particularly the case where the means chosen reflect a legitimate social-policy objective of the legislation is at issue, are appropriate to achieve that aim and are necessary in order to do so (see, inter alia, Seymour-Smith and Perez , EU:C:1999:60, paragraph 69 and the case-law cited, and Brachner , EU:C:2011:675, paragraph 70 and the case-law cited). | 0 |
865,032 | 80. As a preliminary point, it is appropriate to observe, first, that the purpose of Article 2 of the Directive is to define the types of signs of which a trade mark may consist (Case C-273/00 Sieckmann [2002] ECR I-11737, paragraph 43), irrespective of the goods or services for which protection might be sought (see to that effect Sieckmann , paragraphs 43 to 55, Libertel , paragraphs 22 to 42, and Case C-283/01 Shield Mark [2003] ECR I-0000, paragraphs 34 to 41). It provides that a trade mark may consist inter alia of " words" and " letters" , provided that they are capable of distinguishing the goods or services of one undertaking from those of other undertakings. | 35
On the other hand, if the referring court, in the specific assessment which it is to undertake, finds that the reduced VAT rate for pastry goods and cakes with an expiry date fixed so that the shelf life does not exceed 45 days does not have the effect of favouring the sale of such goods over the sale of pastry goods and cakes with an expiry date fixed in such a way that the shelf life exceeds 45 days, it would follow from this that those two categories of pastry goods and cakes are not similar goods in competition with each other (see, to that effect, judgment of 3 May 2001, Commission v France, C‑481/98, EU:C:2001:237, paragraph 27). In that situation, the principle of fiscal neutrality would not preclude the national provisions at issue in the main proceedings. | 0 |
865,033 | 59 It must be borne in mind here that, according to settled case-law, the extent of the obligation to state reasons depends on the nature of the measure in question and on the context in which it was adopted (see Case 327/85 Netherlands v Commission [1988] ECR 1065, paragraph 13, and Case C-54/91 Germany v Commission [1993] ECR I-3399, paragraph 10). | 81. According to those same recitals, the production of feta commenced in 1972 in Germany, in 1931 in France and in the 1930s in Denmark. | 0 |
865,034 | 27 The Court has consistently held (see judgments in Case 9/67 Colditz v Caisse d' Assurance Vieillesse des Travailleurs Salariés de Paris [1967] ECR 229, Case 24/75 Petroni v Office National des Pensions pour Travailleurs Salariés [1975] 1149, paragraph 13, and Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1119, paragraph 18) that the objective of Articles 48 to 51 of the Treaty would not be attained if, after exercising their right of free movement, migrant workers were to lose social security advantages guaranteed by the legislation of a single Member State. | 53 2 ) ATTENDU , ENFIN , QUANT AU POINT DE SAVOIR SI DES MESURES TELLES QUE CELLES ADOPTEES PAR LES PAYS-BAS SONT PROHIBEES COMME MESURES AYANT UN EFFET EQUIVALANT A CELUI D ' UNE RESTRICTION QUANTITATIVE , QUE LES DISPOSITIONS DU REGLEMENT NO 2142/70 N ' ENONCENT PAS EXPRESSEMENT UNE TELLE INTERDICTION EN CE QUI CONCERNE LES ECHANGES INTRACOMMUNAUTAIRES ; | 0 |
865,035 | 68
Nevertheless, in accordance with Article 19(1) of Directive 2006/54, it is for a female worker who considers herself wronged because the principle of equal treatment has not been applied to her to establish, before a court or any other competent authority, facts or evidence from which it may be presumed that there has been direct or indirect discrimination (see, to that effect, judgment of 21 July 2011, Kelly, C‑104/10, EU:C:2011:506, paragraph 29). | 23. Dans la mesure où la République hellénique cherche à mettre en cause la recevabilité du recours du fait que la Commission n’a pas précisé s’il incombait à cet État membre, en ce qui concerne les modalités de départ à la retraite, de supprimer les conditions moins avantageuses pour les hommes ou d’imposer des conditions plus défavorables aux femmes, il convient de rappeler que, selon une jurisprudence constante, la Commission ne saurait être tenue d’indiquer dans l’avis motivé les mesures qui permettraient d’éliminer le manquement reproché (arrêt du 11 juillet 1991, Commission/Portugal, C‑247/89, Rec. p. I‑3659, point 22). Il en va de même pour la requête introduite devant la Cour. | 0 |
865,036 | 23 On this point, it need only be observed that neither individual statements of position nor joint declarations of the Member States may be used for the purpose of interpreting a provision where, as in the present case, their content is not reflected in its wording and therefore has no legal significance (see, to that effect, Joined Cases C-197/94 and C-252/94 Bautiaa and Société Française Maritime v Directeur des Services Fiscaux [1996] ECR I-505, paragraph 51; Case C-292/89 R v Immigration Appeal Tribunal ex parte Antonissen [1991] ECR I-745, paragraph 18; and Case 143/83 Commission v Denmark [1985] ECR 427, paragraph 13). | 69THE COMMISSION CONTENDS THAT , ALTHOUGH THE IRISH MEASURES ARE BASED ON APPARENTLY OBJECTIVE FACTORS , SUCH AS SIZE AND POWER OF BOATS , THEY ARE IN FACT DISCRIMINATORY ON TWO GROUNDS .
| 0 |
865,037 | 43. It follows from the Court’s settled case-law that the obligations arising from Community directives are binding, inter alia, on bodies or entities which are subject to the authority or control of a public authority or the State (see, to that effect, Case 152/84 Marshall [1986] ECR 723, paragraph 49; Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraphs 30 and 31; Case C‑188/89 Foster and Others [1990] ECR I-3313, paragraph 18; order in Case C‑297/03 Sozialhilfeverband Rohrbach [2005] ECR I‑4305, paragraph 27). Consequently, the obligation to presume that medical devices which meet the harmonised standards and bear the CE marking comply with the requirements of Directive 93/42 extends to Venizelio‑Pananio in its capacity as a body governed by public law. | 38. Those types of injury are, first, detriment to the distinctive character of the mark, secondly, detriment to the repute of that mark and, thirdly, unfair advantage taken of the distinctive character or the repute of that mark (see, to that effect, Intel Corporation , paragraph 27). | 0 |
865,038 | 33 Thus, in contrast to the time-limit at issue in Case C-1/94 Cavarzere Produzioni Industriali and Others [1995] ECR I-2363, which was intended to ensure that operators in the sugar sector would have a period of four months in which to plan their activity, the overstepping of the date 1 August laid down in Article 3(4) and (5) of the basic regulation cannot be capable of rendering invalid Regulation No 1580/96 in so far as it fixed intervention prices after that date. | 34 Accordingly, where, as in the main proceedings, the sign is not used for the purposes of distinguishing goods or services, it is necessary to refer to the legal orders of the Member States to determine the extent and nature, if any, of the protection afforded to owners of trade marks who claim to be suffering damage as a result of use of that sign as a trade name or company name. | 0 |
865,039 | 23. First of all, it is settled case-law that the concept of " worker" , within the meaning of Article 48 of the Treaty, has a specific Community meaning and must not be interpreted narrowly (see, to that effect, inter alia, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 16, Case 197/86 Brown [1988] ECR 3205, paragraph 21, Case C-3/90 Bernini [1992] ECR I-1071, paragraph 14, and Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 13). | 19 In that connection, it must first be pointed out that the inclusion of such a clause in an invitation to tender may cause economic operators who produce or utilize pipes equivalent to pipes certified as complying with Irish standards to refrain from tendering . | 0 |
865,040 | 63. It follows that the main aim of the contested decision is, following the entry into force of the new European Union legislation concerning coordination of social security systems, to update also the legislation which has been extended to the Swiss Confederation by the EC-Switzerland Agreement on the Free Movement of Persons and thereby to retain the extension of social rights to citizens of the States concerned as already intended and given effect to by that agreement since 2002 (see, by analogy, United Kingdom v Council , paragraph 57). | 37. In this respect, it should be added that the deterrent nature and dissuasive purpose of the measures to be adopted, together with their independence of any particular dispute, mean that such actions may be brought even though the terms which it is sought to have prohibited have not been used in specific contracts (see Commission v Italy , paragraph 15). | 0 |
865,041 | 33 At paragraph 25 of that judgment the Court held that the entire system of reference quantities is based on the general principle, laid down in Article 7 of Regulation No 857/84 and in Article 5 of Commission Regulation (EEC) No 1371/84, that in the case of the transfer of part of a holding the reference quantity is to be granted to the transferee in proportion to the land transferred. | 17 IT IS CLEAR FROM THE FILE THAT THIS REQUIREMENT WAS NOT FULFILLED IN RESPECT OF THE OBLIGATION IN ISSUE . | 0 |
865,042 | 53. Articles 12 and 13 of Directive 2002/22 satisfy those criteria, given that they clearly state that any financing of the universal service obligations must be made on the basis of the calculation of the net cost, which must be interpreted as also including ‘reasonable profit’, equivalent to the rate of return on capital, and that that obligation is not qualified by any condition. Even though Directive 2002/22 allows the national regulatory authorities a certain degree of discretion when implementing those provisions, that does not alter the precise and unconditional nature of the obligation arising out of those provisions (see, by analogy, judgment in GMAC UK , C‑589/12, EU:C:2014:2131, paragraphs 29, 30 and 32). | 31. First, according to the first recital in the preamble thereto, the purpose of Directive 89/104 is to approximate national trade mark laws in order to remove any existing disparities which may impede the free movement of goods and the freedom to provide services and which may distort competition within the common market. | 0 |
865,043 | 96. Having held that the Kingdom of Spain failed, within the period prescribed in the supplementary letter of formal notice, to comply with the judgment in Commission v Spain , the Court may impose on that Member State the payment of a penalty payment if the failure to fulfil obligations continues up to the time of the Court’s examination of the facts (Case C-369/07 Commission v Greece , paragraph 59 and the case-law cited). | 59. As regards the imposition of a penalty payment, the Court has held that such a penalty is, in principle, justified only in so far as the failure to comply with an earlier judgment of the Court continues up to the time of the Court’s examination of the facts (see, to that effect, Commission v Italy , paragraphs 33, 45 and 46, and Commission v Germany , paragraph 40). | 1 |
865,044 | 35. As the Court has already held, that is a broad definition covering all forms of comparative advertising, so that, in order for there to be comparative advertising, it is sufficient for there to be a statement referring even by implication to a competitor or to the goods or services which he offers (Case C-112/99 Toshiba Europe [2001] ECR I-7945, paragraphs 30 and 31). | 39. Les principes d’égalité de traitement et de transparence signifient, notamment, que les soumissionnaires doivent se trouver sur un pied d’égalité aussi bien au moment où ils préparent leurs offres qu’au moment où celles-ci sont évaluées par le pouvoir adjudicateur (voir, notamment, arrêts du 18 octobre 2001, SIAC Construction, C‑19/00, Rec. p. I‑7725, point 34; du 16 décembre 2008, Michaniki, C‑213/07, Rec. p. I‑9999, point 45, et du 12 novembre 2009, Commission/Grèce, C‑199/07, Rec. p. I‑10669, point 37). | 0 |
865,045 | 26 Thus, in certain labour-intensive sectors, a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity. Such an entity is, therefore, capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task (Süzen, paragraph 21). Thus, an organised grouping of wage earners who are specifically and permanently assigned to a common task may, in the absence of other factors of production, amount to an economic entity (Hernández Vidal and Others, cited above, paragraph 26). | 26 In order for Directive 77/187 to be applicable, however, the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract (Case C-48/94 Rygaard [1995] ECR I-2745, paragraph 20). The term `entity' thus refers to an organised grouping of persons and of assets enabling an economic activity which pursues a specific objective to be exercised (Süzen, cited above, paragraph 13). | 1 |
865,046 | 25
In that connection, it must be observed that recital 20 of Directive 2001/29 provides, inter alia, that the provisions of that directive must apply, in principle, without prejudice to Directive 92/100, as amended by Directive 93/98, which was codified and repealed by Directive 2006/115, unless Directive 2001/29 provides otherwise (see, to that effect, judgment of 9 February 2012 in Luksan, C‑277/10, EU:C:2012:65, paragraph 43 and the case-law cited). | 43. It is apparent from recital 20 in the preamble that Directive 2001/29 is based on the principles and rules already laid down in the directives in force in this area, inter alia Directive 92/100 on rental right and lending right (now Directive 2006/115) and Directive 93/98 harmonising the term of protection of copyright (now Directive 2006/116). It is stated that Directive 2001/29 develops those principles and rules and places them in the context of the information society. Accordingly, the provisions of Directive 2001/29 should be without prejudice to the provisions of those two directives, unless otherwise provided in Directive 2001/29 (see, to this effect, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraphs 187 and 188). | 1 |
865,047 | 24 As stated in the fourth recital in its preamble, the objective of Regulation No 918/83 is, in accordance with the requirements of the Customs Union, to eliminate differences in the field of exemptions from customs duties. More specifically, the objective of Articles 45 to 49 is to simplify the clearance through customs of goods contained in the personal luggage of travellers coming from non-member countries (Case 158/80 Rewe v Hauptzollamt Kiel [1981] ECR 1805, paragraph 11), and thus to facilitate passenger traffic. | 58. Nevertheless, as Article 30 EC provides, the provisions of Article 28 EC do not preclude prohibitions or restrictions on imports, exports or goods in transit justified inter alia on grounds of protection of the health and life of humans. | 0 |
865,048 | 70. Lastly, it should be borne in mind that, since the right to freedom of movement is – as a fundamental principle of EU law – the general rule, the conditions laid down in Article 7(1)(b) of Directive 2004/38 must be construed narrowly (see, by analogy, Kamberaj , paragraph 86, and Chakroun , paragraph 43) and in compliance with the limits imposed by EU law and the principle of proportionality (see Baumbast and R , paragraph 91; Zhu and Chen , paragraph 32; and Commission v Belgium , paragraph 39). | 79 Other articles of the Treaty may not, however, be used as a legal basis in order to circumvent the express exclusion of harmonisation laid down in Article 129(4) of the Treaty. | 0 |
865,049 | 33. It also follows from the case-law that both higher education and university education constitute vocational training (see Case 24/86 Blaizot [1988] ECR 379, paragraphs 15 to 20, and Case 42/87 Commission v Belgium [1988] ECR 5445, paragraphs 7 and 8). | 18 IT SHOULD ALSO BE BORNE IN MIND THAT THERE ARE SIGNIFICANT VARIATIONS IN THAT REGARD AMONG THE MEMBER STATES AND THAT CERTAIN STUDIES ARE UNDERTAKEN IN UNIVERSITIES IN SOME MEMBER STATES BUT NOT IN OTHERS . THE EXCLUSION OF UNIVERSITY EDUCATION FROM THE DEFINITION OF THE TERM "VOCATIONAL TRAINING" WOULD THUS RESULT IN UNEQUAL APPLICATION OF THE TREATY IN DIFFERENT MEMBER STATES . | 1 |
865,050 | 54 It is for the national court to establish the existence of those two elements, evidence of which must be adduced in accordance with the rules of national law, provided that the effectiveness of Community law is not thereby undermined (see, to that effect, in particular, Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633, paragraphs 17 to 25 and 35 to 39; Case 222/82 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraphs 17 to 21; and Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Ministry of Agriculture, Fisheries and Food [1996] ECR I-389, paragraphs 49 to 51, and Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others v Minister van Volkshuisvesting [2000] ECR I-4475, paragraph 41). | 17. In that regard, it must be borne in mind that the right to a refund of charges levied in a Member State in breach of the rules of European Union law is the consequence and complement of the rights conferred on individuals by provisions of European Union law prohibiting such charges. The Member State is therefore required in principle to repay charges levied in breach of European Union law (see Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12; Joined Cases C‑441/98 and C‑442/98 Michaïlidis [2000] ECR I‑7145, paragraph 30; Case C‑309/06 Marks & Spencer [2008] ECR I‑2283, paragraph 35; and Case C‑264/08 Direct Parcel Distribution Belgium [2010] ECR I‑0000, paragraph 45). | 0 |
865,051 | 37. With reference to the single market and in order to permit the achievement of its objectives, Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (see Safir , paragraph 23, Commission v Denmark , paragraph 38, and the case‑law cited). | 71
However, the imposition of such a supplementary requirement to identify a particular category of undertakings, additional to the analytical method applicable to selectivity in tax matters that may be deduced from the Court’s settled case-law, which essentially involves ascertaining whether the exclusion of certain operators from the benefit of a tax advantage that arises from a measure derogating from an ordinary tax system constitutes discrimination with respect to those operators, cannot be inferred from the Court’s case-law and, in particular, from the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732). | 0 |
865,052 | 40. However, the Court has held, in relation to expenses, such as business expenses which are directly linked to an activity which has generated taxable income in a Member State, that residents and non-residents of that State are in a comparable situation, with the result that legislation of that State which denies non-residents, in matters of taxation, the right to deduct such expenses, while, on the other hand, allowing residents to do so, risks operating mainly to the detriment of nationals of other Member States and therefore constitutes indirect discrimination on grounds of nationality (see Gerritse , paragraphs 27 and 28; Case C‑346/04 Conijn [2006] ECR I‑6137, paragraph 20; Case C‑290/04 FKP Scorpio Konzertproduktionen [2006] ECR I‑9461, paragraph 49; Case C‑345/04 Centro Equestre da Lezíria Grande [2007] ECR I‑1425, paragraph 23; Case C‑11/07 Eckelkamp and Others [2008] ECR I‑6845, paragraph 50; and Case C‑43/07 Arens-Sikken [2008] ECR I‑6887, paragraph 44). | 54. Having found that there was no similarity between the earlier mark and the mark applied for, the Court of First Instance correctly concluded that there was no likelihood of confusion, whatever the reputation of the earlier mark and regardless of the degree of identity or similarity of the goods or services concerned. | 0 |
865,053 | 50. Last, with regard to the Italian Republic’s obligation to make the amount corresponding to the established entitlements available to the Commission, it must be noted that, according to settled case-law, although an error committed by the customs authorities of a Member State leads to the non-recovery of the Union’s own resources, such an error does not affect that Member State’s obligation to pay the entitlements which have been established and default interest (see, to that effect, Case C-392/02 Commission v Denmark , paragraph 63, and Case C-275/07 Commission v Italy [2009] ECR I‑2005, paragraph 100). | 84. It must be stated, first, that the measures prescribed by Articles 5 and 6 of Regulation No 261/2004 are in themselves capable of immediately redressing some of the damage suffered by passengers in the event of cancellation of, or a long delay to, a flight and therefore enable a high level of passenger protection, sought by the regulation, to be ensured. | 0 |
865,054 | 53. According to case-law, the essential function of a trade mark is to guarantee the identity of the origin of the marked goods or service to the consumer or end-user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin (see, in particular, Case C‑299/99 Philips [2002] ECR I‑5475, paragraph 30, and Case C‑37/03 P BioID v OHIM [2005] ECR I‑7975, paragraph 27). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
865,055 | 56. Where the Commission has adduced sufficient evidence to show that the breach of obligations has persisted, it is for the Member State concerned to challenge in substance and in detail the information produced and its consequences (see, to this effect, Case 272/86 Commission v Greece [1988] ECR 4875, paragraph 21, and Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraphs 84 to 87). | 62
Moreover, that special rule of jurisdiction must be interpreted in the light, first, of recital 11 of Regulation No 44/2001, according to which the rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different connecting factor (see, inter alia, judgments of 11 October 2007 in Freeport, C‑98/06, EU:C:2007:595, paragraph 36, and of 12 July 2012 in Solvay, C‑616/10, EU:C:2012:445, paragraph 20). | 0 |
865,056 | 39. Moreover, it is settled case-law that the right to deduct can be exercised only in respect of taxes actually due, that is to say, the taxes corresponding to a transaction subject to VAT or paid in so far as they were due (Case C-342/87 Genius Holding [1989] ECR 4227, paragraph 13, and Case C-454/98 Schmeink & Cofreth and Strobel [2000] ECR I‑6973, paragraph 53). | 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 |
865,057 | It is settled case-law of the Court that that obligation to state reasons has the dual purpose of enabling interested parties
to know the purported justification for the measure taken so as to be able to defend their rights and of enabling the Courts
of the European Union to exercise their jurisdiction to review the legality of the decision (judgments in Helena Rubinstein and L’Oréal v OHIM, C‑100/11 P, EU:C:2012:285, paragraph 111, and Storck v OHIM, C‑96/11 P, EU:C:2012:537, paragraph 86). | 39. Preventive monitoring of this kind would thus require active observation of all electronic communications conducted on the network of the ISP concerned and, consequently, would encompass all information to be transmitted and all customers using that network. | 0 |
865,058 | 25. The Court subsequently found that provisions concerning, in particular, certain marketing methods were selling arrangements within the meaning of Keck and Mithouard (see, in particular, Case C-292/92 Hünermund and Others [1993] ECR I-6787, paragraphs 21 and 22; Joined Cases C-401/92 and C‑402/92 Tankstation ’t Heukske and Boermans [1994] ECR I-2199, paragraphs 12 to 14, and TK-Heimdienst , paragraph 24). | 24. It must be observed at the outset that the exemption from anti-dumping duties may be made only under certain conditions, in cases specifically provided for, and thus constitutes an exception to the normal regime for anti-dumping duties. The provisions which provide for such an exemption are, therefore, to be interpreted strictly (see, by analogy, Söhl & Söhlke , C‑48/98, EU:C:1999:548, paragraph 52, and Isaac International , C‑371/09, EU:C:2010:458, paragraph 42). | 0 |
865,059 | 38. It should be recalled, to begin with, that Articles 28 and 28a of Regulation No 1408/71 lay down a ‘conflict rule’ enabling the determination, in relation to pensioners residing in a Member State other than the State responsible for payment of the pension, of the institution responsible for provision of the benefits mentioned in those provisions and the legislation applicable (see Case 69/79 Jordens-Vosters [1980] ECR 75, paragraph 12; Case C‑389/99 Rundgren [2001] ECR I‑3731, paragraphs 43 and 44; and van der Duin and ANOZ Zorgverzekeringen , paragraph 39). | 21. In that regard, the Court has held that there is a single supply in particular in cases where one or more elements are to be regarded as constituting the principal supply, whilst one or more elements are to be regarded, by contrast, as ancillary supplies which share the tax treatment of the principal supply ( CPP , cited above, paragraph 30, and Case C‑34/99 Primback [2001] ECR I‑3833, paragraph 45). | 0 |
865,060 | 39. It is clear from the second paragraph of Article 234 EC that it is for the national court to decide at what stage in the proceedings it is appropriate for that court to refer a question to the Court of Justice for a preliminary ruling (see Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others [1981] ECR 735, paragraph 5, and Case C-236/98 JämO [2000] ECR I-2189, paragraph 30). | 30. La Cour a également précisé que, dès l’acquittement d’une taxe d’immatriculation dans un État membre, le montant de cette taxe s’incorpore dans la valeur du véhicule. Ainsi, lorsqu’un véhicule immatriculé dans l’État membre concerné est, par la suite, vendu en tant que véhicule d’occasion dans ce même État membre, sa valeur marchande comprend le montant résiduel de la taxe d’immatriculation et sera égale à un pourcentage, déterminé par la dépréciation de ce véhicule, de sa valeur initiale (arrêt du 5 octobre 2006, Nádasdi et Németh, C‑290/05 et C‑333/05, Rec. p. I‑10115, point 54). | 0 |
865,061 | 37. Next, it must be recalled that, according to the case-law of the Court, since leasing services do not provide for a transfer to the lessee of ownership in the leased item, they must be categorised, in principle, as a supply of services (see, to that effect, Case C-118/11 Eon Aset Menidjmunt [2012] ECR, paragraph 33). It is also clear from that case-law that such services may nevertheless be treated as the acquisition of capital goods in certain circumstances. Such is the case in particular where the lessee possesses all the essential powers attaching to ownership of the item which is the subject of the leasing agreement, in particular, if substantially all the rewards and risks incidental to legal ownership of that vehicle are transferred to the lessee and that the present value of the amount of the lease payments is practically identical to the market value of the property (see, Eon Aset Menidjmunt , paragraph 40). It is for the referring court to determine, in the light of the circumstances of the case, whether those criteria are fulfilled. | 24. In that regard, it should be stated that Article 15 contains no definition of the concept of ‘chartering’. According to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wo rding, but also the context in which it occurs and the objective pursued by the rules of which it is part (see, inter alia, Case C-301/98 KVS International [2000] ECR I-3583, paragraph 21, and Case C-53/05 Commission v Portugal [2006] ECR I-6215, paragraph 20). | 0 |
865,062 | 68. A corollary of the principle of respect for the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence (see, to that effect, Case T-30/91 Solvay v Commission [1995] ECR II-1775, paragraph 81, and Case C-199/99 P Corus UK v Commission [2003] ECR I-0000, paragraphs 125 to 128). Those documents include both incriminating evidence and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (see Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraphs 9 and 11; Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I-4235, paragraph 75; and Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 315). | 18. According to settled case-law, the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard (see, in particular, Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31, and Case C-224/02 Pusa [2004] ECR I-5763, paragraph 16). | 0 |
865,063 | 51. The Court has held that the second subparagraph of Article 28(1) of Directive 95/46 must be interpreted as meaning that the supervisory authorities responsible for supervising the processing of personal data must enjoy an independence allowing them to perform their duties free from external influence. That independence precludes inter alia any directions or any other external influence in whatever form, whether direct or indirect, which may have an effect on their decisions and which could call into question the performance by those authorities of their task of striking a fair balance between the protection of the right to private life and the free movement of personal data (see, to that effect, Commission v Germany EU:C:2010:125, paragraph 30, and Commission v Austria EU:C:2012:631, paragraphs 41 and 43). | 27 Plain paper photocopiers produced by Mita are sold through Mita Europe, which handles customers' orders, sends them the invoices and receives the relevant payments . However, the price paid by purchasers to Mita Europe is not the same as the price invoiced by Mita Japan to Mita Europe . | 0 |
865,064 | 23 The Commission, however, has stated, referring to its observations in Edis, cited above, that the provision at issue prompted the Corte Suprema di Cassazione to depart from its earlier case-law in that hitherto it had restricted the application of time-limits such as the one at issue to cases of errors in the calculation of taxes. By making repayment of the sums paid subject to the three-year time-limit laid down in Article 29 of Decree-Law No 428/1990 rather than the 10-year limitation period under the ordinary law, that provision, as interpreted by the Corte Suprema di Cassazione, specifically curtailed the opportunity for the persons concerned to bring proceedings to secure repayment of charges levied in breach of Community law, thereby disregarding the judgments in Case 309/85 Barra v Belgium and Another [1988] ECR 355 and Deville, cited above. | 17 IL Y A LIEU, PAR CONSEQUENT, DE REPONDRE A LA QUESTION POSEE QUE LE REGLEMENT N* 857/84 DU CONSEIL, DU 31 MARS 1984, TEL QUE COMPLETE PAR LE REGLEMENT N* 1371/84 DE LA COMMISSION, DU 16 MAI 1984, EST INVALIDE DANS LA MESURE OU IL NE PREVOIT PAS L' ATTRIBUTION D' UNE QUANTITE DE REFERENCE AUX PRODUCTEURS N' AYANT PAS, EN EXECUTION D' UN ENGAGEMENT PRIS AU TITRE DU REGLEMENT N* 1078/77 DU CONSEIL, DU 17 MAI 1977, LIVRE DE LAIT PENDANT L' ANNEE DE REFERENCE RETENUE PAR L' ETAT MEMBRE CONCERNE . | 0 |
865,065 | 47. Furthermore, the derogations provided for in Articles 296 EC and 297 EC must, in accordance with settled case-law in respect of derogations from fundamental freedoms (see, inter alia, Case C‑503/03 Commission v Spain [2006] ECR I‑1097, paragraph 45; Case C‑490/04 Commission v Germany [2007] ECR I‑6095, paragraph 86; and Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraph 50), be interpreted strictly. | 18 IT SHOULD ALSO BE BORNE IN MIND THAT THERE ARE SIGNIFICANT VARIATIONS IN THAT REGARD AMONG THE MEMBER STATES AND THAT CERTAIN STUDIES ARE UNDERTAKEN IN UNIVERSITIES IN SOME MEMBER STATES BUT NOT IN OTHERS . THE EXCLUSION OF UNIVERSITY EDUCATION FROM THE DEFINITION OF THE TERM "VOCATIONAL TRAINING" WOULD THUS RESULT IN UNEQUAL APPLICATION OF THE TREATY IN DIFFERENT MEMBER STATES . | 0 |
865,066 | 28. On that point, the Court has consistently held that, if the wording of secondary Community law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the EC Treaty rather than to the interpretation which leads to its being incompatible with the Treaty (see Case 218/82 Commission v Council [1983] ECR 4063, paragraph 15, and Case C‑135/93 Spain v Commission [1995] ECR I‑1651, paragraph 37). Member States must not only interpret their national law in a manner consistent with Community law but also make sure they do not rely on an interpretation of wording of secondary legislation which would be in conflict with the fundamental rights protected by the Community legal order or with the other general principles of Community law (Case C‑101/01 Lindqvist [2003] ECR I‑12971, paragraph 87). | 55
In the light of the foregoing, it must be found that the complaint alleging an infringement of the provisions of Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50 is admissible for the period from 2007 to 2014 inclusive. | 0 |
865,067 | 59
The Court has already held that the need to ensure the effective collection of a tax may constitute an overriding reason in the public interest capable of justifying a restriction on the freedom to provide services (judgments of 18 October 2012 in X, C‑498/10, EU:C:2012:635, paragraph 39, and 19 June 2014 in Strojírny Prostějov and ACO Industries Tábor, C‑53/13 and C‑80/13, EU:C:2014:2011, paragraph 46). It has also observed that the imposition of penalties, including criminal penalties, may be considered to be necessary in order to ensure compliance with national rules, subject, however, to the condition that the nature and amount of the penalty imposed is in each individual case proportionate to the gravity of the infringement which it is designed to penalise (judgment of 3 December 2014 in De Clercq and Others, C‑315/13, EU:C:2014:2408, paragraph 73 and the case-law cited). | 41. Il importe, d’emblée, de rappeler que, en vertu d’une jurisprudence constante, en l’absence de mesures d’unification ou d’harmonisation adoptées par l’Union, les États membres demeurent compétents pour déterminer les critères d’imposition des revenus et de la fortune en vue d’éliminer, le cas échéant par voie conventionnelle, les doubles impositions. Dans ce contexte, les États membres sont libres, dans le cadre de conventions bilatérales tendant à éviter les doubles impositions, de fixer les facteurs de rattachement aux fins de la répartition de la compétence fiscale (voir, notamment, arrêts de Groot, précité, point 93; du 16 octobre 2008, Renneberg, C-527/06, Rec. p. I‑7735, point 48, et du 28 février 2013, Beker, C‑168/11, point 32). | 0 |
865,068 | 16. As a preliminary point, it must be observed that, according to established case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case pending before it, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, to that effect, inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59; Case C‑28/95 Leur-Bloem [1997] ECR I‑4161, paragraph 24; Case C‑306/99 BIAO [2003] ECR I‑1, paragraph 88; and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 16). | 31 Although the wording of those provisions does not provide an express answer to that question, there is nevertheless a basis in Community law for the view that the rights guaranteed to migrant workers do not necessarily depend on the actual or continuing existence of an employment relationship . | 0 |
865,069 | 28
Lastly, the same may also be true in the case of importers associated with exporters of the product on which anti-dumping duties have been imposed, particularly where the export price has been calculated on the basis of those importers’ resale prices on the EU market and where the anti-dumping duty itself has been calculated on the basis of those resale prices (judgments in Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, EU:C:1990:295, paragraphs 19 and 20, and TMK Europe, C‑143/14, EU:C:2015:236, paragraph 21). | 42. De surcroît, il suffit de rappeler, à cet égard, qu’il est de jurisprudence constante qu’un État membre ne saurait exciper de dispositions, pratiques ou situations de son ordre juridique interne pour justifier l’inobservation des obligations résultant du droit communautaire (voir arrêts du 18 juillet 2007, Commission/Allemagne, C‑503/04, Rec. p. I‑6153, point 38 et jurisprudence citée, ainsi que du 10 janvier 2008, Commission/Portugal, C‑70/06, non encore publié au Recueil, point 22). | 0 |
865,070 | 32
It should be recalled in that context, in the first place, that the right to a refund of taxes levied by a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law prohibiting such taxes, as interpreted by the Court. The Member States are therefore required in principle to repay charges levied in breach of EU law, together with interest (see, to that effect, judgments of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 45, and 6 October 2015 in Târșia, C‑69/14, EU:C:2015:662, paragraphs 24 and 25). | 55 In addition, it indicated how it was possible for the unlawful conduct of the Danish tenderers to have led to an erroneous assessment of the market by the Community authorities likely to result in the purchase of excessive quantities of beef and veal, possibly at higher prices. In so doing, it established the probability that harm was caused to the Community budget. The Commission cannot be required to do more than that, since it cannot carry out the systematic checks and since analysis of the current state of a given market depends on information gathered by the Member States (see Case C-48/91 Netherlands v Commission, cited above, paragraph 17). | 0 |
865,071 | 67. In paragraph 184 of the judgment under appeal, the General Court rightly pointed out that where, following the annulment of a decision penalising undertakings which have infringed Article 81(1) EC because of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission is to adopt a fresh decision, with substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 83 to 111). | 57. However, those two exceptions were justified solely by the particularities of the agreements that led to their application. | 0 |
865,072 | 19 In the "Terminals" judgment (Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 51), the Court recognized that a system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators. The Court went on to conclude that, in order to maintain effective competition and to ensure transparency, responsibility for drawing up technical specifications, monitoring their application and granting type-approval should be entrusted to a body independent of public and private undertakings offering competing goods or services in the telecommunications sector. | 47. By Question 2(a), the national court asks essentially whether the fact that a Member State has notified the Commission of its wish to maintain the special procedure for collecting tax on manufactured tobacco after the expiry of the period prescribed in Article 27(5) of the Sixth Directive, as extended by the Ninth Directive, means that the procedure for charging tax may not be applied even after the date of its notification. | 0 |
865,073 | 50. In that regard, it must be recalled, in the first place, that it is clear from the Court’s well-established case-law that the concept of ‘worker’ in EU law extends to a person who serves a traineeship or periods of apprenticeship in an occupation that may be regarded as practical preparation related to the actual pursuit of the occupation in question, provided that the periods are served under the conditions of genuine and effective activity as an employed person, for and under the direction of an employer. The Court has stated that that conclusion cannot be invalidated by the fact that the productivity of the person concerned is low, that he does not carry out full duties and that, accordingly, he works only a small number of hours per week and thus receives limited remuneration (see, to that effect, inter alia, judgments in Lawrie-Blum , 66/85, EU:C:1986:284, paragraphs 19 to 21; Bernini , C‑3/90, EU:C:1992:89, paragraphs 15 and 16; Kurz , C‑188/00, EU:C:2002:694, paragraphs 33 and 34, and Kranemann , C‑109/04, EU:C:2005:187, paragraph 13). | 21 THE FACT THAT TRAINEE TEACHERS GIVE LESSONS FOR ONLY A FEW HOURS A WEEK AND ARE PAID REMUNERATION BELOW THE STARTING SALARY OF A QUALIFIED TEACHER DOES NOT PREVENT THEM FROM BEING REGARDED AS WORKERS . IN ITS JUDGMENT IN LEVIN , CITED ABOVE , THE COURT HELD THAT THE EXPRESSIONS ' WORKER ' AND ' ACTIVITY AS AN EMPLOYED PERSON ' MUST BE UNDERSTOOD AS INCLUDING PERSONS WHO , BECAUSE THEY ARE NOT EMPLOYED FULL TIME , RECEIVE PAY LOWER THAN THAT FOR FULL-TIME EMPLOYMENT , PROVIDED THAT THE ACTIVITIES PERFORMED ARE EFFECTIVE AND GENUINE . THE LATTER REQUIREMENT IS NOT CALLED INTO QUESTION IN THIS CASE .
| 1 |
865,074 | 38. First of all, according to settled case-law, the classification as ‘aid’ within the meaning of Article 87(1) EC requires that all the conditions set out in that provision are fulfilled (Case C-142/87 Belgium v Commission [1990] ECR I-959 (‘ Tubemeuse ’), paragraph 25; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I-4777, paragraph 125; and Case C-206/06 Essent Netwerk Noord and Others [2008] ECR I-5497, paragraph 63). | 52
Where a difference in treatment between two comparable situations is found, the principle of equal treatment is not infringed in so far as that difference is duly justified (see, to that effect, judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 46). | 0 |
865,075 | 44 That interpretation is also in keeping with that placed on Article 900(1)(o) by the Court in Söhl & Söhlke. In paragraph 86 of that judgment, the Court held in essence that that provision, which in all language versions except German refers precisely to the same tariff treatments as Article 890 of the implementing regulation, namely, Community treatment and preferential tariff treatment, applies only to cases in which the goods would have been eligible for Community treatment or preferential tariff treatment, but not to cases in which the goods would have been eligible for other tariff measures. | 17 According to the case-law of the Court (see, in particular, Case 8/81 Becker v Finanzamt Muenster-Innenstadt [1982] ECR 53), where the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by individuals as against any national provision which is incompatible with the directive. | 0 |
865,076 | 52. It is settled case-law that Article 12 of Regulation No 1612/68 requires only that the child has lived with his or her parents or either one of them in a Member State while at least one of them resided there as a worker (Case 197/86 Brown [1988] ECR 3205, paragraph 30, and Gaal , paragraph 27). | 203 By that reasoning, it rejected the argument that the duration of the judicial proceedings leading to the annulment of the Commission's first decision could be attributed to that institution simply because the illegality leading to the annulment was itself attributable to it. | 0 |
865,077 | 56. The Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation ( Halifax and Others , paragraph 77). | 72. Such an obligation makes it possible, in accordance with the objective of consumer protection pursued by the Directive, for the persons to whom an advertisement of that kind is addressed to be in a position to satisfy themselves that they have been correctly informed with regard to the purchases of basic consumables which they are prompted to make. | 0 |
865,078 | 48. Furthermore, it should be recalled that, according to the case-law of the Court, the explanatory notes drawn up, as regards the CN, by the Commission and, as regards the HS, by the World Customs Organisation 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-35/93 Develop Dr. Eisbein [1994] ECR I‑2655, paragraph 21, and Case C-400/05 B.A.S. Trucks [2007] ECR I‑311, paragraph 28). The content of those notes must therefore be in accordance with the provisions of the CN and may not alter their meaning (Case C-280/97 ROSE Elektrotechnik [1999] ECR I‑689, paragraph 23; Case C-495/03 Intermodal Transports [2005] ECR I‑8151, paragraph 48; and Case C‑445/04 Possehl Erzkontor [2005] ECR I‑10721, paragraph 20). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
865,079 | 163
In that regard, according to the case-law, Article 63 TFEU requires a Member State which has a system for preventing economic double taxation as regards dividends paid to residents by other resident companies to accord equivalent treatment to dividends paid to residents by non-resident companies (see judgments of 10 February 2011, Haribo Lakritzen Hans Riegel and Österreichische Salinen, C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 60, and 13 November 2012, Test Claimants in the FII Group Litigation, C‑35/11, EU:C:2012:707, paragraph 38). | 235. As the Advocate General has observed in point 93 of her Opinion, a biological species is the totality of all individual beings which form a reproducing community. | 0 |
865,080 | 41
However, the fact that a subsidiary does not comply with an instruction given by its parent company is not sufficient, by itself, to establish the absence of actual exercise of decisive influence by the parent over the subsidiary, given that the Court of Justice has already stated that it is not necessary for the subsidiary to carry out all the parent company’s instructions to demonstrate decisive influence, as long as the failure to carry out those instructions is not the norm (see, to that effect, judgment of 24 June 2015 in Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraphs 96 and 97). | 96. In so far as Del Monte claims that all the evidence relating to its exchanges with Weichert shows that the latter’s conduct was at odds with Del Monte’s expectations, first, it should be noted, as the Advocate General observed at points 101, 103 and 104 of her Opinion, that it is not necessary for the subsidiary to carry out all the parent company’s instructions to demonstrate decisive influence, as long as the failure to carry out instructions is not the norm. | 1 |
865,081 | 42 The reasons for the requirement of entry on the Register being purely of an administrative nature, such considerations cannot justify derogation by a Member State from the rules of Community law, especially where the derogation in question amounts to preventing or restricting the exercise of one of the fundamental freedoms of Community law (see, in particular, Case C-18/95 Terhoeve v Inspecteur van de Belastingdienst Particulieren/Ondernemingen Buitenland [1999] ECR I-345, paragraph 45, and Arblade, cited above, paragraph 37). | 27 Additional evidence may thus be required where there is suspicion or proof that abuses have been committed. | 0 |
865,082 | 36. Freedom of establishment, which Article 43 EC grants to Community nationals and which includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 48 EC, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Community, the right to exercise their activity in the Member State concerned through a subsidiary, branch or agency (see, inter alia, Case C-307/97 Saint‑Gobain ZN [1999] ECR I-6161, paragraph 35; Marks & Spencer , paragraph 30; and Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 41). | 30. Freedom of establishment, which Article 43 EC grants to Community nationals and which includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 48 EC, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Community, the right to exercise their activity in the Member State concerned through a subsidiary, a branch or an agency (see, in particular, Case C-307/97 Saint Gobain ZN [1999] ECR I-6161, paragraph 35). | 1 |
865,083 | 72. In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes such assurances (see Case C‑537/08 P Kahla Thüringen Porzellan v Commission [2010] ECR I‑0000, paragraph 63). However, a person may not plead breach of that principle unless he has been given precise assurances by the administration (see Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 147, and judgment of 25 October 2007 in Case C‑167/06 P Komninou and Others v Commission , paragraph 63). | 16 Whilst it is true that the directive contains no provisions expressly envisaging the circumstances described in the order for reference, it cannot be inferred that it does not apply to the claims of employees residing and employed, or having been employed, in a Member State other than that in which their employer is established. | 0 |
865,084 | 49. The condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Member State merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real step to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled those difficulties to be overcome (see judgments in Commission v Greece , C‑415/03, EU:C:2005:287, paragraph 43; Commission v Poland , C‑331/09, EU:C:2011:250, paragraph 70; Commission v Italy , C‑305/09, EU:C:2011:274, paragraph 33, and Commission v Italy , C‑243/10, EU:C:2012:182, paragraph 41). | 32 Therefore, the answer to the question referred to the Court for a preliminary ruling must be that Article 19 of the Sixth Directive is to be interpreted as meaning that the following must be excluded from the denominator of the fraction used to calculate the deductible proportions:
- share dividends paid by its subsidiaries to a holding company which is a taxable person in respect of other activities and which supplies management services to those subsidiaries, and
- interest paid by the subsidiaries to the holding company on loans it has made to them, where the loan transactions do not constitute, for the purposes of Article 4(2) of the Sixth Directive, an economic activity of the holding company. | 0 |
865,085 | 34. Furthermore, it is settled case-law that the determination of the existence of harm to the Community industry requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error in the appraisal of those fac ts or a misuse of powers (see Ikea Wholesale , paragraph 41, and the case-law cited). That is, particularly, the case as regards the determination of the factors injuring the Community industry in an anti-subsidy proceeding. | 49. In the main proceedings, it is clear both from the contents of the Court’s file and from the observations submitted to the Court that there appears to be no tangible evidence either to support the conclusion that the goods concerned were transferred out of the territory of the Member State of supply or to exclude the possibility of manipulation and fraud. It is nevertheless necessary, in order to ensure the correct and straightforward application of the exemptions, that the national authorities lay down the conditions under which they exempt intra-Community supplies of goods. | 0 |
865,086 | 36. In addition, the sixth recital in the preamble to Directive 85/337 states that the assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question (see WWF and Others , paragraph 61; Linster , paragraph 53; and Boxus and Others , paragraph 42). | 52. The Court explained that, to that end, account must be taken of, inter alia, the duration, regularity, conditions and reasons for the stay in the territory of a Member State and for the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State (judgments in A , EU:C:2009:225, paragraphs 39 and 44, and Mercredi , EU:C:2010:829, paragraphs 48, 49 and 56). The Court also held that the intention of the parents or one of them to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in that Member State, may constitute an indicator of the transfer of the child’s habitual residence (see the judgments in A , EU:C:2009:225, paragraphs 40 and 44, and Mercredi , EU:C:2010:829, paragraph 50). | 0 |
865,087 | 34
It must also be borne in mind that the duty to act diligently which is inherent in the principle of sound administration and applies generally to the actions of the EU administration in its relations with the public requires that that administration act with care and caution (see, to that effect, judgment of 16 December 2008, Masdar (UK) v Commission, C‑47/07 P, EU:C:2008:726, paragraphs 92 and 93). | 93. … the second paragraph of Article 288 EC founds an obligation for the Community to make good any damage caused by its institutions, without restricting the rules governing the non-contractual liability of the Community solely to unlawful conduct on the part of those institutions …
…
95. In order to determine whether those principles apply, it must therefore be examined whether the conditions governing the action de in rem verso or the action based on negotiorum gestio are satisfied in this case.
96. In that regard it is clear … that in the factual and legal context of this case actions based on unjust enrichment or negotiorum gestio cannot succeed.
97. According to the general principles common to the laws of the Member States, those actions cannot succeed where the justification for the advantage gained by the enriched party or the principal derives from a contract or legal obligation. Further, in accordance with t hose same principles, it is generally possible to plead such actions only in the alternative, that is to say, where the injured party has no other action available to obtain what it is owed.
98. It is common ground in this case that there is a contractual relationship between the Commission and Helmico, on the one hand, and between Helmico and [Masdar], on the other. The direct harm alleged corresponds to the payment owed to [Masdar] by Helmico under the subcontracts concluded between those two parties, which contain [a choice of jurisdiction] clause in that respect, designating the courts of England and Wales as having jurisdiction over any contractual disputes. It is therefore unquestionably Helmico’s responsibility to pay for the work carried out by [Masdar] and to incur any liability arising from non-payment, as is shown, moreover, by the legal proceedings brought by [Masdar] against Helmico to that effect before the High Court of Justice, which are currently pending but stayed. The possible insolvency of Helmico is no reason for the Commission to take on that liability, since [Masdar] cannot have two sources in respect of the same entitlement to payment. According to the documents in the file, and as is not disputed by the parties, those proceedings before the High Court of Justice relate to the payment of the services at issue in the present proceedings.
99. It follows that any enrichment of the Commission or impoverishment of [Masdar], as it arose from the contractual framework in place, cannot be described as being without cause.
100. … The conditions governing the civil action based on negotiorum gestio are manifestly not satisfied for the following reasons.
101. Performance by [Masdar] of its contractual obligations with regard to Helmico cannot reasonably be described as benevolent intervention in another’s affairs which it is imperative to manage, as required by the action in question … Finally, [Masdar]’s argument is also in conflict with the principles of negotiorum gestio as regards the principal’s awareness of the manager’s action. The manager’s action is generally carried out without the knowledge of the principal, or at least without the latter being aware of the need to act immediately. Yet [Masdar] itself submits that its choice to continue with the work in October 1998 was induced by the Commission.
102. In addition it is not without relevance that, according to case-law, it is the economic operators themselves who must bear the economic risks inherent in their operations, taking account of the circumstances of each case …
103. It has not been established that [Masdar] suffered unusual and special damage going beyond the limits of the economic and commercial risks inherent in its operations. In all contractual relationships there is a certain risk that a party will not perform the contract satisfactorily or will even become insolvent. It is for the contracting parties to mitigate that risk in a suitable manner in the contract itself. [Masdar] was not unaware that Helmico was not fulfilling its contractual obligations, but knowingly chose to continue to fulfil its own obligations rather than to take formal action. In so doing it ran a commercial risk which could be described as normal …’
34. Subsequently, the Court of First Instance also rejected Masdar’s other pleas. Masdar’s arguments alleging breach of the principle of the protection of legitimate expectations were rejected by the Court of First Instance on the following grounds:
‘119. … the right to rely on the principle of the protection of legitimate expectations … extends to any individual who is in a situation in which it is clear that the Community administration has, by giving him precise assurances, led him to entertain justified expectations. Irrespective of the manner in which it was communicated, precise, unconditional and consistent information coming from authorised and reliable sources amount to such assurances ... It is also established in the case-law that the principle of the protection of legitimate expectations constitutes a rule of law conferring rights on individuals ... The Community may thus incur liability for infringement of that principle. Nevertheless economic operators must bear the economic risks inherent in their operations having regard to the circumstances specific to each case ...
120. According to the case-file, the expectations cited by [Masdar] relate to the payment by the Commission for services provided under contract to Helmico. It is clear in this case that the written documents emanating from the Commission before the Court cannot in any way be interpreted as precise assurances that the Commission undertook to pay for [Masdar]’s services which could give rise to justified expectations on its part.’
35. At paragraphs 121 to 129 of the judgment under appeal, the Court of First Instance substantiated the finding made in paragraph 120 of that judgment with a detailed examination of the evidence before it.
36. With regard to the plea alleging that the Commission failed to exercise care, the Court of First Instance found as follows:
‘140 It is clear from [Masdar]’s pleadings that the conduct of the Commission complained of is the suspension of payments to Helmico. The Commission’s conduct is unlawful, according to [Masdar], because it did not exercise reasonable care to ensure that that suspension did not cause harm to third parties and, if necessary, to indemnify those third parties for the damage thereby suffered.
141 …[F]irst of all … [Masdar] merely states that such a duty of care exists, without adducing the slightest proof or putting forward legal arguments in support of its claim or specifying the origin and scope of that duty. The Court takes the view that a very vague reference to the general principles of non-contractual liability for fault under civil law systems and the principle of tortious liability for negligence under Anglo-Saxon systems does not show that the Commission is under an obligation to have regard to the interests of third parties when it makes a decision regarding the suspension of payments in the course of its contractual relationships … The Court also considers … that [Masdar] has not shown that there is a causal link between breach of the alleged obligation and the damage pleaded …’
Forms of order sought
37. By its appeal, Masdar claims that the Court should:
– set aside the judgment under appeal;
– order the Commission to pay to Masdar the sum of EUR 448 947.78 claimed by Masdar at first instance or, failing that, the sum of EUR 249 314.35 or such other sum as the Court considers appropriate, plus interest on the sum chosen;
– order the Commission to pay the costs of the present proceedings and of the proceedings before the Court of First Instance.
38. The Commission contends that the Court should:
– dismiss the appeal;
– in the alternative, should the Court set aside, in whole or in part, the judgment under appeal, dismiss Masdar’s claim for monetary compensation;
– order Masdar to pay the costs of the present proceedings and of the proceedings before the Court of First Instance;
– in the alternative, should the Court find for Masdar, order Masdar to bear one-third of its own costs as incurred in the proceedings before the Court of First Instance.
The appeal
39. Masdar relies essentially on five pleas in law in support of its appeal, alleging in respect of the judgment under appeal: (i) errors in law and failure to state reasons in relation to the treatment of the issue of unjust enrichment; (ii) distortion of the facts and error in law in the treatment of the issue of negotiorum gestio ; (iii) breach of the principle of the protection of legitimate expectations and inconsistency in the reasons stated; (iv) incorrect treatment of the plea alleging fault ( faute ) or negligence; and (v) incomplete assessment of the facts.
The first plea in law, alleging errors in law and failure to state reasons in relation to the treatment of the issue of unjust enrichment
Arguments of the parties
40. Masdar claims that the Court of First Instance erred in finding that Masdar had merely acted in pursuance of its contractual obligations towards Helmico.
41. In addition, the Court of First Instance erred in law, according to Masdar, by failing to take into consideration the fact that the Commission was no ordinary co‑contractor vis-à-vis Helmico, but one with powers of recovery. By leaving Masdar to complete the works and by then exercising its powers of recovery, the Commission – which had thereby emptied the previously existing contractual relations of their content – unduly enriched itself.
42. The Commission notes that Masdar did not terminate its contracts with Helmico.
43. In any event, according to the Commission, the Court of First Instance correctly found in paragraphs 97 to 99 of the judgment under appeal that the Commission had not unjustly enriched itself, because the Commission derived its advantage from its contract with Helmico, and Masdar was under an obligation to act because of its subcontract with Helmico.
Findings of the Court
44. According to the principles common to the laws of the Member States, a person who has suffered a loss which increases the wealth of another person without there being any legal basis for that enrichment has the right, as a general rule, to restitution from the person enriched, up to the amount of the loss.
45. In that regard, as the Court of First Instance stated, legal redress for undue enrichment, as provided for in the majority of national legal systems, is not necessarily conditional upon unlawfulness or fault with regard to the defendant’s conduct.
46. On the other hand, in order for an action for unjust enrichment to be upheld, it is essential that there be no valid legal basis for the enrichment. That condition is not satisfied, in particular, where the enrichment derives from contractual obligations.
47. Given that unjust enrichment, as defined above, is a source of non‑contractual obligation common to the legal systems of the Member States, the Community cannot be dispensed from the application to itself of the same principles where a natural or legal person alleges that the Community has been unjustly enriched to the detriment of that person.
48. Moreover, since any obligation arising out of unjust enrichment is by definition non‑contractual in nature, it is necessary to allow it to be invoked pursuant to Article 235 EC and the second paragraph of Article 288 EC, as the Court of First Instance did in the case before it.
49. Actions for unjust enrichment do not fall under the rules governing non‑contractual liability in the strict sense, which, to be invoked, require a number of conditions to be satisfied, relating to the unlawfulness of the conduct imputed to the Community, the fact of the damage alleged and the existence of a causal link between that conduct and the damage complained of (see, inter alia, Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others v Council and Commission [2008] ECR I‑0000, paragraph 106 and the case‑law cited). They differ from actions brought under those rules in that they do not require proof of unlawful conduct – indeed, of any form of conduct at all – on the part of the defendant, but merely proof of enrichment on the part of the defendant for which there is no valid legal basis and of impoverishment on the part of the applicant which is linked to that enrichment.
50. However, despite those characteristics, the possibility of bringing an action for unjust enrichment against the Community cannot be denied to a person solely on the ground that the EC Treaty does not make express provision for a means of pursuing that type of action. If Article 235 EC and the second paragraph of Article 288 EC were to be construed as excluding that possibility, the result would be contrary to the principle of effective judicial protection, laid down in the case‑law of the Court and confirmed in Article 47 of the Charter of fundamental rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1) (see Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 37, and Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑0000, paragraph 335).
51. The question whether the Court of First Instance erred in law in its examination of the issue of unjust enrichment should be examined in the light of those preliminary considerations.
52. It is apparent from the judgment under appeal that the Court of First Instance rejected Masdar’s arguments on the ground that there was a contractual relationship between the Commission and Helmico, on the one hand, and between Helmico and Masdar, on the other. The Court of First instance inferred from this that any enrichment on the part of the Commission or impoverishment on the part of Masdar arose from the contractual framework in place and, in consequence, could not be categorised as ‘unjust’.
53. In addition, according to the Court of First Instance, Masdar had an alternative means of obtaining what it was owed, since, under its subcontracts with Helmico, it could bring an action against that company for breach of contract before the courts of England and Wales as designated by those contracts.
54. As was pointed out in paragraph 46 above, enrichment cannot be categorised as ‘unjust’, where it derives from contractual obligations.
55. On the other hand, where contracts under which services are provided prove to be invalid and cease to exist, the enrichment of the beneficiary of those services must, in accordance with the principles developed in the legal systems of the Member States, give rise, in certain circumstances, to restitution.
56. Without it being necessary to determine the circumstances in which restitution is due, it must be held that the Court of First Instance correctly applied the distinction, outlined above, between enrichment which derives from contractual relationships and enrichment which is ‘unjust’.
57. For the reasons set out by the Advocate General at points 53 and 54 of his Opinion, the Court of First Instance found, correctly, that the contracts concluded between the Commission and Helmico, on the one hand, and between Helmico and Masdar, on the other, had not ceased to exist. The Court of First Instance inferred from this, correctly, that there could be no non‑contractual obligation for the Community to assume responsibility for the expenses incurred by Masdar in order to complete the Russian and Moldovan projects.
58. The Court of First Instance noted, in particular, that, while fully aware that Helmico was in breach of its contractual obligations, Masdar knowingly chose to continue to fulfil its own obligations. It also pointed out that Masdar had initiated legal proceedings against Helmico, in accordance with the choice of jurisdiction clause in its contracts with that company.
59. Moreover, the Court of First Instance stated, rightly, that in all contractual relationships there is a certain risk that a party will not perform the contract satisfactorily or that it will become insolvent. That is a commercial risk inherent in the activities of economic operators.
60. That last element is of particular importance in the context of Community assistance programmes. It is not uncommon for the co‑contractor to which the Community has entrusted a project to confine itself to a management role and to delegate implementation of the project to subcontractors, who may in turn subcontract work to other undertakings. In such a context, each economic operator involved in the project must accept the risk that its co‑contractor may become insolvent or that it may commit irregularities leading the Community to suspend payments or even to issue recovery orders. In those circumstances, it cannot easily be accepted that the losses flowing from the materialisation of such risks must give rise to ad hoc payments on the part of the Community.
61. It follows from the foregoing that the Court of First Instance did not err in law or fail to state reasons in its treatment of the issue of unjust enrichment. The first plea in law must therefore be rejected.
The second plea in law, alleging distortion of the facts and error in law in the treatment of the issue of negotiorum gestio
Arguments of the parties
62. According to Masdar, the arguments underpinning the judgment under appeal on the issue of negotiorum gestio are incorrect in fact and in law.
63. The findings of the Court of First Instance that Masdar’s conduct was not in the nature of benevolent intervention and that the Commission was capable of managing the projects itself are manifestly incorrect.
64. Moreover, the Court of First Instance erred in law by finding, at paragraph 101 of the judgment under appeal, that the principle of negotiorum gestio cannot apply where the principal is aware of the need for immediate action.
65. The Commission contends that the finding, at paragraph 97 et seq. of the judgment under appeal, that Masdar acted in pursuance of its contracts with Helmico, is a sufficient basis for rejecting the arguments regarding negotiorum gestio .
Findings of the Court
66. Without it being necessary to determine whether the Court of First Instance made a correct classification of the legal nature of actions based on negotiorum gestio , it should be pointed out that the arguments put forward by Masdar in support of this second plea in law cannot, in any case, be upheld.
67. First, Masdar cannot validly claim that its services were benevolent. In fact, both at first instance and in the context of this appeal, Masdar has stated that the reason why it continued to provide its services after discovering the irregularities committed by Helmico was because it believed that the Commission had undertaken to ensure that it would be paid for those services. That alone is sufficient to preclude a finding that the Court of First Instance distorted the facts by refusing to recognise that Masdar’s conduct was in the nature of benevolent intervention.
68. Concerning, next, the argument that the Court of First Instance distorted the facts by finding that the Commission was capable of managing the projects itself, it is sufficient to note that Masdar has not provided evidence showing that the Commission was no longer able to ensure the management of the programme or of the projects at issue.
69. Lastly, as regards the argument that the Court of First Instance erred in law, it should be pointed out that, at paragraph 101 of the judgment under appeal, the Court of First Instance stated that the manager’s action is ‘generally’ carried out without the knowledge of the principal, or at least without the latter being aware of the need to act immediately. Contrary to Masdar’s argument, the Court of First Instance thus did not exclude the possibility that the principle of negotiorum gestio might be invoked in circumstances where the principal was conscious of such a need.
70. In consequence, the second plea in law must also be rejected.
The third plea in law, alleging breach of the principle of the protection of legitimate expectations and inconsistency in the reasons stated
Arguments of the parties
71. Masdar argues that there is inconsistency between the reasons stated by the Court of First Instance concerning unjust enrichment and negotiorum gestio , on the one hand, and concerning the principle of the protection of legitimate expectations, on the other.
72. Masdar notes that the Court of First Instance accepted, at paragraph 101 of the judgment under appeal, that the Commission induced Masdar to continue to provide services and, at paragraph 148 of that judgment, that the Commission and Masdar had evinced a common intention that Masdar should complete the projects and be paid. Consequently, the finding at paragraph 130 of the judgment under appeal that ‘it must be concluded that the evidence available, examined separately or as a whole, does not reveal precise assurances given by the Commission which could give rise to reasonable expectations on the part of [Masdar], enabling it to rely on the principle of the protection of legitimate expectations’ is manifestly incorrect.
73. In the alternative, Masdar claims that the test used by the Court of First Instance is too narrow for cases such as this. According to Masdar, precise assurances should be inferred where the conduct of the Community institution is such as to induce a subcontractor to provide services for the benefit of the institution in circumstances where it has become clear that that subcontractor will not be paid by the main co‑contractor.
74. The Commission contends, first, that that plea relates to questions of fact and is therefore inadmissible.
75. Concerning, next, the principle of the protection of legitimate expectations, the Commission notes that the Court of First Instance examined in detail, first, whether the written documents originating from the Commission could be interpreted as precise assurances that the Commission was going to assume responsibility for payments and, secondly, whether the evidence suggested that such precise assurances had been given at the meeting of 2 October 1998.
Findings of the Court
76. It should be borne in mind at the outset that the question whether the grounds of a judgment of the Court of First Instance are contradictory or inadequate is a question of law which is amenable, as such, to review on appeal (Joined Cases C‑403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 77 and the case‑law cited).
77. This plea is also admissible in so far as it alleges breach of the principle of the protection of legitimate expectations. Masdar’s arguments in that regard do not relate to the finding of certain facts, but concern the test used by the Court of First Instance to apply that principle. The question whether the Court of First Instance applied the correct legal standard when examining the facts is a question of law ( Sumitomo Metal Industries and Nippon Steel v Commission , paragraph 40).
78. Thus, contrary to the Commission’s contention, it is necessary to examine the substance of this plea.
79. As regards, first, the alleged inconsistency of the reasons stated, Masdar argues that the findings of the Court of First Instance that the Commission and Masdar had a common objective – the completion in full of the projects as initially planned – and that the Commission had induced Masdar to continue to provide services, contradicts its conclusion that the Commission had not given precise assurances.
80. That argument cannot succeed. As the Court of First Instance pointed out at paragraph 120 of the judgment under appeal, the precise assurances alleged by Masdar related to the payment by the Commission of services which Masdar had provided to Helmico. The fact – noted by the Court of First Instance elsewhere in the judgment under appeal – that the Commission, wishing the projects to be carried out as planned, had induced Masdar to continue to provide services is clearly unrelated to Masdar’s argument that the Commission undertook to pay Masdar directly. Consequently, there cannot be any inconsistency between the findings of the Court of First Instance concerning, on the one hand, the wishes expressed by the Commission concerning the completion of the projects and, on the other, the Commission’s refusal to pay Masdar directly.
81. As regards, next, the test set out by the Court of First Instance in paragraph 119 of the judgment under appeal, for the purposes of applying to the case before it the principle of the protection of legitimate expectations, it must be held that that test clearly reflects settled case‑law according to which a party may not plead breach of that principle unless it has been given precise assurances by the administration (see, to that effect, Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 147, and Case C‑213/06 P EAR v Karatzoglou [2007] ECR I‑6733, paragraph 33 and the case‑law cited).
82. Masdar claims that the requirement of precise assurances must be applied with a degree of flexibility in cases such as this. Legitimate expectations arise where the conduct of the Community institution is such as to induce a subcontractor to provide services to the benefit of that institution in circumstances where it has become clear that the subcontractor will not be paid by the Community’s co‑contractor.
83. That argument cannot be accepted.
84. In that regard, it should be borne in mind that the system of assistance programmes provided for under Community legislation is based on the implementation, by the Commission’s co‑contractor, of a series of obligations entitling it to payment of the financial assistance provided for. Where the co‑contractor has not implemented the project in accordance with the conditions to which the grant of assistance was made subject, it cannot rely on the principle of protection of legitimate expectations in order to secure payment of that financial assistance (see, to that effect, Joined Cases C‑383/06 to C‑385/06 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others [2008] ECR I‑0000, paragraph 56).
85. That enables the Commission, where a co‑contractor is guilty of irregularities in the context of a Community assistance project, to discharge its duty to protect the financial interests and budgetary discipline of the Community.
86. In that context, which is distinguished by the great importance attaching to the financial supervision of the project, subcontractors cannot rely on vague indications to claim that they had a legitimate expectation that the Commission would make a financial gesture in their regard by paying them directly for their services. Such a legitimate expectation can arise only from precise assurances from that institution indicating unambiguously that it will guarantee payment for the subcontracted services. As the Court of First Instance found, it has not been shown that such assurances were given.
87. It follows from the foregoing that the third plea in law must also be rejected.
The fourth plea in law, alleging incorrect treatment of the plea alleging fault (faute) or negligence
Arguments of the parties
88. Masdar criticises the Court of First Instance for finding, in paragraph 141 of the judgment under appeal, that ‘Masdar merely states that … a duty of care [as described in paragraph 140 of that judgment] exists, without adducing the slightest proof or putting forward legal arguments in support of its claim’, when Masdar had set out, in the light of a legal analysis of the concepts of fault ( faute ) and negligence, that where the Commission exercises its power to suspend the payment of a contract in the case of irregularities committed by the co‑contractor, knowing that a subcontractor has been working for the co‑contractor, it must exercise care so as to ensure that it does not harm that subcontractor. Moreover, Masdar claims that it is evident that the Commission acted negligently, because it first allowed Masdar to complete the work and only then exercised its powers of recovery.
89. The Commission contends that the Court of First Instance was right to find, at paragraph 141 of the judgment under appeal, that Masdar had failed to substantiate its argument.
Findings of the Court
90. As the Court has already pointed out, ‘negligence’ entails an act or omission by which the party responsible breaches the duty of care which it should have discharged, and could have discharged, in view of its attributes, knowledge and abilities (see, to that effect, Case C‑308/06 Intertanko and Others [2008] ECR I‑0000, paragraph 74 to 77).
91. It is therefore possible for the Community administration to be non‑contractually liable for wrongful conduct where it fails to act with all necessary care and, as a result, causes harm (see, to that effect, Case 145/83 Adams v Commission [1985] ECR 3539, paragraph 44, and Case C‑331/05 P Internationaler Hilfsfonds v Commission [2007] ECR I‑5475, paragraph 24).
92. That duty of care is inherent in the principle of sound administration. It applies generally to the actions of the Community administration in its relations with the public. It must, therefore, also be discharged by the Commission in its relations with Masdar and in its commitments in respect of that undertaking.
93. However, the duty of care does not have the scope which Masdar ascribes to it. It entails that the Community administration must act with care and caution. On the other hand, the administration is not required to remove from economic operators all harm flowing from normal commercial risks, such as the risk described at paragraph 59 above. | 1 |
865,088 | 25 Nevertheless, in Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 21, the Court considered that, in order to determine whether it has jurisdiction, it is a matter for the Court of Justice to examine the conditions in which the case has been referred to it by the national court. The spirit of cooperation which must prevail in the preliminary-ruling procedure requires the national court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (Foglia v Novello, cited above, paragraphs 18 and 20, and Case 149/82 Robards v Insurance Officer [1983] ECR 171, paragraph 19). | 35. Under that provision, the true and fair view which the annual accounts of a company must give is based on a valuation of the assets not on the basis of their real value, but on the basis of their historical cost. | 0 |
865,089 | 32. As regards the question of the circumstances in which a measure applicable without distinction, such as the system of premium rate increases at issue in the main proceedings, may come within that concept, it should be borne in mind that rules of a Member State do not constitute a restriction within the meaning of the FEU Treaty solely by virtue of the fact that other Member States apply less strict, or more commercially favourable, rules to providers of similar services established in their territory (see Case C 518/06 Commission v Italy , paragraph 63 and the case-law cited). | 77. Les conditions d’admission d’un concours doivent être déterminées en fonction de l’intérêt du service et, pour déterminer cet intérêt, les institutions communautaires jouissent d’un large pouvoir d’appréciation (voir, en ce sens, arrêts du 4 février 1987, Bouteiller/Commission, 324/85, Rec. p. 529, point 6; du 12 février 1987, Bonino/Commission, 233/85, Rec. p. 739, point 5, et du 3 avril 2003, Parlement/Samper, C‑277/01 P, Rec. p. I‑3019, point 35). | 0 |
865,090 | 39. To require those who, among the residents of a Member State, are insured under the social security scheme of another Member State to finance, in addition, even if only partially, the social security scheme of the Member State of residence would give rise to unequal treatment under Article 13 of Regulation No 1408/71, since all other residents of the latter Member State are required to contribute only to its social security scheme (see, to that effect, judgments in Commission v France , EU:C:2000:84, paragraphs 45 to 48, and Commission v France , EU:C:2000:85, paragraphs 42 to 45). | 116. Moreover, as the Advocate General noted at point 161 of her Opinion, such an interpretation would render the reference in Clause 4(2) of the framework agreement to the principle of pro rata temporis meaningless, that principle being intended by definition only to apply to divisible performance, such as that deriving from financial employment conditions linked, for example, to remuneration and pensions. | 0 |
865,091 | 43 It should be pointed out that the Member States, which retain exclusive competence as regards the maintenance of public order and the safeguarding of internal security (Case C-265/95 Commission v France [1997] ECR I-6959, paragraph 33), enjoy a margin of discretion in determining, according to particular social circumstances and to the importance attached by those States to a legitimate objective under Community law, such as the campaign against various forms of criminality linked to the consumption of alcohol, the measures which are likely to achieve concrete results. | 37. At the very most, the national court notes in this regard that Land Sachsen-Anhalt subsequently took advantage of the derogation provided for in Article 22(1)(b) of Directive 2003/88 in legislation adopted later for the transposition of that directive in regard, specifically, to fire fighters employed by the urban and municipal authorities in Sachsen-Anhalt. However, those rules did not enter into force until 1 January 2008, that is to say, after the transfer decision had been taken. | 0 |
865,092 | 50. As regards Eni’s argument that that presumption of the exercise of an actual decisive influence runs counter to the principles of lawfulness, that penalties should be applied only to the offender, of personal liability and of legal certainty, it is sufficient to recall that that presumption seeks precisely to find a balance between the importance, on the one hand, of the objective of penalising conduct contrary to the competition rules, in particular Article 101 TFEU, and to prevent its repetition and, on the other, the requirements of certain general principles of European Union law, such as, in particular, the principles of the presumption of innocence, that penalties should be applied only to the offender, legal certainty and the rights of the defence, including the principle of equality of arms. It is particularly for that reason that it is rebuttable (see, to that effect, inter alia, Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I-0000, paragraph 59). Since Eni’s argument is unfounded, the judgment under appeal is not vitiated by any error in that regard. | 60 The remainder of the application must be dismissed. | 0 |
865,093 | 35. Accordingly, national rules, formulated in terms of general and abstract criteria, cannot refuse or restrict to a disproportionate extent the compensation to be made available to a passenger solely on the basis of his contribution to the occurrence of the injuries which arise. It is only in exceptional circumstances that, on the basis of an individual assessment and in compliance with Community law, the amount of such compensation may be limited (see, to that effect, Candolin and Others , paragraphs 29, 30 and 35). | 50. The development in the case‑law of a list of factors to be taken into consideration for the purpose of determining a person’s habitual residence, which is now codified in Article 11(1) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1), reflects the importance of establishing a single place of residence. | 0 |
865,094 | 32. It must also be pointed out that, according to settled case-law, classification as aid requires that all the conditions set out in that provision should be fulfilled (see Case C-142/87 Belgium v Commission (‘Tubemeuse’) [1990] ECR I-959, paragraph 25; Joined Cases C-278/92 to C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 20; Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 68, and Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraph 74). | 39. En tout état de cause, Baby Dan n’invoque aucune caractéristique ou propriété de l’article en cause justifiant le classement de ce dernier dans la position 8302 de la NC. | 0 |
865,095 | 93. For the purposes of checking the market price, the national authorities may take into consideration, in particular, the form of the transfer of company, for example public tendering, deemed to ensure that a sale takes place under market conditions or any expert’s report prepared at the time of the transfer (see, to that effect, Case C‑214/07 Commission v France [2008] ECR I‑8357, paragraphs 59 and 60). | 50. The Court has consistently held that Article 1(2) of Directive 91/439 provides for mutual recognition, without any formality, of driving licences issued by Member States. That provision imposes on Member States a clear and precise obligation, which leaves no room for discretion as to the measures to be adopted in order to comply with it (judgments in Case C‑230/97 Awoyemi [1998] ECR I‑6781, paragraphs 41 and 43; Case C-246/00 Commission v Netherlands [2003] ECR I‑7485, paragraphs 60 and 61; and Kapper , paragraph 45; orders of 6 April 2006 in Case C‑227/05 Halbritter [2006] ECR I‑0049, and of 28 September 2006 in Case C‑340/05 Kremer [2006] ECR I-0098). | 0 |
865,096 | 18 The Court has also consistently held that Article 95 applies only to products from the Member States and, where appropriate, to goods originating in non-member countries which are in free circulation in the Member States. It follows that that provision is not applicable to products imported directly from non-member countries (see the judgment in Simba and Others, paragraph 14). | 9THE PERSON CONCERNED MUST THUS FULFIL ALL THE CONDITIONS REQUIRED BY THE DOMESTIC LEGISLATION OF THAT STATE IN ORDER TO EXERCISE THAT RIGHT .
| 0 |
865,097 | 69. Thus, provided that undertakings in the first category could in fact avail themselves of that principle, it may, as appropriate, have been necessary to authorise such transitional provisions, even though those undertakings were not in a situation comparable to that of undertakings in the second category. The Court has already held, inter alia, that, in the absence of an overriding public interest, the Commission infringes a superior rule of law if it fails to couple the repeal of a set of rules with transitional measures for the protection of the expectations which a trader might legitimately have derived from the European Union rules (see, to that effect, Belgium and Forum 187 v Commission , paragraph 149 and the case-law cited). | 34. With regard to the wording of Article 93(5) of Regulation No 40/94, the concept of ‘the Member State in which the act of infringement has been committed’ implies, as the Advocate General stated in point 31 of his Opinion, that that linking factor relates to active conduct on the part of the person causing that infringement. Therefore, the linking factor provided for by that provision refers to the Member State where the act giving rise to the alleged infringement occurred or may occur, not the Member State where that infringement produces its effects. | 0 |
865,098 | 95. In that regard, it must be borne in mind that, according to settled case-law, the jurisdiction of the Court of Justice is, in principle, confined to review of the findings of law on the pleas argued before the Court of First Instance (Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 59, and Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 95). | 40 A strict application of the deadline for the communication of information provided for in the second subparagraph of Article 3(2) of Regulation No 536/93 appears to be even more necessary, as is apparent, in particular, from the Commission's explanations, because a delay in transmitting the collection figures after the 15 May deadline would not only have repercussions on all the other deadlines in the administrative procedure but might also jeopardise the punctual payment of the additional levy sums due. | 0 |
865,099 | 38. Since Article 10 of Directive 1999/31 and Articles 1 to 3 of Directive 2000/35 have direct effect, they are binding on all the authorities of the Member States, that is to say, not merely the national courts but also all administrative bodies, including decentralised authorities, and those authorities are required to apply them (see, to that effect, Case 103/88 Costanzo [1989] ECR 1839, paragraphs 30 to 33 and Case C‑243/09 Fuß [2010] ECR I‑9849, paragraph 61 and the case‑law cited). | 40. As regards detriment to the repute of the mark, also referred to as ‘tarnishment’ or ‘degradation’, such detriment is caused when the goods or services for which the identical or similar sign is used by the third party may be perceived by the public in such a way that the trade mark’s power of attraction is reduced. The likelihood of such detriment may arise in particular from the fact that the goods or services offered by the third party possess a characteristic or a quality which is liable to have a negative impact on the image of the mark. | 0 |
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