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866,200 | 33 In paragraphs 48 and 54 of that judgment, the Court pointed out that the obligation to notify is essential for achieving such Community control and went on to state that the effectiveness of such control will be that much greater if the Directive is interpreted as meaning that breach of the obligation to notify constitutes a substantial procedural defect such as to render the technical regulations in question inapplicable, and thus unenforceable against individuals. | 33. Additionally, the Court has held that it is explicitly stated in the fourth paragraph of the preamble to the Framework Agreement that the agreement does not apply to temporary workers (see Della Rocca , EU:C:2013:235, paragraphs 36 and 45). | 0 |
866,201 | 12 It should be noted that, as is clear from the 22nd recital in the preamble to Regulation No 404/93, Article 30 of that regulation is intended to deal with any disturbance in the internal market which the replacement of the various national markets by the common organisation of the market threatened to bring about (see, inter alia, Belgium and Germany v Commission, paragraph 22, and the case-law cited). According to that recital, Article 30 gives the Commission the power to take any transitional measures required to overcome the difficulties of implementing the common organisation of the market. Furthermore, the Court has held that application of Article 30 is subject to the condition that the specific measures which the Commission must adopt are intended to assist transition from national arrangements to the common organisation of the market and that they are necessary for that purpose (see, inter alia, T. Port, paragraph 35). | 62
Nevertheless, the service provided by an internet website host, which consists in the storage of information, is of a more permanent nature. Accordingly, such a host may obtain knowledge of the illegal character of certain information that it stores at a time subsequent to that when the storage was processed and when it is still capable of taking action to remove or disable access to it. | 0 |
866,202 | 36. Article 33 of the Sixth Directive does not, on the other hand, preclude the maintenance or introduction of a tax which does not display one of the essential characteristics of VAT (Case C‑130/96 Solisnor-Estaleiros Navais [1997] ECR I‑5053, paragraphs 19 and 20; GIL Insurance and Others , paragraph 34; and Banca Popolare di Cremona , paragraph 27). | 6. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9, et du 17 janvier 2008, Commission/Allemagne, C‑152/05, Rec. p. I‑39, point 15). | 0 |
866,203 | 34. Force est de souligner à cet égard que le système des voies de recours établi par le traité distingue les recours visés aux articles 226 CE et 227 CE, qui tendent à faire constater qu’un État membre a manqué aux obligations qui lui incombent, et les recours visés aux articles 230 CE et 232 CE, qui tendent à faire contrôler la légalité des actes ou des abstentions des institutions communautaires. Ces voies de recours poursuivent des objectifs distincts et sont soumises à des modalités différentes. Un État membre ne saurait donc utilement, en l’absence d’une disposition du traité l’y autorisant expressément, invoquer l’illégalité d’une décision dont il est destinataire comme moyen de défense à l’encontre d’un recours en manquement fondé sur l’inexécution de cette décision (voir, notamment, arrêts du 30 juin 1988, Commission/Grèce, 226/87, Rec. p. 3611, point 14; du 27 octobre 1992, Commission/Allemagne, C-74/91, Rec. p. I-5437, point 10, et du 27 juin 2000, Commission/Portugal, C-404/97, Rec. p. I-4897, point 34). | 107. En outre, il n’appartient pas non plus à la Cour, lorsqu’elle statue sur un pourvoi, de substituer, pour des motifs d’équité, son appréciation à celle du Tribunal statuant, dans l’exercice de sa compétence de pleine juridiction, sur le montant de l’amende infligée à une entreprise en raison de la violation par celle-ci des règles du droit de l’Union (voir, notamment, arrêt du 10 mai 2007, SGL Carbon/Commission, C‑328/05 P, Rec. p. I‑3921, point 98 et la jurisprudence citée). Au surplus, il est de jurisprudence constante que, lorsqu’elle procède à la détermination du montant d’une telle amende, la Commission n’est pas obligée de tenir compte de la situation économique de l’entreprise concernée, puisque la reconnaissance d’une telle obligation reviendrait à procurer des avantages concurrentiels injustifiés aux entreprises les moins adaptées aux conditions du marché (voir, notamment, arrêt SGL Carbon/Commission, précité, point 100 et la jurisprudence citée). | 0 |
866,204 | 20. It is settled case‑law that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. Consequently, where the questions referred concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see Case C‑553/11 Rintisch [2012] ECR I‑0000, paragraph 15 and the case-law cited). | 73. No argument has been put forward which would justify giving the "standstill" clause relating to freedom of movement for workers a narrower scope than that given to the same clause relating to freedom of establishment and freedom to provide services. | 0 |
866,205 | 45. The Court has thus held that the Council, which may not counter a decision of the Commission finding aid incompatible with the internal market by itself declaring that aid compatible with that market, is also not permitted to thwart the effectiveness of such a decision by declaring compatible with the internal market, in accordance with the third subparagraph of Article 108(2) TFEU, an aid designed to compensate the beneficiaries of the unlawful aid declared incompatible with the internal market for the repayments they are required to make pursuant to that decision (see, to that effect, Case C‑110/02 Commission v Council , paragraphs 44 and 45, and Case C‑399/03 Commission v Council , paragraph 28). | 58. The primary objective of the TRIPs Agreement is to strengthen and harmonise the protection of intellectual property on a worldwide scale (Case C‑89/99 Schieving-Nijstad and Others [2001] ECR I‑5851, paragraph 36). As follows from its preamble, the TRIPs Agreement has the objective of reducing distortions of international trade by ensuring, in the territory of each member of the WTO, the effective and adequate protection of intellectual property rights. Part II of the agreement contributes to attaining that objective by setting out, for each of the principal categories of intellectual property rights, rules which must be applied by every member of the WTO. | 0 |
866,206 | 70. The argument of the governments which submitted observations to the Court relying on the judgment in Truck Center (C‑282/07, EU:C:2008:762), to the effect that the difference in treatment of resident taxpayers and non-resident taxpayers simply reflects the difference between the situations in which those taxpayers find themselves, where resident taxpayers may offset the tax on dividends against another tax, while that tax on dividends is a final tax for non-resident taxpayers, must be rejected. It is true that in the circumstances of that judgment the Court allowed the application, to recipients of income from capital, of different taxation arrangements, depending on whether those recipients are residents or non-residents, since that difference in treatment relates to situations which are not objectively comparable (see, to that effect, judgment in Truck Center , C‑282/07, EU:C:2008:762, paragraph 41). Since that difference in treatment does not necessarily procure an advantage for resident recipients, the Court held that it did not constitute a restriction on freedom of establishment (see, to that effect, judgment in Truck Center , C‑282/07, EU:C:2008:762, paragraphs 49 and 50). | 39. Certes, afin de respecter le principe d’effectivité, l’organisation des voies de recours internes et le nombre de degrés de juridiction ne doivent pas rendre impossible ou excessivement difficile l’exercice des droits que les justiciables tirent du droit de l’Union. | 0 |
866,207 | 61. It must be stated in that regard that, since the abovementioned provision has direct effect, it is 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 such as Länder , cities and towns or communes, and those authorities are required to apply it (see, to that effect, Case 103/88 Costanzo [1989] ECR 1839, paragraphs 30 to 33). | 61. As stated in paragraph 43 of the judgment under appeal, the main innovation in the 1998 Guidelines consists in taking as a starting point for the calculation a basic amount, determined on the basis of brackets of figures laid down for that purpose by the 1998 Guidelines; those brackets reflect the various degrees of gravity of infringements but, as such, bear no relation to the relevant turnover. The essential feature of that method is thus that fines are determined on a tariff basis, albeit one that is relative and flexible ( Dansk Rørindustri and Others v Commission , paragraph 225). | 0 |
866,208 | 66. However, when conducting such a review, the European Union judicature must not substitute its own economic assessment for that of the Commission (Case C‑525/04 P Spain v Lenzing [2007] ECR I‑9947, paragraph 57). The review by the European Union judicature of the complex economic assessments made by the Commission is necessarily limited and confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers (see Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission and Others [2009] ECR I‑0000, paragraph 163). | 18 The same is true of any amendment subsequent to the entry into force of the Sixth Directive which increases the extent of exclusions applicable immediately before that amendment. | 0 |
866,209 | 31. Accordingly, when the information provided by the national court is sufficient to explain the subject-matter of the dispute in the main proceedings and the main issues raised by it for the European Union legal order as well as to enable, first, the Member States to submit their observations in accordance with Article 23 of the Statute of the Court of Justice and to participate effectively in the proceedings before the Court and, second, the Court to provide an answer which will be of use to the national court, the reference for a preliminary ruling must be regarded as admissible (see, to that effect, Schröder , paragraphs 19, 21 and 22). | 22. In the light of the foregoing, the reference for a preliminary ruling must be regarded as admissible.
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866,210 | 40. In that regard, it should be recalled that it follows from the Court’s case-law that the principle of fiscal neutrality inherent in the common system of VAT precludes the taxation of a taxable person’s business activities leading to double taxation (see, to that effect, judgments in Puffer , C‑460/07, EU:C:2009:254, paragraph 45 and 46, and Klub , C‑153/11, EU:C:2012:163, paragraph 42). | 97
The first point to note is that, in exercising the discretion conferred on it in such matters, the Court is empowered to impose a penalty payment and a lump sum payment cumulatively (judgment of 2 December 2014 in Commission v Greece, C‑378/13, EU:C:2014:2405, paragraph 71). | 0 |
866,211 | 48
As regards public contracts, it is the concern of the European Union to ensure the widest possible participation by tenderers in a call for tenders, including contracts which are not covered by Directive 2004/17 (see, to that effect, judgments of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C‑358/12, EU:C:2014:2063, paragraph 29, and of 28 January 2016, CASTA and Others, C‑50/14, EU:C:2016:56, paragraph 55). The use of subcontractors, which is likely to facilitate access of small and medium-sized undertakings to public contracts, contributes to the pursuit of that objective. | 111. It follows from the foregoing considerations relating to Question 1(b) that recourse to the twofold legal basis of Articles 95 EC and 133 EC has not vitiated the procedure for adopting the Directive and that the latter is not invalid on that account.
Question 1(c) | 0 |
866,212 | 43 It must be recalled in that regard that misuse of powers is defined by settled case-law as the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see, in particular, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69). | 69 The Court' s case-law (see, in particular, Case C-156/93 Parliament v Commission [1995] ECR I-2019, paragraph 31) defines misuse of powers as the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. | 1 |
866,213 | 67. It follows that an interpretation of Article 12 of the 1976 Act which would establish for the benefit of the Parliament a general power to review the official declaration made by the Member States’ authorities would not only be contrary to the wording of that article, but would also be incompatible with the principle embodied in Articles 5 EC and 7 EC that the powers of the Community and its institutions are limited to those specifically conferred on it (see, to that effect, Case C‑376/98 Germany v Parliament and Council [2000] ECR I‑8419, paragraph 83, 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 203 and the case‑law cited). | 40. À titre liminaire, il convient de rappeler que le principe d’égalité de traitement exige que des situations comparables ne soient pas traitées de manière différente et que des situations différentes ne soient pas traitées de manière égale, à moins qu’un tel traitement ne soit objectivement justifié (voir arrêts du 3 mai 2007, Advocaten voor de Wereld, C‑303/05, Rec. p. I‑3633, point 56, et du 15 mai 2008, Delay, C‑276/07, non encore publié au Recueil, point 19). | 0 |
866,214 | 38. In the present case, while if there is disagreement between the parties over the legal basis actually used by the Council to adopt the contested decision, it is clearly apparent from the wording of that decision that it is based on Article 8(3) of Decision 2005/387 (see by analogy, judgment in Parliament v Council , C‑317/13 and C‑679/13, EU:C:2015:223, paragraphs 28 to 31). | 40. Even though, according to their wording, the Treaty provisions concerning freedom of establishment are directed to ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation (see, inter alia, Case C‑264/96 ICI [1998] ECR I‑4695, paragraph 21, and Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 42). | 0 |
866,215 | 18 It is established case-law that, in the procedure laid down by Article 177 of the Treaty providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it (Case C-334/95 Krüger v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517, paragraph 22). To that end the Court of Justice may have to reformulate the question referred to it (Krüger, cited above, paragraph 23). | 38 CONTRARY TO WHAT THE APPLICANTS MAINTAIN , A DECISION ORDERING AN UNDERTAKING TO SUBMIT TO AN INVESTIGATION IS A FORM OF PREPARATORY INQUIRY AND AS SUCH , MUST BE REGARDED AS A STRAIGHTFORWARD MEASURE OF MANAGEMENT . THAT IS TRUE EVEN IF THE UNDERTAKINGS ARE OPPOSED TO THE INVESTIGATION . THE POWER CONFERRED ON THE COMMISSION BY ARTICLE 14 ( 3 ) OF REGULATION NO 17 IS EXERCISED PRECISELY AND ABOVE ALL WHEN THE COMMISSION EXPECTS THAT THE UNDERTAKINGS WILL NOT SUBMIT VOLUNTARILY TO AN INVESTIGATION .
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866,216 | 32. Directive 80/987 is intended to guarantee employees a minimum level of protection under European Union law in the event of the insolvency of their employer (see, inter alia, Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357, paragraph 3, and Case C-69/08 Visciano [2009] ECR I‑6741, paragraph 27), without prejudice, in accordance with its Article 9, to more favourable provisions which the Member States may apply or introduce (see, to that effect, Case C‑160/01 Mau [2003] ECR I‑4791, paragraph 32, and Case C‑278/05 Robins and Others [2007] ECR I‑1053, paragraph 40). | 67. À cet égard, il convient de rappeler que, selon une jurisprudence constante, la motivation de l’arrêt attaqué doit faire apparaître de façon claire et non équivoque le raisonnement du Tribunal, de manière à permettre aux intéressés de connaître les justifications de la décision prise et à la Cour d’exercer son contrôle juridictionnel (voir arrêt Deutsche Telekom/Commission, C‑280/08 P, EU:C:2010:603, point 136 et jurisprudence citée). | 0 |
866,217 | 33
In particular, the detailed procedural rules governing the remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities must not compromise the effectiveness of Directive 89/665 (see, to that effect, judgments of 3 March 2005, Fabricom, C‑21/03 and C‑34/03, EU:C:2005:127, paragraph 42; 6 October 2015, Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraph 47; and 15 September 2016, Star Storage and Others, C‑439/14 and C‑488/14, EU:C:2016:688, paragraph 43). | 10 SECONDLY , THIS PROVISION FORMS PART OF THE SOCIAL OBJECTIVES OF THE COMMUNITY , WHICH IS NOT MERELY AN ECONOMIC UNION , BUT IS AT THE SAME TIME INTENDED , BY COMMON ACTION , TO ENSURE SOCIAL PROGRESS AND SEEK THE CONSTANT IMPROVEMENT OF THE LIVING AND WORKING CONDITIONS OF THEIR PEOPLES , AS IS EMPHASIZED BY THE PREAMBLE TO THE TREATY .
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866,218 | 137. It has already been held that holdings in a company which are not acquired with a view to the establishment or maintenance of lasting and direct economic links between the shareholder and that company and do not allow the shareholder to participate effectively in the management of that company or in its control cannot be regarded as direct investments ( Test Claimants in the FII Group Litigation , paragraph 196). Since the legislation under examination in the context of the present question concerns only holdings of less than 10% of the share capital of the company making the distribution, it must be held not to fall within the scope ratione materiae of Article 64(1) TFEU. | 44. It should be observed in that regard that the Court has consistently held that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 95). | 0 |
866,219 | 34. It should be borne in mind that, in determining the scope of a provision of Community law, its wording, context and objectives must all be taken into account (Case C-162/91 Tenuta il Bosco [1992] ECR I-5279, paragraph 11; Case C-315/00 Maierhofer [2003] ECR I-563, paragraph 27; and Case C-321/02 Harbs [2004] ECR I-7101, paragraph 28). | 17. Secondly, the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, inter alia, Commission v Ireland , paragraph 52; Case C-150/99 Stockholm Lindöpark [2001] ECR I-493, paragraph 25; and Sinclair Collis , paragraph 23). As the Advocate General rightly states at point 37 of his Opinion, the requirement of strict interpretation does not mean, however, that the terms used to specify exemptions should be construed in such a way as to deprive the exemptions of their intended effect. | 0 |
866,220 | 27. In that connection, it must first of all be pointed out that the Commission’s suggestions cannot bind the Court and merely constitute a useful point of reference (see Case C‑278/01 Commission v Spain [2003] ECR I‑14141, paragraph 41 and the case-law cited). Similarly, while guidelines such as those in the notices of the Commission do not bind the Court, they do help to ensure that the Commission acts in a manner which is transparent, foreseeable and consistent with legal certainty (see, to that effect, Case C‑304/02 Commission v France [2005] ECR I‑6263, paragraph 85, and Case C‑177/04 Commission v France [2006] ECR I‑2461, paragraph 70). | 51. It remains necessary to ascertain whether the measure is necessary and proportionate in relation to the objective of protecting human health. | 0 |
866,221 | 65. However, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (Case C‑187/00 Kutz-Bauer [2003] ECR I‑2741, paragraph 52, and Schönheit and Becker , paragraph 83). | 52. However, although in preliminary ruling proceedings it is for the national court to establish whether such objective reasons exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see Hill and Stapleton , cited above, paragraph 36, and Seymour-Smith and Perez , cited above, paragraph 68). | 1 |
866,222 | 37. In that regard, firstly, it must be pointed out, on the one hand, that, for the purposes of the application of EU competition law, an undertaking is any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. On the other, any activity consisting in offering goods and services on a given market is an economic activity (see judgment in Compass-Datenbank , C‑138/11, EU:C:2012:449, paragraph 35). | 58. The national legislation must, however, clearly delimit the use made of that option of derogation, so as to make it possible to determine the situations in which the derogation applies and those in which Regulation No 1191/69 applies. | 0 |
866,223 | 35. If a tax effectively constitutes an integral part of an aid measure within the meaning of Article 87(1) EC, disregard on the part of the national authorities of the obligations arising from Article 88(3) EC affects not only the lawfulness of the aid measure but also that of the tax which constitutes the method of financing it (see Enirisorse , paragraphs 43 to 45). | 65
It follows from all of the preceding considerations that the transfer of an asylum seeker within the framework of the Dublin III Regulation can take place only in conditions which preclude that transfer from resulting in a real risk of the person concerned suffering inhuman or degrading treatment, within the meaning of Article 4 of the Charter. | 0 |
866,224 | 41 First of all, the Commission has not denied that the applicant is individually concerned. Having regard to the circumstances of the case, the Court considers that only the question whether the contested decision is of direct concern to the applicant need be examined. | 15 Thus, that legislation, the effect of which is to limit the commercial freedom of traders irrespective of the actual characteristics of the product referred to, concerns the selling arrangements of certain goods, inasmuch as it prohibits the sale, other than exclusively by pharmacies, of processed milk for infants and thus generally determines the points of sale where they may be distributed. | 0 |
866,225 | 22. Article 253 EC provides, in particular, that decisions adopted by the Commission are to state the reasons on which they are based. The obligation to give reasons for a decision adversely affecting the addressee is intended to enable the Court to review the legality of the decision and to give the person concerned details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested (see, in particular, Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22). | 49. Article 46(1) EC allows inter alia restrictions on the freedom of establishment that are justified on grounds of public health (see, to that effect, Hartlauer , paragraph 46). | 0 |
866,226 | 34. Article 22(1) of the Sixth Directive provides only that there is an obligation on taxable persons to state when their activity commences, changes or ceases, but that provision in no way authorises Member States, in the event of such a declaration not being submitted, to defer the exercise of the right to deduct until the time at which taxable transactions actually begin to be carried out on a regular basis, or to deprive the taxable person of that right (see Joined Cases C‑110/98 to C‑147/98 Gabalfrisa and Others [2000] ECR I‑1577, paragraph 51, and Case C‑385/09 Nidera Handelscompagnie [2010] ECR I‑0000, paragraph 48). | 104. In the present case, the net revenue from the charge on advertising companies is used wholly and exclusively to finance radio broadcasting aid and therefore has a direct impact on the amount of that aid. While it is true that the aid is allocated by the FSER Committee, it is not disputed that that body does not have the power to allocate the funds available for purposes other than that of such aid. | 0 |
866,227 | 42. It must be borne in mind that, in accordance with settled case-law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. That concept must be understood as designating an economic unit even if in law that unit consists of several natural or legal persons. When such an economic entity infringes the competition rules, it is for that entity, according to the principle of personal responsibility, to answer for that infringement (Case C-90/09 P General Química and Others v Commission [2011] ECR I-1, paragraphs 34 to 36 and case-law cited, and Case C-521/09 P Elf Aquitaine v Commission [2011] ECR I-8947, paragraph 53). | 26 FINALLY , THE FRENCH GOVERNMENT IS WRONG TO CONTEND THAT THE DIFFERENCE OF TREATMENT IN QUESTION IS DUE TO THE DOUBLE-TAXATION AGREEMENTS . THOSE AGREEMENTS DO NOT DEAL WITH THE CASES HERE AT ISSUE AS DEFINED ABOVE . MOREOVER , THE RIGHTS CONFERRED BY ARTICLE 52 OF THE TREATY ARE UNCONDITIONAL AND A MEMBER STATE CANNOT MAKE RESPECT FOR THEM SUBJECT TO THE CONTENTS OF AN AGREEMENT CONCLUDED WITH ANOTHER MEMBER STATE . IN PARTICULAR , THAT ARTICLE DOES NOT PERMIT THOSE RIGHTS TO BE MADE SUBJECT TO A CONDITION OF RECIPROCITY IMPOSED FOR THE PURPOSE OF OBTAINING CORRESPONDING ADVANTAGES IN OTHER MEMBER STATES .
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866,228 | 34. In order to consider the substance of the appellant’s grounds of appeal against that judgment, it should, in the first place, be pointed out that, according to Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the General Court may not be changed in the appeal. The Court’s jurisdiction in an appeal is confined to a review of the findings of law on the pleas argued before the General Court. A party may not, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, since to do so would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (see, to that effect, in particular Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 59; Case C‑68/05 P Koninklijke Coöperatie Cosun v Commission [2006] ECR I‑10367, paragraph 96; and Case C‑564/08 P SGL Carbon v Commission [2009] ECR I‑0000, paragraph 22). | 23 Where accommodation in the hotel sector (as a taxable transaction) is distinguished from the letting of dwelling accommodation (as an exempted transaction) on the basis of its duration, that constitutes an appropriate criterion of distinction, since one of the ways in which hotel accommodation specifically differs from the letting of dwelling accommodation is the duration of the stay. In general, a stay in a hotel tends to be rather short and that in a rented flat fairly long. | 0 |
866,229 | 92. However, the Court has held that such a restriction can be justified in the light of EU law if it is based on objective public interest considerations independent of the nationality of the persons concerned and if it is proportionate to the legitimate objective pursued by the provisions of national law (see Joined Cases C-11/06 and C-12/06 Morgan and Bucher [2007] ECR I-9161, paragraph 33, and Commission v Hungary , paragraph 88). | 43. Even though lubricating oils used other than as motor fuels or as heating fuels fall within the definition of ‘energy products’ for the purposes of Article 2(1)(b) of Directive 2003/96, they are explicitly excluded from the scope of that directive by the first indent of Article 2(4)(b) thereof and therefore are not covered by the harmonised excise duty arrangements. | 0 |
866,230 | 46. It should be noted in this connection that, according to settled case-law, medical services supplied for consideration fall within the scope of the provisions on the freedom to provide services (see, inter alia, Case C‑158/96 Kohll [1998] ECR I‑1931, paragraph 29, and Case C‑173/09 Elchinov [2010] ECR I‑0000, paragraph 36), there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, paragraph 41; Case C‑385/99 Müller‑Fauré and van Riet [2003] ECR I‑4509, paragraph 38; Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 86; and Commission v France , paragraph 30). | 32. It also appears that the economic logic of the allowance trading scheme consists in ensuring that the reductions of greenhouse gas emissions required to achieve a predetermined environmental outcome take place at the lowest cost. By allowing the allowances that have been allocated to be sold, the scheme is intended to encourage a participant in the scheme to emit quantities of greenhouse gases that are less than the allowances originally allocated him, in order to sell the surplus to another participant who has emitted more than his allowance. | 0 |
866,231 | 26. Whilst it is true that the Court, in paragraph 46 of Zino Davidoff and Levi Strauss , referred to goods first being placed on the market outside the EEA, such a reference must be read in the light of the fact that, in the case which gave rise to that judgment, the goods in question had previously been marketed outside the EEA and had then been imported and placed on the market within it. | 111. It must be emphasised at the outset that any taking into account by OHIM of that additional evidence is in no way a ‘favour’ granted to one party or the other, but rather must result from an objective, reasoned exercise of the discretion conferred on OHIM by Article 76(2). | 0 |
866,232 | 51. It is also important that the national court should set out the precise reasons why it was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. In that connection, it is essential that the referring court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 46; Joined Cases C-338/04, C‑359/04 and C‑360/04 Placanica and Others [2007] ECR I-1891, paragraph 34; and Centro Europa 7 , paragraph 54). | 40. Thus, to begin with, Article 1(3) of the Framework Decision expressly states that the decision is not to have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU, an obligation which moreover concerns all the Member States, in particular both the issuing and the executing Member States. | 0 |
866,233 | 28. Such objectives are themselves in the public interest and are capable of justifying restrictions to the free movement of capital (see, to that effect, Konle , paragraph 40; Reisch and Others , paragraph 34; and Ospelt and Schlössle Weissenberg , paragraphs 38 and 39). In addition, as the Danish Government and the Commission of the European Communities maintain, those objectives are consistent with those of the common agricultural policy which, under Article 33(1)(b) EC, aims ‘to ensure a fair standard of living for the agricultural community’ in the working-out of which, according to Article 33(2)(a), account must be taken ‘of the particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions’ (see, to that effect, Ospelt and Schlössle Weissenberg , paragraph 40). | 58. As regards successive fixed-term employment contracts or relationships, it is clear from paragraph 56 of this judgment that the signatory parties to the Framework Agreement considered, as paragraph 7 of the general considerations thereto indicates, that the use of fixed-term employment contracts founded on objective reasons is a way to prevent abuse (see Adeneler and Others , EU:C:2006:443, paragraph 67; Angelidaki and Others , EU:C:2009:250, paragraphs 91 and 92; and the order in Vassilakis and Others , C‑364/07, EU:C:2008:346, paragraph 86). | 0 |
866,234 | 88. Although in those circumstances Article 4(2) of Directive 85/337 gives the competent authority a degree of freedom in appraising whether or not a particular project must be made subject to an assessment, it is, however, clear from settled case-law that the limits of that discretion are to be found in the obligation, set out in Article 2(1) of the directive, that all projects which are likely to have significant effects on the environment are to be subject to an assessment (see, to that effect, Case C-435/97 WWF and Others [1999] ECR I-5613, paragraphs 44 and 45; Case C-87/02 Commission v Italy , paragraphs 43 and 44; and Case C‑83/03 Commission v Italy [2005] ECR I-4747, paragraph 19). | 57. In that regard, it should be borne in mind that, in view of the discretion enjoyed by Member States as regards the organisation of their own public administrations, those States can, in principle, without acting contrary to Directive 1999/70 or the framework agreement, lay down conditions for becoming career civil servants together with conditions of employment for those civil servants, in particular where those civil servants were previously employed by those authorities under fixed-term employment contracts (see, to that effect, Rosado Santana , paragraph 76). | 0 |
866,235 | 46. Likewise, that article does not deprive the Federal Republic of Germany, which does not make entitlement to such an allowance subject to conditions of employment or insurance, of the ability to grant that allowance to ECB staff members who reside in its territory, since the possibility of such a grant arises, in actual fact, from its legislation and the relevant provisions of European Union law do not exclude that possibility (see, by analogy, Bosmann , paragraphs 28, 31 and 32, and Hudzinski and Wawrzyniak, paragraphs 48 and 49). | 51
However, an argument which was not raised at first instance does not constitute a new plea that is inadmissible at the appeal stage if it is simply an amplification of an argument already developed in the context of a plea set out in the application before the General Court (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 114 and the case-law cited). | 0 |
866,236 | 108. The tasks assigned to notaries in connection with the law of succession are thus performed under the supervision of the court, to which the notary must refer any disputes, and which moreover takes the final decision. Those tasks cannot therefore be regarded, as such, as directly and specifically connected with the exercise of official authority (see, to that effect, Thijssen , paragraph 21; Case C‑393/05 Commission v Austria , paragraphs 41 and 42; Commission v Germany , paragraphs 43 and 44; and Commission v Portugal , paragraphs 37 and 41). | 16 THE SAME CONSIDERATIONS DO NOT APPLY WHERE THE PRINCIPAL AIM OF THE AGREEMENT IS OF A DIFFERENT NATURE , IN PARTICULAR , WHERE IT CONCERNS THE OPERATION OF A BUSINESS .
| 0 |
866,237 | 55. In paragraphs 73 and 75 of the judgment under appeal, the General Court therefore cited the case-law setting out the test for imputing to a parent company the competition infringement committed by its subsidiary. It rightly held that, in order to be able to impute the conduct of a subsidiary to the parent company, the Commission cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised (see, to that effect, Case 107/82 AEG-Telefunken v Commission [1983] 3151, paragraph 50). | 45. La Cour a également jugé que le principe de protection de la confiance légitime s’oppose à ce qu’une modification de la législation nationale prive un contribuable, avec effet rétroactif, du droit dont il disposait antérieurement à ladite modification d’obtenir le remboursement d’impôts perçus en violation du droit de l’Union (voir, en ce sens, arrêt Marks & Spencer, précité, point 46). | 0 |
866,238 | 22
Under Article 17(1)(a)(i) of Directive 2008/118, excise goods may be moved under a duty suspension arrangement within the territory of the EU, in particular, as in the main proceedings, from a tax warehouse in one Member State to a tax warehouse in another Member State. It is a feature of that arrangement that the excise duty on the products covered by it is not yet payable, although the chargeable event for taxation purposes has already taken place (see, to that effect, judgment in Cipriani, C‑395/00, EU:C:2002:751, paragraph 42). Consequently, as regards the products subject to excise duty, that arrangement postpones the chargeability of excise duty until one of the conditions of chargeability is met (see, to that effect, judgment in Dansk Transport og Logistik, C‑230/08, EU:C:2010:231, paragraph 78). | 34 Those arguments cannot be accepted. | 0 |
866,239 | 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. | 48. In those circumstances, it is clear that the concept of public policy within the meaning of Article 2 of Directive 64/221 does not correspond to that in Article 96 of the CISA. According to the latter, an alert in the SIS for the purposes of refusing entry may be based on a threat to public policy where the person concerned has been convicted of an offence carrying a penalty involving deprivation of liberty of at least one year (Article 96(2)(a)), or if he has been subject to a measure based on a failure to comply with national regulations on the entry or residence of aliens (Article 96(3)). Unlike the rules laid down by Directive 64/221, as interpreted by the Court, such circumstances justify in themselves an alert irrespective of any specific assessment of the threat represented by the person concerned. | 0 |
866,240 | 46. In that context, it is not disputed that Article 41(1) of the Additional Protocol has direct effect in the Member States, so that the rights which it confers on the Turkish nationals to whom it applies may be relied on before the national courts to prevent the application of inconsistent rules of national law. That provision lays down, clearly, precisely and unconditionally, an unequivocal ‘standstill’ clause, which contains an obligation entered into by the contracting parties which amounts in law to a duty not to act (see Savas , paragraphs 46 to 54 and 71, second indent, and Joined Cases C-317/01 and C-369/01 Abatay and Others [2003] ECR I-12301, paragraphs 58, 59 and 117, first indent). | 12 IT MUST BE ACKNOWLEDGED , HOWEVER , THAT , AS THE EMPLOYMENT APPEAL TRIBUNAL PROPERLY RECOGNIZED , IT CANNOT BE RULED OUT THAT A DIFFERENCE IN PAY BETWEEN TWO WORKERS OCCUPYING THE SAME POST BUT AT DIFFERENT PERIODS IN TIME MAY BE EXPLAINED BY THE OPERATION OF FACTORS WHICH ARE UNCONNECTED WITH ANY DISCRIMINATION ON GROUNDS OF SEX . THAT IS A QUESTION OF FACT WHICH IT IS FOR THE COURT OR TRIBUNAL TO DECIDE .
| 0 |
866,241 | 26. The Court has already examined the exportability of the supplementary allowance and has ruled that to make its payment conditional on residence within French territory is incompatible with Article 10(1) of Regulation No 1408/71 (see Joined Cases 379/85 to 381/85 and 93/86 Giletti and Others [1987] ECR I-955, paragraph 17, and Case C-236/88 Commission v France [1990] ECR I-3163, paragraphs 14 and 20). | 75. It must be observed in that regard that, according to the Court’s settled case‑law, it is for the national court, as far as possible, to interpret domestic law in conformity with the requirements of European Union law (see, to that effect, Case C‑60/02 X [2004] ECR I‑651, paragraph 59, and Case C‑208/05 ITC [2007] ECR I‑181, paragraph 68). | 0 |
866,242 | 54. In the first place, it should be recalled that, according to settled case‑law, the relatively small amount of aid or the relatively small size of the undertaking which receives it do not as such exclude the possibility that intra-Community trade might be affected (see Case C-142/87 Belgium v Commission [1990] ECR I-959, ‘ Tubemeuse ’, paragraph 43; Joined Cases C‑278/92 to C‑280/92 Spain v Commission [1994] ECR I‑4103, paragraph 42, and Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I‑7747, paragraph 81). Aid of a relatively small amount is liable to affect competition and trade between Member States where there is strong competition in the sector in which the undertakings which receive it operate (see Case 259/85 France v Commission [1987] ECR 4393, paragraph 24, and Case C‑351/98 Spain v Commission [2002] ECR I‑8031, paragraph 63). | 77. Consequently, the answer to the second question is that the principle of fiscal neutrality precludes a penalty consisting in a refusal of the right to deduct if VAT is accounted for belatedly, but does not preclude the payment of default interest, provided that that penalty complies with the principle of proportionality, which it is for the national court to determine.
Costs | 0 |
866,243 | 43. According to settled case-law, reliance by a national authority on the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to one of the fundamental interests of society ( Rutili , paragraph 28; Bouchereau , paragraph 35; Orfanopoulos and Oliveri , paragraph 66; Commission v Spain , cited above, paragraph 46, and Commission v Germany , cited above, paragraph 35). | 123. On that hypothesis, which is subject to the national court’s assessment, the banking foundation must be regarded as an undertaking, in that it engages in an economic activity, notwithstanding the fact that the offer of goods or services is made without profit motive, since that offer will be in competition with that of profit-making operators. | 0 |
866,244 | 47 As regards the meaning of `legal employment' for the purposes of Article 6(1) of Decision No 1/80, it is settled case-law (Sevince, paragraph 30, Kus, paragraphs 12 and 22 and Bozkurt, paragraph 26, cited above) that legal employment presupposes a stable and secure situation as a member of the labour force of a Member State and, by virtue of this, implies the existence of an undisputed right of residence. | 24THUS , AS FROM 28 JULY 1966 , THE ITALIAN REPUBLIC WAS , WITH IMMEDIATE EFFECT , UNDER A DUTY TO ABOLISH THE PROTECTIVE MEASURES , THE INTRODUCTION OF WHICH HAD BEEN DECLARED TO THE COMMISSION ON 23 JULY 1966 . | 0 |
866,245 | 78 Nevertheless, that shows, at most, that negotiations took place between Exportkhleb and each applicant before each of the contracts was concluded. On the other hand, also taking into account the foregoing, it does not show that the price in question was the result of at least three undertakings independent of each other having competed for each of the contracts to be awarded.'
The claim for damages
36 Having rejected the pleas in law put forward in support of the applications for annulment, the Court of First Instance concluded, at paragraph 126 of the judgment under appeal, that Glencore and Compagnie Continentale had failed to prove `any wrongful conduct on the part of the Commission'. Consequently, it rejected the application for compensation for the material damage alleged.
37 The actions in Cases T-491/93, T-494/93 and T-61/98 were therefore dismissed in their entirety.
The appeals
38 By their appeals the appellants claim that the Court should set aside the judgment under appeal, annul the contested decision, refer the cases back to the Court of First Instance to rule on the claims for damages brought before it and order the Commission to pay the costs, including those at first instance.
39 The Commission contends that the appeals should be dismissed and the appellants ordered to pay the costs.
40 In support of their appeals the appellants argue, first of all, that the Court of First Instance erred in law by restricting its review to the single condition relating to observance of the principle of free competition in concluding the contracts and by finding that the riders to the contracts were concluded in breach of that condition. Next, they complain that the Court failed to apply Article 68(1) of its Rules of Procedure by failing to summon witnesses. Lastly, they maintain that the Court was wrong to deny them the damages they sought by way of compensation.
Restriction of the review to the condition relating to free competition
Arguments of the parties
41 The appellants maintain that the Court of First Instance erred in law by finding, at paragraph 57 of the judgment under appeal, that the condition relating to the price agreed and the condition concerning adherence to the precepts of free competition in the conclusion of the contracts were cumulative. They take the contrary view that the two conditions are inextricably linked, the condition relating to prices on the international markets making it possible to check whether the condition relating to free competition has been complied with, those prices reflecting, according to the applicants, the results of world-wide free and fair competition.
42 The Commission submits that it is clear from Article 5 of Regulation No 1897/92 that the two conditions are different in nature, the condition relating to free competition concerning the procedure for the conclusion of the contracts, and the condition relating to international market prices concerning the content of the contracts. The Court thus rightly considered them to be cumulative.
Findings of the Court
43 Under Article 5(1) and (2) of Regulation No 1897/92 two conditions must be satisfied in order for the Commission to be able to approve the funding of the purchases to be made by the Republics of the former Soviet Union and the supply of the goods to them. Article 5 requires that `the contract [is] awarded following a procedure guaranteeing free competition' and that `the contract offers the most favourable terms of purchase in relation to the price normally obtained on the international markets'.
44 As has been pointed out by the Commission and by the Advocate General, in point 50 of his Opinion, it is clear from the wording of Article 5(1) and (2) of Regulation No 1897/92 that, by contrast with the condition relating to international market prices, the condition relating to free competition must be understood as a procedural, rather than a substantive rule.
45 Thus, having rightly taken the view that the two conditions mentioned in paragraph 43 of the present judgment were cumulative, the Court of First Instance was entitled to restrict its review to the single condition relating to free competition.
46 The first plea in law must therefore be rejected as unfounded.
The findings of the Court of First Instance on observance of the principle of free competition
Arguments of the parties
47 The appellants complain that the Court of First Instance found that it had not been shown that the Commission had made any error in concluding that the principle of free competition had not been observed when the riders to the contracts were concluded.
48 This plea has four parts.
49 First of all, according to the appellants, the Court was wrong to find, at paragraph 68 of the judgment under appeal, that the condition relating to observance of the principle of free competition required, for each contract, that offers be submitted from at least three independent undertakings. Neither Decision 91/658 nor Regulation No 1897/92 imposes such a requirement.
50 The Commission, on the other hand, submits that that requirement is indeed set out in Article 5(1) of Regulation No 1897/92, the seventh indent of Article 7 of the Memorandum of Understanding and Clause 5.1(a), read together with Schedule 2-A, of the loan agreement.
51 Secondly, the appellants argue that the Court of First Instance erred in holding, at paragraph 67 of the judgment under appeal, that `[t]he legality of the decision must be assessed in the light of all the rules needing to be complied with by the Commission in the matter, including those relating to the agreements concluded with the Russian authorities'. To make such an assertion is tantamount to making contractual conditions contained in unpublished documents capable of operating against third parties.
52 According to the Commission, it was for the Court of First Instance to make an objective assessment of the legality of the contested decision in the light of all the rules needing to be complied with by the Commission, including those contained in the Memorandum of Understanding.
53 Thirdly, the appellants complain that the Court failed to take account of the Commission's administrative practice and the obligations arising therefrom and of the rights of the defence. They maintain that the Commission ought, in accordance with its administrative practice, to have requested from them other documents in addition to the amended contracts and ought to have conducted a more thoroughgoing enquiry, rather than simply wait passively for information to be supplied to it.
54 The Commission maintains that this plea, unconnected with any issue of public policy, was not put forward at first instance and must therefore be regarded as a new plea and rejected as inadmissible. In any event, the appellants have failed to show in what way the Commission departed from its usual administrative practice or failed to have regard for the rights of the defence.
55 Fourthly, the appellants argue that the Court of First Instance's evaluation of the evidence of observance of the principle of free competition was inaccurate. The Court ought to have taken account of the particular characteristics of the tenders at issue, which were needed to answer an emergency. The requirements to be filled were so enormous that no single trader could ever have satisfied them. The riders ought therefore to have been regarded as parallel to and connected with the contracts, rather than separate from them as the Court found in paragraphs 68 and 74 of the judgment under appeal. Exportkhleb did indeed solicit offers from more than three suppliers: it called eleven cereal traders, all of them competing in the wheat market, to a meeting on 22 and 23 February 1993 in Brussels. Seven of the eleven put forward an offer, five of those entered into simultaneous contracts with Exportkhleb and four traders refrained from making any offer, for reasons unknown. Lastly, Exportkhleb managed to ensure that the riders to the contracts were concluded at the lowest of the prices offered by those traders. All of the foregoing is evidence that there was free competition. That being so, the appellants take the view that the Court of First Instance ought to have inferred from the telefax sent by Exportkhleb to the Commission on 9 March 1993, which mentioned that seven offers had been received from cereal traders as a result of invitations addressed to eleven traders, that the condition relating to free competition had been satisfied.
56 According to the Commission, it is clear from paragraph 74 of the judgment under appeal that the Court of First Instance reviewed the telefax of 9 March 1993 thoroughly and concluded that it provided `no proof that each rider was concluded after competing offers had been solicited from at least three undertakings independent of each other'.
Findings of the Court
57 As regards the obligation to have competing offers from at least three undertakings in order to ensure compliance with the condition relating to free competition, suffice it to observe that that condition is explicitly set out in Article 5(1) of Regulation No 1897/92: `The contract [must be] awarded following a procedure guaranteeing free competition. To this end, the purchasing organisations of the Republics shall, when selecting supplier firms within the Community, seek at least three offers from firms independent of each other and shall, when selecting supplier firms in the non-Community supplier countries, seek at least three offers from firms independent of each other ...'.
58 In this case, however, at paragraph 68 of the judgment under appeal, the Court of First Instance found, in the exercise of its exclusive jurisdiction, that `[t]he riders concluded with the various Community undertakings constitute, in relation to one another, specific contracts, each of them requiring the Commission's authorisation'. It follows that the Court was right to hold that, for each of the contracts, three independent offers had to be sought and, as it found at paragraph 74 of the judgment under appeal, that had not been the case.
59 The first part of the second plea must therefore be dismissed as unfounded.
60 As regards the consideration given by the Court of First Instance, in the context of its review of the legality of the contested decision, to the contracts concluded with the Russian authorities, it is evident that the obligations arising from the Memorandum of Understanding, or even from the loan agreement, themselves constitute the implementation of Decision 91/658 and Regulation No 1897/92, both of which have been published. The conditions relating to international market prices and free competition, which are at the centre of the present dispute, are set out in Article 5 of Regulation No 1897/92.
61 Consequently, the second part of the second plea must also be rejected as being of no effect.
62 As regards the complaint that the Court of First Instance failed to check whether the Commission had followed its usual administrative practice and had had regard for the rights of the defence, suffice it to observe that that complaint was not raised at first instance. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a dispute of wider ambit than that which came before the Court of First Instance. In an appeal the Court's jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance (see, inter alia, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, and Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 62).
63 Consequently, the third part of the second plea must be rejected as inadmissible.
64 Coming to the fourth part of the second plea, it is appropriate to point out that the appellants seek by their arguments to challenge the determination and assessment of the facts which led the Court of First Instance to find that the Commission was entitled to take the view that the condition relating to observance of the precepts of free competition had not been satisfied.
65 Under Article 225 EC and the first paragraph of Article 51 of the EC Statute of the Court of Justice the latter thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 24). That appraisal does not therefore constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject as such to review by the Court of Justice.
66 In the present case the Court of First Instance began by finding, at paragraphs 69 and 70 of the judgment under appeal, that the telex sent by Exportkhleb to the appellants inviting them to attend a meeting in Brussels on 22 and 23 February 1993, `which was worded in a general way and which did not state, in particular, the quantities to be supplied or the delivery terms', could not be regarded as proof that each undertaking, prior to concluding the riders, had been required to compete with at least two undertakings independent of each other.
67 Next, the Court noted, at paragraph 71 of the judgment under appeal, that extracts from the trade press produced by the appellants also failed to provide that proof.
68 Lastly, as regards the telefax which Exportkhleb sent to the Commission on 9 March 1993 in order to inform the Commission of the changes made to the contracts, the Court of First Instance held, at paragraph 74 of the judgment under appeal, that that too failed to show that each rider had been concluded after competing offers had been solicited from at least three undertakings independent of each other. In this connection, the Court held that `[i]n respect of each contract, mention was made only of the bid submitted by the undertaking to which the contract was awarded and the terms agreed following the negotiations between Exportkhleb and the undertaking in question. In relation to each of those contracts, no indication is given of at least two other responses, even negative ones, having been given to the invitations to submit offers. The telefax merely states that each undertaking had concluded with Exportkhleb a contract corresponding to the tonnage still to be delivered by it as at the date of the meeting in Brussels. In actual fact, although offers were indeed annexed to the telefax of 9 March 1993, these were separate offers for separate contracts, and not for one and the same contract.'
69 The Court of First Instance also stated, at paragraph 78 of the judgment under appeal, that although the price agreed with Exportkhleb was the lowest offered, that shows, at most, that `negotiations took place between Exportkhleb and each applicant before each of the contracts was concluded'. It does not show that the price was `the result of at least three undertakings independent of each other having competed for each of the contracts to be awarded'.
70 The appellants have thus failed to show in what way those findings indicate that the clear sense of the evidence submitted to the Court was distorted.
71 Consequently, the fourth part of the second plea must also be rejected as inadmissible.
72 In view of the foregoing, the second plea must be rejected in its entirety.
Infringement of Article 68(1) of the Rules of Procedure of the Court of First Instance
Arguments of the parties
73 The appellants maintain that the Court of First Instance infringed Article 68(1) of its Rules of Procedure by failing to summon witnesses such as Exportkhleb or one or more of the traders who attended the meeting in Brussels on 22 and 23 February 1993. Had it heard witness evidence, the Court would have been in a position to see that those traders had been competing with a considerable number of other traders.
74 The Commission argues that there is no indication in the documents before the Court that the appellants asked the Court of First Instance to call witnesses. In any event, the appellants failed to state precisely about what facts and for what reasons the witnesses should be examined, as is required by the third subparagraph of Article 68(1) of the Rules of Procedure of the Court of First Instance.
75 The Commission adds that Article 68(1) confers a discretion on the Court of First Instance in deciding whether or not it is appropriate to call witnesses. Its decision is amenable to challenge in the context of an appeal only if it can be shown that not calling witnesses was manifestly unreasonable.
Findings of the Court
76 Under Article 68(1) of the Rules of Procedure of the Court of First Instance:
`The Court of First Instance may, either of its own motion or on application by a party, and after hearing the Advocate General and the parties, order that certain facts be proved by witnesses. The order shall set out the facts to be established.
The Court of First Instance may summon a witness of its own motion or on application by a party or at the instance of the Advocate General.
An application by a party for the examination of a witness shall state precisely about what facts and for what reasons the witness should be examined.'
77 It must be pointed out, first, that the Court of First Instance cannot be required to call witnesses of its own motion, since Article 66(1) of its Rules of Procedure makes clear that it is to prescribe such measures of inquiry as it considers appropriate by means of an order setting out the facts to be proved (see Baustahlgewebe v Commission, cited above, paragraph 77). The Court of First Instance is thus the sole judge of whether it is necessary to supplement the information available to it concerning the cases before it (see, inter alia, Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 19).
78 Moreover, whether or not the evidence before it is convincing is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, as has been pointed out in paragraph 65 of the present judgment, except where the clear sense of the evidence submitted has been distorted or the substantive inaccuracy of the Court of First Instance's findings is apparent from the documents in the case-file (Ismeri Europa v Court of Auditors, cited above, paragraph 19). | 18 It must therefore be stated in reply to the first part of the second question that the term "matters relating to tort, delict or quasi-delict" within the meaning of Article 5 ( 3 ) of the Convention must be regarded as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a "contract" within the meaning of Article 5 ( 1 ). | 0 |
866,246 | 25. The Court has stated in this respect that in view of the establishment of citizenship of the Union and the interpretation in the case-law of the right to equal treatment enjoyed by citizens of the Union, it was no longer possible to exclude from the scope of Article 39(2) EC – which expresses the fundamental principle of equal treatment, guaranteed by Article 12 EC – a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State (see Collins , paragraph 63, and Case C-258/04 Ioannidis [2005] ECR I-8275, paragraph 22). | 85. Il y a lieu de rappeler, à titre liminaire, que la procédure prévue à l’article 260, paragraphe 2, TFUE a pour objectif d’inciter un État membre défaillant à exécuter un arrêt en manquement et, par‑là, d’assurer l’application effective du droit de l’Union et que les mesures prévues par cette disposition, à savoir l’astreinte et la somme forfaitaire, visent toutes les deux ce même objectif (voir arrêt Commission/Grèce, C‑369/07, EU:C:2009:428, point 140). | 0 |
866,247 | 41. In that regard, it should be noted in particular that, according to the case-law of the Court, it is undeniable that, depending on the circumstances, certain concerns may justify the retention by Member States of a degree of influence within undertakings that were initially public and subsequently privatised, where those undertakings are active in fields involving the provision of services in the public interest or strategic services (Case C-463/00 Commission v Spain [2003] ECR I-4581, paragraph 66, and the case-law cited). | 49. As regards, first, the responsibility of central management, the latter must, in accordance with Article 4(1) of the Directive, create the conditions and means necessary for the setting up of a European Works Council. | 0 |
866,248 | 71
It should also be noted that the system of judicial review of Commission decisions relating to proceedings under Articles 101 TFEU and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (judgment in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 42). | 36. In establishing a harmonised legal framework for copyright, Directive 2001/29 is based on the same principle, as evidenced by recitals 4, 9 to 11 and 20 in the preamble thereto. | 0 |
866,249 | 67. As regards the second part of this limb of the ground of appeal, which relates to the statement of reasons for the refusal to grant the application for production of documents, it should be observed that it is for the Community judicature to decide, in the light of the circumstances of the case and in accordance with the provisions of the Rules of Procedure on measures of inquiry, whether it is necessary for a document to be produced. With regard to the Court of First Instance, it follows from Article 49 read in conjunction with Article 65(b) of its Rules of Procedure that a request for production of documents is a measure of inquiry which the Court may order at any stage of the proceedings (see Case C-286/95 P Commission v ICI [2000] ECR I-2341, paragraphs 49 and 50). | 33. Quant à l’explication fournie par la République portugaise au sujet du dépassement de ce délai, selon laquelle le traitement exigé par les articles 2 et 3 de la décision 2001/720 n’avait pas encore pu être mis en œuvre en raison de difficultés liées à la taille et à la complexité du projet de construction de la nouvelle station d’épuration, il suffit de relever qu’un État membre ne saurait exciper de situations internes, telles les difficultés d’application apparues au stade de l’exécution d’un acte communautaire, pour justifier le non-respect des obligations et des délais résultant des normes du droit communautaire. Il s’ensuit qu’un État membre ne peut donc invoquer des difficultés techniques pour se soustraire aux obligations découlant du droit communautaire (arrêt du 9 novembre 2006, Commission/Royaume‑Uni, C‑236/05, Rec. p. I‑10819, points 28 et 29). | 0 |
866,250 | 32. The Court has accordingly ruled that, unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage (see, to that effect, judgments in O’Flynn , C‑237/94, EU:C:1996:206, paragraph 20; Meints , C‑57/96, EU:C:1997:564, paragraph 45; Borawitz , EU:C:2000:485, paragraph 27; and Celozzi , EU:C:2007:35, paragraph 26). | 40. The governments which submitted observations to the Court claim that such a justification must be allowed in respect of the legislation here at issue in the main proceedings. | 0 |
866,251 | 90. In that respect, it must be noted that, although the Court of Justice dismissed that appeal, it was, as the Court of Justice states in paragraph 52 of its judgment in Commission v Artegodan and Others , on the ground that, without it being necessary to rule on the other pleas and arguments put forward by the Commission, the Commission lacked the competence to adopt the contested decision and, accordingly, that decision had to be annulled. | 30. The betting transaction referred to in Article 13(B)(f) is characterised by the offer to customers placing bets of a chance of winning in consideration for accepting the risk of having to pay for winnings ( United Utilities , paragraph 26). | 0 |
866,252 | 14 It must be held that a national procedural rule, such as the one described above, is liable to affect the economic activity of traders from other Member States on the market of the State in question. Although it is, as such, not intended to regulate an activity of a commercial nature, it has the effect of placing such traders in a less advantageous position than nationals of that State as regards access to its courts. Since Community law guarantees such traders free movement of goods and services in the common market, it is a corollary of those freedoms that they must be able, in order to resolve any disputes arising from their economic activities, to bring actions in the courts of a Member State in the same way as nationals of that State (C-43/95 Data Delecta and Forsberg [1996] ECR I-4661, paragraph 13). | 70. Fourth, it should be recalled that the right of deduction provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and in principle may not be limited. The right to deduct is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, in particular, Case C-62/93 BP Supergas [1995] ECR I‑1883, paragraph 18; Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 43; and Joined Cases C-439/04 and C-440/04 Kittel and Recolta Recycling [2006] ECR I-6161, paragraph 47). | 0 |
866,253 | 60 Furthermore, the Court of First Instance, in order to reject the complaints concerning breach of the provisions relating to the procedure for adoption of Regulation No 404/93, reiterated, at paragraphs 77 and 78 of the contested judgment, the grounds appearing at paragraphs 27 to 43 of the judgment in Case C-280/93 Germany v Council, and it is apparent from those paragraphs that they were in response solely to the argument that there had been a breach of the Commission's right of initiative, a failure to give reasons and lack of further consultation of the Parliament. | 21 Finally, the mere fact that the CCMSA is a non-profit-making body does not deprive the activity which it carries on of its economic character, since, having regard to the features referred to in paragraph 17, that activity may give rise to conduct which the competition rules are intended to penalize. | 0 |
866,254 | 22. In the absence of indications in the Sixth Directive, it is for the Member States to establish, within the limits of compliance with EU law and the principles on which the common system of VAT is based, methods and rules governing the calculation of the deductible proportion of input VAT. In exercising that power, the Member States are obliged to take account of the purpose and general system of that directive (see, to that effect, Case C‑437/06 Securenta [2008] ECR I‑1597, paragraphs 34 and 35). | 35. In that regard, the Court has held that, where the Sixth Directive does not contain the guidance necessary for such precise calculations, the Member States are required to exercise that power, having regard to the aims and broad logic of the Directive (see, to that effect, Case C‑72/05 Wollny [2006] ECR I‑8297, paragraph 28). | 1 |
866,255 | 17. A judgment delivered on a reference for a preliminary ruling is such as to have effects on legal relationships which arose before its delivery. It follows, in particular, that a rule of Community law so interpreted must be applied by an administrative body within the sphere of its competence even to legal relationships which arose and were formed before delivery of the Court’s judgment ruling on the question referred to it (see, to this effect, Kühne & Heitz , cited above, paragraph 22). In the absence of Community rules on applications for the repayment of taxes, it is for the domestic legal system of each Member State to lay down the conditions under which such applications may be made; those conditions must observe the principles of equivalence and effectiveness, that is to say, they must not be less favourable than those relating to similar claims founded on provisions of domestic law or framed so as to render virtually impossible the exercise of rights conferred by the Community legal order (see, to this effect, Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12, and Case C-147/01 Weber’s Wine World and Others [2003] ECR I-11365, paragraph 103). | 25FURTHERMORE , REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ) P . 159 ) STATES IN ARTICLE 93 ( 1 ) THAT THE AMOUNT OF BENEFITS PROVIDED UNDER ARTICLE 22 OF THE REGULATION ' ' SHALL BE REFUNDED BY THE COMPETENT INSTITUTION TO THE INSTITUTION WHICH PROVIDED THE SAID BENEFITS AS SHOWN IN THE ACCOUNTS OF THAT INSTITUTION ' ' .
| 0 |
866,256 | 41. As Mr and Mrs Ettwein are ‘self-employed frontier workers’ within the meaning of Article 13(1) of Annex I to the Agreement, the principle of equal treatment stated in Article 15(1) of that annex applies to them also (see Case C-506/10 Graf and Engel [2011] ECR I-9345, paragraph 23 and the case-law cited), the ‘host country’ within the meaning of the latter provision being, in their situation, the Federal Republic of Germany. | 45. Although the Member States are generally responsible for fixing the use-by date of products covered by Directive 92/46, they must refrain from taking any measures liable seriously to compromise achievement of the result prescribed by the directive. | 0 |
866,257 | 30 More particularly concerning the review of Member States' compliance with their obligations under Articles 92 and 93 of the Treaty, the national courts and the Commission fulfil complementary and separate roles, as the Court pointed out in its judgment in Case C-39/94 SFEI and Others v La Poste [1996] ECR I-3547, paragraph 41 et seq.). | 37. The Court accordingly held, at paragraphs 30 and 31 of the judgment in Securenta , that the input VAT relating to expenditure incurred by a taxable person cannot give rise to a right to deduct in so far as it relates to activities which, in view of their non‑economic nature, do not come within the scope of the directive and that, where a taxable person simultaneously carries out economic activities, whether taxed or exempt, and non‑economic activities outside the scope of the directive, deduction of the input VAT relating to expenditure is allowed only to the extent to which that expenditure may be attributed as an output to the economic activity of the taxable person. | 0 |
866,258 | 58. In that respect, it must be borne in mind that the Member States are required, within the bounds of the freedom left to them by the third paragraph of Article 249 EC, to choose the most appropriate forms and methods to ensure the effectiveness of directives, in the light of their objective (see Case 48/75 Royer [1976] ECR 497, paragraph 75, and Joined Cases C-58/95, C-75/95, C-112/95, C‑119/95, C-123/95, C‑135/95, C‑140/95, C-141/95, C-154/95 and C‑157/95 Gallotti and Others [1996] ECR I-4345, paragraph 14, and Case C‑212/04 Adeneler and Others [2006] ECR I-6057, paragraph 93). | 68. Le second desdits droits fondamentaux, qui est affirmé à l’article 47 de la Charte, exige que l’intéressé puisse connaître les motifs sur lesquels est fondée la décision prise à son égard soit par la lecture de la décision elle-même, soit par une communication de ces motifs faite sur sa demande, sans préjudice du pouvoir du juge compétent d’exiger de l’autorité en cause qu’elle les communique, afin de lui permettre de défendre ses droits dans les meilleures conditions possibles et de décider en pleine connaissance de cause s’il est utile de saisir le juge compétent, ainsi que pour mettre ce dernier pleinement en mesure d’exercer le contrôle de la légalité de la décision en cause (voir arrêts du 4 juin 2013, ZZ, C‑300/11, point 53 et jurisprudence citée, ainsi que Kadi II, point 100). | 0 |
866,259 | 29 The Court observes that, in the current state of Community law, social policy is a matter for the Member States (see Case C-229/89 Commission v Belgium [1991] ECR I-2205, paragraph 22). Consequently, it is for the Member States to choose the measures capable of achieving the aim of their social and employment policy. In exercising that competence, the Member States have a broad margin of discretion. | 88. S’agissant de l’imposition d’une astreinte, la Cour a jugé que cette sanction ne se justifie en principe que pour autant que perdure le manquement tiré de l’inexécution d’un précédent arrêt jusqu’à l’examen des faits par la Cour (arrêt Commission/Grèce, C‑369/07, EU:C:2009:428, point 59 et jurisprudence citée). | 0 |
866,260 | 26. Selon une jurisprudence constante de la Cour, c’est à la Commission qu’il incombe d’apprécier l’opportunité d’agir contre un État membre, les considérations qui déterminent ce choix ne pouvant affecter la recevabilité du recours (arrêt du 8 décembre 2005, Commission/Luxembourg, C‑33/04, Rec. p. I‑10629, point 66 et jurisprudence citée). | Or, cette appréciation du Tribunal n’est entachée d’aucune erreur, puisqu’elle est fondée sur la notion de cessation d’une
activité, qui implique, par elle-même, que cette activité ait été exercée antérieurement. Elle est également renforcée par
l’analyse des objectifs poursuivis par le législateur de l’Union lorsqu’il a adopté le règlement n° 1698/2005 prévoyant l’aide
à la retraite anticipée. Par cette mesure, comme le Tribunal l’a relevé aux points 45 à 47, 61 et 62 de l’arrêt attaqué, le
législateur de l’Union a souhaité encourager la retraite anticipée en agriculture dans le but d’améliorer la viabilité des
exploitations agricoles et fournir une incitation économique aux agriculteurs âgés pour qu’ils cessent leurs activités de
manière anticipée et dans des circonstances où ils ne le feraient normalement pas (voir conclusions de l’avocat général Jääskinen
dans l’affaire Soukupová, C‑401/11, EU:C:2012:658, points 32 et 33), le complément à la pension de retraite ou le revenu additionnel
n’étant que des conséquences de l’application du règlement n° 1698/2005, comme le Tribunal l’a relevé au point 47 lu en combinaison
avec le point 59 de l’arrêt attaqué. | 0 |
866,261 | 22. The second preliminary point to note is that, given the objectives of the Directive and in particular the fact that, as the second recital in the preamble to Directive 97/55 points out, comparative advertising helps to demonstrate objectively the merits of the various comparable products and thus stimulate competition between suppliers of goods and services to the consumer’s advantage, it is settled case-law that the conditions required of comparative advertising must be interpreted in the sense most favourable to it (Case C-112/99 Toshiba Europe [2001] ECR I‑7945, paragraphs 36 and 37, and Case C-44/01 Pippig Augenoptik [2003] ECR I‑3095, paragraph 42; see also Case C-59/05 Siemens [2006] ECR I-0000, paragraphs 22 to 24).
Order in which the questions are to be examined | 6 EVEN IF IT IS TRUE THAT ITALIAN DOMESTIC LAW HAS TO A LARGE EXTENT ALREADY SECURED THE OBJECTIVES OF THE DIRECTIVE , NEVERTHELESS THE POSITION REMAINS THAT THE ITALIAN REPUBLIC HAS NOT COMPLETELY COMPLIED WITH IT , WHICH IT MOREOVER DOES NOT DENY , AND IT HAS NOT NOTIFIED THE COMMISSION OF THE NATIONAL MEASURES ADOPTED . IT SHOULD BE NOTED IN THIS RESPECT THAT THE MEMBER STATES ARE OBLIGED TO ENSURE THE FULL AND EXACT APPLICATION OF THE PROVISIONS OF ANY DIRECTIVE .
| 0 |
866,262 | 138. Since its purpose is thus not to settle the question of ancillary costs, such as the cost of travel and any accommodation other than in the hospital itself, incurred by a patient authorised by the competent institution to go to another Member State to receive there treatment appropriate to his state of health, Article 22 of Regulation No 1408/71 does not make provision for, but also does not prohibit, the reimbursement of such costs. In those circumstances, it is necessary to consider whether an obligation to reimburse such costs might arise under Article 49 EC (see, by analogy, Vanbraekel , paragraph 37). | 68. According to case-law, whether there is abuse or fraudulent conduct must be examined individually on a case-by-case basis and must be based on objective evidence (see Centros , paragraphs 24 and 25, and X and Y , paragraphs 42 and 43). | 0 |
866,263 | 21 Contrary to Thierschmidt' s argument, the grounds set out by the Court in paragraphs 13 and 14 of the Ospig judgment, cited above, based on the difference between the objectives pursued by the Community rules aimed at monitoring the quantities of textile products imported from certain non-member countries and by Regulation No 1224/80 are not applicable to charges in respect of own quotas allocated to the exporter free of charge. In that case, the quota system does not entail any expense for the seller. | 21 There is, however, an exception to that principle. As the Court stated in Just, Denkavit and San Giorgio, cited above, the protection of the rights so guaranteed by the Community legal order does not require repayment of taxes, charges and duties levied in breach of Community law where it is established that the person required to pay such charges has actually passed them on to other persons (see, in particular, San Giorgio, paragraph 13). | 0 |
866,264 | 21. In that regard, it should be pointed out that temporary storage is mentioned only in Annexes II A and II B to that directive, listing waste disposal operations and waste recovery operations respectively. It is apparent from those annexes, points D 15 and R 13 thereof respectively, that temporary storage, pending collection, on the site where it is produced, is excluded from the list of operations classified as disposal operations or recovery operations in Directive 75/442. It must be defined, as the Court noted in paragraph 45 of the judgment in Lirussi and Bizzaro , as the operation preparatory to waste management within the meaning of Article 1(d) of that directive. | 72. According to that case-law, natural or legal persons satisfy the condition of individual concern only if the contested act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed (see Plaumann v Commission ; Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 36; and Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’ v Commission [2011] ECR I‑4727, paragraph 52). | 0 |
866,265 | 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
Lastly, that authority must take account of Article 6 of the Charter of Fundamental Rights of the European Union, in so far as Article 28(2) of the Dublin III Regulation provides for a limitation on the exercise of the fundamental rights to liberty and security (see, to that effect, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 49, and of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraph 36). | 0 |
866,266 | 68. The principle of transparency is stated in Articles 1 TEU and 10 TEU and in Article 15 TFEU. It enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (see Case C‑41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 39, and Case C‑28/08 P Commission v Bavarian Lager [2010] ECR I‑0000, paragraph 54). | 61 A measure which consists in excluding as a matter of principle all expenditure in respect of accommodation, hospitality, food and entertainment from the right to deduct VAT, which is a fundamental principle of the VAT system established by the Sixth Directive, although appropriate means less detrimental to that principle than the exclusion of the right of deduction in the case of certain expenditure can be contemplated or already exist in the national legal order, does not appear to be necessary in order to combat tax evasion and avoidance. | 0 |
866,267 | 93. Indeed, the Court has taken that step only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that both individuals and national authorities had been led into adopting practices which did not comply with European Union law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the Commission may even have contributed ( Grzelczyk , paragraph 53). | 41. A similar examination must therefore be carried out comparing charges applied to the undertaking in a dominant position and to its competitors for the allocation of telephone numbers. | 0 |
866,268 | 13. In that regard, the Court notes that it is settled case-law that Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against service providers who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State, where he lawfully provides similar services (see, in particular, Case C‑244/04 Commission v Germany [2006] ECR I‑885, paragraph 30). | 48. Nevertheless, should the subsidiary be a non-resident company, the losses recorded by the sub-subsidiary would be taken into account twice, first, in the form of the direct losses of that sub-subsidiary and, secondly, in the form of a provision made by the parent company for the depreciation of its holding in that subsidiary. The internal transactions would not be neutralised because the non-resident subsidiary is not subject to the tax integration regime. | 0 |
866,269 | 31. It is clear, however, from the case‑law of the Court that, in order to determine the organisations which should be recognised as ‘charitable’ for the purposes of Article 13A(1)(g) of the Sixth Directive, it is for the national authorities, in accordance with EU law and subject to review by the national courts, to take into account, in particular, the existence of specific provisions, be they national or regional, legislative or administrative, or tax or social security provisions; the public interest nature of the activities of the taxable person concerned; the fact that other taxable persons carrying on the same activities already enjoy similar recognition; and the fact that the costs of the supplies in question may be largely met by health insurance schemes or other social security bodies (see, to that effect, Kügler , paragraphs 57 and 58; Kingscrest Associates and Montecello , paragraph 53; and, by analogy, Case C‑45/01 Dornier [2003] ECR I‑12911, paragraphs 72 and 73; L.u.P. , paragraph 53; and CopyGene , paragraphs 65 and 71). | 9 In that judgment, the Court then states that Article 7(4) of the Directive is designed to secure a complete system of protection in the periods during which the survival of wild birds is particularly under threat. | 0 |
866,270 | 28. It is clear from paragraphs 43 and 44 of Bronner that, in order to determine whether a product or service is indispensable for enabling an undertaking to carry on business in a particular market, it must be determined whether there are products or services which constitute alternative solutions, even if they are less advantageous, and whether there are technical, legal or economic obstacles capable of making it impossible or at least unreasonably difficult for any undertaking seeking to operate in the market to create, possibly in cooperation with other operators, the alternative products or services. According to paragraph 46 of Bronner , in order to accept the existence of economic obstacles, it must be established, at the very least, that the creation of those products or services is not economically viable for production on a scale comparable to that of the undertaking which controls the existing product or service. | 51. It must be recalled here that the principle of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result (see, inter alia, Case 152/73 Sotgiu [1974] ECR 153, paragraph 11; Case C‑57/96 Meints [1997] ECR I‑6689, paragraph 44; and Case C‑212/99 Commission v Italy [2001] ECR I‑4923, paragraph 24). | 0 |
866,271 | 27. It is also clear from the judgments cited above in Commission v Spain , paragraph 41, and Commission v Finland , paragraph 54, that although the percentages referred to above are not legally binding, they can none the less constitute, by reason of the scientific value of the work of the ORNIS Committee and the absence before the Court of any element of scientific proof to the contrary, a basis of reference for assessing whether a derogation granted under Article 9(1)(c) of the Directive complies with that provision (see by analogy, in respect of the relevance of scientific data in the field of ornithology, Case C-3/96 Commission v Netherlands [1998] ECR I-3031, paragraphs 69 and 70, and Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 25). | 17 According to the Jackson and Cresswell judgment, cited above, the fact that a scheme of benefits is part of a national social security system, which makes national remedies in the field of social security applicable in the main proceedings, cannot exclude it from the scope of the directive. | 0 |
866,272 | 60 Although, as follows from paragraph 41 of SFEI and Others, cited above, the national courts and the Commission fulfil complementary and separate roles within the actual system of supervision of State aid established by the Treaty, the same applies, a fortiori, where what is in issue is the examination of a parafiscal charge, intended to finance an aid scheme, in the light of Treaty provisions other than those concerning State aid, with a view to remedying, if necessary, infringements of Community law which have not been confirmed in the procedure provided for under Article 93 of the Treaty. | 40. Moreover, it follows from the phrase ‘dismissals effected by an employer’, used in Article 1(1)(a) of Directive 98/59, that the concept of collective redundancies assumes, in principle, that the employer carries out or has the intention of carrying out such redundancies, although as the Advocate General has pointed out in point 81 of his Opinion, the phrase ‘on the employer’s initiative’ used in the second subparagraph of Article 1(1) implies a direct manifestation of the will of the employer consisting in taking the initiative. | 0 |
866,273 | 46. In addition, in that assessment, reference should be made exclusively to the subject-matter of the action and, where an applicant seeks only the partial annulment of an act, it is solely any implementing measures which that part of the act may entail that must, as the case may be, be taken into consideration (judgment in Telefónica v Commission , C‑274/12 P, EU:C:2013:852, paragraph 31, and order in Forgital Italy v Council , C‑84/14 P, EU:C:2015:517, paragraph 52). | 28 That argument likewise cannot justify the contested provisions . Even if an increase larger than the Community reserve could not be contemplated without the risk of disturbing the balance of the milk market, the fact remains that it would have been sufficient to reduce the reference quantities of the other producers proportionally by a corresponding amount, so as to be able to allocate larger reference quantities to the producers who gave an undertaking under Regulation No 1078/77 . | 0 |
866,274 | 100. The second of those fundamental rights, which is affirmed in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining disclosure of those reasons, without prejudice to the power of the court having jurisdiction to require the authority concerned to disclose that information, so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (see the judgment of 4 June 2013 in Case C‑300/11 ZZ [2013] ECR I‑0000, paragraph 53 and case-law cited). | 49 THE FAILURE TO COMMUNICATE A DUTCH VERSION OF THE DRAFT MINUTES THUS CONSTITUTES AN IRREGULARITY IN DRAWING UP THAT DOCUMENT WHICH IS CAPABLE OF AFFECTING ITS VALIDITY . | 0 |
866,275 | 31. In this respect, the fact that one of the two elements is effected in the customs territory of the Community and the other one outside that territory is of no relevance for determining the transaction value (see, to that effect, Case C-116/89 BayWa [1991] ECR I-1095, paragraph 15). | 29. The German Government submits that the national legislation at issue in the main proceedings does not amount to a restriction on the movement of capital. First, it submits that, since the assets situated in France were acquired initially by the father of Mr Jäger before 1 June 1990, the date by which Directive 88/361 had to be transposed into national law, the rights deriving from that directive or from the Treaty could not be relied on directly by the purchaser of the assets concerned. Secondly, according to the German Government, such a purchaser cannot be deterred by th e effects of legislation such as that at issue in the main proceedings, which does not in any way affect the person in question but, at the very most, his heirs. For that reason, the effects of such legislation are too indirect to be capable of constituting a restriction on the movement of capital. | 0 |
866,276 | 44. It is thus clear from the case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the public interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49; Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55; and Test Claimants in the FII Group Litigation , paragraph 46). | 55. However, neither Dir ective 2003/9 nor Directive 2005/85 carries out, at the present stage, a harmonisation of the grounds on which the detention of an asylum seeker may be ordered. As the German Government pointed out, the proposal of an exhaustive list setting out those grounds was abandoned during the negotiations which preceded the adoption of Directive 2005/85 and it is only in the context of the recasting of Directive 2003/9, which is in the process of being adopted, that such a list is intended to be established at European Union level. | 0 |
866,277 | 47. In that regard, it is for the competent national authorities to show, first, that their legislation is necessary in order to attain the objective pursued and, second, that the legislation is in conformity with the principle of proportionality (see, to that effect, Case C-54/05 Commission v Finland [2007] ECR I‑2473, paragraph 39, and Case C‑297/05 Commission v Netherlands [2007] ECR I‑7467, paragraph 76). | 33
As regards the rules ensuring a high level of protection of human health, it is clear from Articles 3, 10 and 11 of that regulation that such a product is to be safe for human health, that its safety must be assessed on the basis of the relevant information and that the safety report must be drafted and included in the cosmetic product information file. | 0 |
866,278 | 99 Nevertheless, the Court has consistently held that the condition in question implies that the national court must enquire whether the persons liable might not reasonably have been able to detect the error made by the competent customs authorities, having regard to the nature of the error, the professional experience of the traders concerned and the degree of care which they exercised (see the judgments in Deutsche Fernsprecher, cited above, paragraph 24; in Case C-371/90 Beirafrio v Alfândega do Porto [1992] ECR I-2715, paragraph 21; in Case C-187/91 Belovo [1992] ECR I-4937, paragraph 17; and in Hewlett Packard France, cited above, paragraph 22). | 23 In that connection, it should be made clear that the temporary maintenance of different retirement ages according to sex may necessitate the subsequent adoption, after expiry of the period prescribed for transposition of the Directive, of measures indissociable from that derogation and also amendments to such measures. | 0 |
866,279 | 73. This is indeed borne out by recital 17 in the preamble to Directive 93/83, according to which the right holders concerned must be ensured an appropriate remuneration for the communication to the public by satellite of their works that takes account of all aspects of the broadcast, such as its actual audience and its potential audience (see, to this effect, Football Association Premier League and Others , paragraphs 108 and 110). | 19 The first point to note is that, in principle, if the outcome of subsequent verification proves negative the normal consequence is for the importing State to demand payment of the customs duties not paid at the time of importation. | 0 |
866,280 | 39
Pursuant to the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, the Court does not, in principle, have jurisdiction with respect to the provisions relating to the CFSP or with respect to acts adopted on the basis of those provisions (judgments of 24 June 2014 in Parliament v Council, C‑658/11, EU:C:2014:2025, paragraph 69, and 12 November 2015 in Elitaliana v Eulex Kosovo, C‑439/13 P, EU:C:2015:753, paragraph 41). | 35. The argument to the effect that the fuel is supplied to Auto Lease, since the lessee purchases the fuel in the name and at the expense of that company, which advances the cost of that property, cannot be accepted. As the Commission rightly contends, the supplies were effected at Auto Lease's expense only ostensibly. The monthly payments made to Auto Lease constitute only an advance. The actual consumption, established at the end of the year, is the financial responsibility of the lessee who, consequently, wholly bears the costs of the supply of fuel. | 0 |
866,281 | 28. The Court’s conclusion was thus that Article 221(1) of the Customs Code must be interpreted as meaning that the amount of import or export duty due can be validly communicated to the debtor by the customs authorities, in accordance with appropriate procedures, only if the amount of that duty has been entered in the accounts beforehand by the authorities (see Snauwaert and Others , paragraph 23). | 76 Admittedly, the Commission cannot, by a mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment. However, it may in its decision give reasons going beyond the requirements set out in paragraph 73 of this judgment, inter alia by indicating the figures which, especially in regard to the desired deterrent effect, influenced the exercise of its discretion when setting the fines imposed on a number of undertakings which participated, in different degrees, in the infringement. | 0 |
866,282 | 33. It is clear from settled case-law that, given the fundamental importance of the principle of equal treatment, the exception to the prohibition of discrimination on grounds of sex, provided for in Article 7(1)(a) of Directive 79/7, must be interpreted strictly (see, in particular, Case 152/84 Marshall [1986] ECR 723, paragraph 36, and Case C‑328/91 Thomas and Others [1993] ECR I‑1247, paragraph 8). That provision can apply only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and to the consequences thereof for other social security benefits (Case 151/84 Roberts [1986] ECR 703, paragraph 35; also to that effect, Case C‑303/02 Haackert [2004] ECR I‑2195, paragraph 30). That exception to the prohibition of discrimination on grounds of sex is therefore not applicable in the case of a tax concession such as that at issue in the main proceedings, which is not a social security benefit. | 50. The system of rules which the Court of Justice has worked out in relation to the non-contractual liability of the Community takes into account, inter alia, the complexity of the situations to be regulated, difficulties in the application or interpretation of the legislation and, more particularly, the margin of discretion available to the author of the act in question ( Bergaderm and Goupil v Commission , paragraph 40, and Commission v Fresh Marine , paragraph 24). | 0 |
866,283 | 97. It should be noted that, in so far as it seeks to abolish restrictions on the freedom to provide services stemming from the fact that the service provider is established in a Member State other than that in which the service is to be provided, Article 49 EC became directly applicable in the legal orders of the Member States on expiry of the transitional period and confers on individuals rights which are enforceable by them and which the national courts must protect (see, inter alia, Case 33/74 Van Binsbergen [1974] ECR 1299, paragraph 26; Case 13/76 Donà [1976] ECR 1333, paragraph 20; Case 206/84 Commission v Ireland [1986] ECR 3817, paragraph 16; and Case C‑208/05 ITC [2007] ECR I‑181, paragraph 67). | 91. In that regard, it is important to note that the circumstances in which the two organisations to which the respondents before the Bundesverwaltungsgericht respectively belonged were placed on that list cannot be assimilated to the individual assessment of the specific facts which must be undertaken before any decision is taken to exclude a person from refugee status pursuant to Article 12(2)(b) or (c) of Directive 2004/83. | 0 |
866,284 | 49. By adopting Regulation No 2988/95, and in particular the first subparagraph of Article 3(1) thereof, the EU legislature intended to establish a general limitation rule which was applicable in the area and by which it intended, first, to define a minimum period applied in all the Member States and, secondly, to waive the possibility of recovering sums wrongly received from the European Union budget after the expiry of a four-year period after the irregularity affecting the payments at issue was committed (judgment in Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 27). | 18 Although a postgraduate academic title is not usually a prerequisite for access to a profession, either as an employee or on or on a self-employed basis, the possession of such a title nevertheless constitutes, for the person entitled to make use of it, an advantage for the purpose both of gaining entry to such a profession and of prospering in it. | 0 |
866,285 | 52. Furthermore, as regards E.On’s argument that the questions submitted in the present cases concern an interpretation of European Union law that follows fairly clearly from the Court’s well-established case-law, it is to be remembered that Article 267 TFEU always allows a national court, if it considers it desirable, to refer questions of interpretation to the Court (see, to this effect, Joined Cases 28/62 to 30/62 Da Costa and Others [1963] ECR 31, 38; Case 283/81 Cilfit and Others [1982] ECR 3415, paragraph 15; and Case C-45/09 Rosenbladt [2010] ECR I-0000, paragraph 31). | 27 However, the measures which the Member States are required to take for the implementation of that provision must observe the principle of proportionality (see, in particular, Verband Sozialer Wettbewerb v Clinique Laboratories and Estée Lauder, cited above, paragraph 16). | 0 |
866,286 | 52. In that regard, materials such as those at issue in the main proceedings are not reused definitely and without prior processing as an integral part of the same process of production or use, but are substances or objects whose holders discarded them. According to Mr Niselli’s evidence, the contentious materials were then sorted, and sometimes treated, and they constitute a secondary raw material to be used in steelmaking. In such a context, they must however continue to be classified as ‘waste’ until they have actually been recycled into steel products, that is to say, until the constitution of the finished products derived from the reprocessing for which they are intended. In the earlier phases, they cannot yet be regarded as recycled, since the reprocessing has not been concluded. Conversely, subject to the case where the products obtained are in their turn abandoned, the point at which the materials in question cease to be classified as ‘waste’ cannot be fixed at an industrial or commercial stage subsequent to their reprocessing into steel products, because, from that point, they can hardly be distinguished from other steel products made from primary raw materials (see, for the particular case of recycled packaging waste, Case C‑444/00 Mayer Parry Recycling [2003] ECR I‑6163, paragraphs 61 to 75). | 29. As regards the question whether national legislation, such as the legislation at issue in the main proceedings, gives rise to a restriction which is prohibited by Article 49 EC, it should be pointed out that, again according to well-established case-law of the Court, the freedom to provide services requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where it lawfully provides similar services (see, inter alia, De Coster , paragraph 29; Joined Cases C‑544/03 and C‑545/03 Mobistar and Belgacom Mobile [2005] ECR I‑7723, paragraph 29; Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 56; and Case C‑208/05 ITC [2007] ECR I‑181, paragraph 55). | 0 |
866,287 | 77. By the second part of its third ground of appeal, Dunamenti Erőmű claims that, in any event, even if the PPA at issue contained some advantage, that advantage was repaid by means of the sale of Dunamenti Erőmű. That company adds, referring to the judgments in Banks (C‑390/98, EU:C:2001:456, paragraph 78), and Falck and Acciaierie di Bolzano v Commission (C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraph 180), that where a company which has benefited from aid has been sold at the market price, the sale price reflects the consequences of the previous aid, and it is the seller of that company that keeps the benefit of that aid. | 15 Not until the adoption of Council Regulation (EEC) No 1715/90 of 20 June 1990 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature (OJ 1990 L 160, p. 1), which entered into force on 1 January 1991, did the Community legislature undertake harmonization in this area by providing that only information concerning tariff classification is to be regarded as binding, indicating which authorities are competent to supply such information and laying down common procedures for its provision. | 0 |
866,288 | 21 No argument to the contrary can be based on Article 48(3) of the Treaty which, in the field of freedom of movement for workers within the Community, explicitly sets out, in addition to the right to accept offers actually made, the right to stay in a Member State for the purpose of employment. Article 48(3) enumerates in a non-exhaustive way certain rights benefiting nationals of Member States in the context of the free movement of workers (Case C-292/89 Antonissen [1991] ECR I-745, paragraph 13), and that freedom entails the right for Community nationals to stay in the Member States not only in order to accept offers actually made there, but also to look for employment there (Kus, paragraph 35). | 73. La condamnation au paiement d’une somme forfaitaire et la fixation du montant éventuel de cette somme doivent, dans chaque cas d’espèce, demeurer fonction de l’ensemble des éléments pertinents ayant trait tant aux caractéristiques du manquement constaté qu’à l’attitude propre à l’État membre concerné par la procédure initiée sur le fondement de l’article 260 TFUE. À cet égard, celui-ci investit la Cour d’un large pouvoir d’appréciation afin de décider de l’infliction ou non d’une telle sanction et de déterminer, le cas échéant, son montant (voir arrêt Commission/Italie, C‑196/13, EU:C:2014:2407, point 114). | 0 |
866,289 | 86 On this point, the Court has already mentioned the factors of depreciation which may be taken into account so that the flat-rate method of calculating the tax on imported used cars reflects precisely their actual depreciation and is best able to attain the objective of taxation on such cars which, making allowance for the reasonable approximations inherent in any system of that type, does not exceed the amount of the residual tax incorporated in the value of similar used vehicles already registered in the national territory (see Gomes Valente, paragraph 28). | 22 That view cannot be accepted. | 0 |
866,290 | 34 In particular, the Court has jurisdiction to interpret Article 50 of TRIPs in order to meet the needs of the courts of the Member States when they are called upon to apply national rules with a view to ordering provisional measures for the protection of rights arising under Community legislation falling within the scope of TRIPs (see Hermès, paragraphs 28 and 29). | 51. It must therefore be held that a condition such as that at issue in the main proceedings has the effect of dissuading a worker from deciding to exercise her right to parental leave, having regard to the effect which that decision could have on a period of maternity leave which interrupts that parental leave. Accordingly, such a condition undermines the effectiveness of Directive 96/34. | 0 |
866,291 | 32. Thirdly, it should be noted that domestic manufacture of motor vehicles in Bulgaria is not a condition for a finding that a market for used vehicles exists in that Member State. A product becomes a domestic product as soon as it has been imported and placed on the market. Imported used cars and those bought locally constitute similar or competing products. Article 110 TFEU therefore applies to the registration duty charged on the importation of used cars (see Commission v Denmark , paragraph 17). | 67 It is for the national court, which is acquainted with all the facts of the case, to determine whether the operations carried out by SDC have such a distinct character and whether they are specific and essential. | 0 |
866,292 | 62 On this point, it should be remembered that it is settled case-law that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions should not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, in particular, Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 13, Case C-180/96 United Kingdom v Commission, cited above, paragraph 96, and Case C-101/98 UDL [1999] ECR I-8841, paragraph 30). | 52. It must be stated, however, that Article 15 of Regulation No 44/2001 is applicable only if the legal proceedings concerned relate to a contract which has been concluded between a consumer and a professional. | 0 |
866,293 | 43 The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 25 and 26, Case 113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke and Benteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council [1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 9). | 46. In that regard, it is necessary to note, firstly, that Regulation No 800/1999 does not contain any provision concerning the possibility of a post-clearance amendment of an export declaration, that is to say, after goods have been released. However, the Court has already held that exportation, for the purposes of that regulation, is a customs procedure and that, in essence, the general provisions of the Customs Code apply to all export declarations relating to goods qualifying for export refunds, without prejudice to special rules (see Case C-353/04 Nowaco Germany [2006] ECR I-7357, paragraphs 45 to 47). The provision applicable to the facts in the main proceedings is therefore Article 78 of the Customs Code, concerning the post-clearance examination of declarations. | 0 |
866,294 | 13
That provision embodies one of the fundamental principles of the Sixth Directive, according to which the taxable amount is the consideration actually received, and the corollary of which is that the tax authorities may not collect an amount of VAT exceeding the tax which the taxable person has himself received as consideration (judgment of 3 July 1997, Goldsmiths, C‑330/95, EU:C:1997:339, paragraph 15). | 72. The education provided by such schools must be regarded as a service provided for remuneration. | 0 |
866,295 | 101
Moreover, as also follows from the Court’s case-law, whilst the fact that the exercise of such a power of opposition may be reviewed by the national courts is necessary for the protection of undertakings in the light of the application of the rules on freedom of establishment, it cannot, however, suffice on its own to make good the incompatibility with those rules of the two aforementioned assessment criteria (see, to that effect, judgment of 26 March 2009, Commission v Italy , C‑326/07, EU:C:2009:193, paragraphs 54 and 72), since, in particular, the legislation concerned also fails to provide the national courts with criteria that are sufficiently precise to enable them to review the way in which the administrative authority exercises its discretion (see, to that effect, judgment of 13 May 2003, Commission v Spain , C‑463/00, EU:C:2003:272, paragraph 79). | 56. 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 companies but also of non-resident companies from dividends which they receive from a resident company, the situation of those non-resident companies becomes comparable to that of resident companies (see, to that effect, Test Claimants in Class IV of the ACT Group Litigation , paragraph 68; Denkavit Internationaal and Denkavit France , paragraph 35; Amurta , paragraph 38; Commission v Italy , paragraph 52; and Commission v Spain , paragraph 51). | 0 |
866,296 | 12. The first point to be noted is that the provisions relating to charges having equivalent effect and those relating to discriminatory taxation cannot be applied together, so that the same charge cannot, under the system established by the Treaty, belong to both those categories at the same time (Case C‑347/95 UCAL [1997] ECR I-4911, paragraph 17; Case C‑355/00 Freskot [2003] ECR I-5263, paragraph 39; and Joined Cases C‑34/01 to C‑38/01 Enirisorse [2003] ECR I-14243, paragraph 59). | 37. As the Advocate General observed at point 24 of her Opinion, whilst it is true that the aim of the letter of formal notice is to delimit the subject-matter of the dispute, the Commission is obliged to specify precisely in the reasoned opinion the grounds of complaint which it has already raised more generally in the letter of formal notice. However, that does not prevent it from restricting the subject-matter of the dispute or expanding it to cover subsequent measures that are essentially the same as the measures challenged in the formal notice.
The plea of inadmissibility alleging an insufficient statement of grounds in the application | 0 |
866,297 | 30. In that regard, it should be noted at the outset that a situation like that of Mr Byankov, who is prevented from travelling from the Member State of which he is a national to another Member State, falls within the scope of the freedom to move and reside within the territory of the Member States which is conferred by the status of citizen of the Union (see, by analogy, Jipa , paragraph 17; Case C-430/10 Gaydarov [2011] ECR I-11637, paragraphs 24 to 27; and Case C-434/10 Aladzhov [2011] ECR I-11659, paragraphs 24 to 27). | 94. La Cour considère que l’ensemble des éléments juridiques et factuels entourant le manquement constaté est de nature à requérir, en l’espèce, l’adoption d’une mesure dissuasive telle que l’imposition d’une somme forfaitaire (voir arrêt Commission/Belgique, C‑533/11, EU:C:2013:659, point 61 et jurisprudence citée). | 0 |
866,298 | 21 Furthermore, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined as at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-384/97 Commission v Greece [2000] ECR I-3823, paragraph 35). Even if Directive 96/61 and the new framework directive have altered the Community's approach to strategies for combating water pollution, that does not affect the obligations of the Kingdom of the Netherlands as at the end of the period laid down by the reasoned opinion. | 15 THE BELGIAN GOVERNMENT POINTS OUT THAT THE DISTINCTION DRAWN IN BELGIUM BETWEEN THE CLOSURE OF UNDERTAKINGS AND COLLECTIVE REDUNDANCIES HAS HISTORICAL ORIGINS . IN BELGIUM THE POSITION OF WORKERS DISMISSED AS A RESULT OF THE CLOSURE OF AN UNDERTAKING HAS BEEN REGULATED BY LEGISLATION SINCE 1960 , WHILST COLLECTIVE REDUNDANCIES WERE REGULATED FOR THE FIRST TIME BY COLLECTIVE LABOUR AGREEMENT NO 10 OF 8 MAY 1973 WHICH SOUGHT TO MITIGATE THE CONSEQUENCES OF COLLECTIVE REDUNDANCIES BY THE GRANT OF A SPECIAL ALLOWANCE , THE COST OF WHICH WAS TO BE BORNE BY THE EMPLOYER .
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866,299 | 43
Consequently, as long as an E 101 certificate is not withdrawn or declared invalid, the competent institution of the Member State in which an employee actually works must take account of the fact that that person is already subject to the social security legislation of the Member State in which the undertaking employing him is established, and that institution cannot therefore subject the worker in question to its own social security system (judgment of 30 March 2000, Banks and Others, C‑178/97, EU:C:2000:169, paragraph 42 and the case-law cited). | 9 THESE OBJECTIVES IMPLY THE NEED TO AVOID , SO FAR AS POSSIBLE , CREATING A SITUATION IN WHICH A NUMBER OF COURTS HAVE JURISDICTION IN RESPECT OF ONE AND THE SAME CONTRACT .
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