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Consequently, there is no connection between, on the one, hand, the operative event for the levy at issue in the cases in the main proceedings and, on the other, the actual production of electricity by wind turbines, and even less the consumption of electricity generated by them (see, by analogy, judgments of 10 June 1999, Braathens, C‑346/97, EU:C:1999:291, paragraphs 22 and 23; of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraphs 61 to 65; and of 1 October 2015, OKG, C‑606/13, EU:C:2015:636, paragraphs 31 to 35). | 59
In that regard, it should be stated that Article 29 of Directive 2011/95 is not relevant in the context of the examination of the third question, since beneficiaries of subsidiary protection status and German nationals are not in a comparable situation so far as the objective of facilitating the integration of third-country nationals is concerned. | 0 |
867,701 | 20 The Court has consistently held (inter alia, Case 295/84 Rousseau Wilmot v Organic [1985] ECR 3759, paragraph 16; Case C-347/90 Bozzi v Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati e dei Procuratori Legali [1992] ECR I-2947, paragraph 9; and Case C-130/96 Fazenda Pública v Solisnor-Estaleiros Navais [1997] ECR I-5053, paragraph 13) that, in leaving the Member States free to maintain or introduce certain indirect taxes such as excise duties on condition that they are not taxes which can be characterised as turnover taxes, Article 33 of the Sixth Directive seeks to prevent the functioning of the common system of VAT from being jeopardised by fiscal measures of a Member State affecting the movement of goods and services and applying to commercial transactions in a manner comparable to VAT. | 61 Under those circumstances, it follows clearly from the provisions of Regulation No 1612/68, in particular Articles 10 and 12 thereof, that the children of R's first husband continue to enjoy a right to reside in the host Member State as well as the right to pursue their education there under the same conditions as the nationals of that State. | 0 |
867,702 | 14 With regard to those characteristics, the first point to bear in mind is that, as the Court has repeatedly held (see, in particular, the judgments in Case 252/86 Bergandi v Directeur-Général des Impôts [1988] ECR 1343, paragraph 15, Joined Cases 93 and 94/88 Wisselink and Others v Staatssecretaris van Financiën [1989] ECR 2671, paragraph 18, Case C-109/90 Giant v Gemeente Overijse [1991] ECR I-1385, paragraphs 11 and 12, Case C-200/90 Dansk Denkavit and Poulsen v Skatteministeriet [1992] ECR I-2217, paragraph 11, and Case C-347/90 Bozzi [1992] ECR I-2947, paragraph 12), VAT applies generally to transactions relating to goods or services, it is proportional to the price of those goods or services, it is charged at each stage of the production and distribution process and finally it is imposed on the added value of goods and services, since the tax payable on a transaction is calculated after deduction of the tax paid on the previous transaction. | 20
In that regard, it should be pointed out at the outset that Regulation No 1889/2005 does not define that notion. | 0 |
867,703 | 68. It must be observed at the outset that although it is known that the General Court has exclusive jurisdiction to find and appraise the facts and, in principle, to examine the evidence it accepts in support of those facts, the Court of Justice has jurisdiction to carry out a review, provided that the General Court has defined their legal nature and determined the legal consequences (see, to that effect, judgment in E.ON Energie v Commission , C‑89/11 P, EU:C:2012:738, paragraphs 64 and 65 and the case-law cited). Consequently, the question whether, in the light of such facts and evidence, the annulment of the decision at issue by the EU Courts is capable of granting the appellants a benefit in the context of an action brought before the national courts, which may establish their interest in bringing proceedings before the EU Courts, is a question of law which comes within the Court’s review in the context of an appeal. | 9 Any Community national who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in another Member State, falls within the scope of the aforesaid provisions. | 0 |
867,704 | 39 Nevertheless, according to settled case-law, in determining the scope of any derogation from an individual right such as the equal treatment of men and women laid down by the Directive, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued (Johnston, paragraph 38; Sirdar, paragraph 26, and Kreil, paragraph 23). | 106 It follows that the ban on exports of bovine meat likewise cannot be regarded as a manifestly inappropriate measure. | 0 |
867,705 | 48. It is true that the Court has also held that, where the European Union intends to implement a particular obligation assumed in the context of the agreements concluded in the context of the World Trade Organization (‘the WTO agreements’) or where the EU act at issue refers explicitly to specific provisions of those agreements, the Court should review the legality of the act at issue and the acts adopted for its implementation in the light of the rules of those agreements (see judgments in Fediol v Commission , EU:C:1989:254, paragraphs 19 to 23; Nakajima v Council , EU:C:1991:186, paragraphs 29 to 32; Germany v Council , C‑280/93, EU:C:1994:367, paragraph 111, and Italy v Council , C‑352/96, EU:C:1998:531, paragraph 19) | 62. It must, however, be stated that, as the Court of Justice held in paragraph 36 of SAT.1 v OHIM , cited above, that criterion, although relevant in relation to Article 7(1)(c) of Regulation No 40/94, is not the yardstick by which Article 7(1)(b) must be interpreted. | 0 |
867,706 | 39 As regards the extent of the reparation for the loss or damage arising from such failure, it should be noted that retroactive application in full of the measures implementing the Directive to employees who have suffered as a result of belated transposition enables in principle the harmful consequences of the breach of Community law to be remedied, provided that the Directive has been properly transposed. Such application should have the effect of guaranteeing to those employees the rights from which they would have benefited if the Directive had been transposed within the prescribed period (see also the judgment of today's date in Joined Cases C-94/95 and C-95/95 Bonifaci and Others and Berto and Others [1997] ECR I-0000, paragraphs 51 to 54). | 109. Second, as regards compliance with the principle of effectiveness, it must be borne in mind that, in principle, a trader who has paid a charge levied though not due is entitled to repayment of the amount paid (see, in particular, Comateb and Others , paragraph 20) and that the tax authority may refuse to repay such a charge only if repayment entails unjust enrichment of the trader. | 0 |
867,707 | 23 It is in this regard settled case-law that if the advantages stemming from the use of the revenue from a charge forming part of a general system of internal charges applying systematically to national products processed and marketed on the national market and to products exported in an unprocessed state fully offset the burden borne by the national product processed and marketed on the national market when it is placed on the market, that charge constitutes a charge having an effect equivalent to a customs duty, contrary to Articles 9 and 12 of the Treaty (see, by way of analogy, Compagnie Commerciale de l'Ouest and Others, cited above, paragraph 27, Case C-17/91 Lornoy and Others [1992] ECR I-6523, paragraph 21, and Case C-72/92 Scharbatke [1993] ECR I-5509, paragraph 10). On the other hand, if the advantages accruing to the taxed national products processed and marketed on the national market from the use of the revenue generated by the charge offset only partially the burden borne by those products, such a charge will constitute a breach of the prohibition of discrimination laid down by Article 95 of the Treaty (see inter alia, by way of analogy, UCAL, paragraph 22). | 50. It is for each Member State to organise, in compliance with Community law, its system of taxation of distributed profits and, in that context, to define the tax base as well at the tax rates which apply to the company making the distribution and/or the shareholder to whom the dividends are paid, in so far as they are liable to tax in that State. | 0 |
867,708 | 30. Nevertheless, it is for the Court, in any event, to determine whether or not the alleged breach of obligations exists, even if the Member State concerned does not deny the breach (see Case C‑439/99 Commission v Italy [2002] ECR I‑305, paragraph 20, and Case C‑438/07 Commission v Sweden [2009] ECR I‑9517, paragraph 53). | 15 L' ANALYSE DE L' ECONOMIE ET DE L' OBJECTIF DES DISPOSITIONS DES ARTICLES 3 ET 4 DU REGLEMENT N* 857/84 DU CONSEIL FAIT APPARAITRE QU' ELLES ENUMERENT DE FACON LIMITATIVE LES SITUATIONS DANS LESQUELLES DES QUANTITES DE REFERENCE SPECIFIQUES OU SUPPLEMENTAIRES PEUVENT ETRE ATTRIBUEES PAR LES ETATS MEMBRES . CES DISPOSITIONS NE VISANT PAS LA SITUATION D' UN PRODUCTEUR N' AYANT PAS LIVRE DE LAIT PENDANT L' ANNEE DE REFERENCE EN RAISON D' UN ENGAGEMENT DE NON-COMMERCIALISATION PRIS AU TITRE DU REGLEMENT N* 1078/77, UN TEL PRODUCTEUR NE PEUT PRETENDRE A UNE QUANTITE DE REFERENCE QUE DANS LA MESURE OU IL RELEVE D' UNE OU DE PLUSIEURS DES HYPOTHESES SPECIFIQUEMENT ENVISAGEES A CET EFFET . | 0 |
867,709 | 50. Contrary to what the Grand Duchy of Luxembourg and the Kingdom of Belgium argue, that interpretation is not undermined by the principle of fiscal neutrality, which was intended by the EU legislature to reflect, in matters relating to VAT, the general principle of equal treatment (judgment in NCC Construction Danmark , EU:C:2009:669, paragraph 41 and the case-law cited). | 13 The answer to the first question must therefore be that national legislation which defines waste as excluding substances and objects which are capable of economic reutilization is not compatible with Council Directives 75/442 and 78/319 .
The second question ( requirement of authorization for the transport of waste ) | 0 |
867,710 | 28
To enable the contracting authority to require a tenderer whose tender it regards as imprecise or as failing to meet the technical requirements of the tender specifications to provide clarification in that regard would be to run the risk of making the contracting authority appear to have negotiated with the tenderer on a confidential basis, in the event that that tenderer was finally successful, to the detriment of the other tenderers and in breach of the principle of equal treatment (judgment of 29 March 2012, SAG ELV Slovensko and Others, C‑599/10, EU:C:2012:191, paragraph 37). | 32. It follows that the General Court was wrong to reject, in paragraph 91 of the judgment under appeal, the appellant’s argument that Article 2(7)(b) and (c) of the basic regulation obliged the Commission to examine MET/IT claims from non-sampled traders. | 0 |
867,711 | 23. First of all, it must be noted that, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with Community law (see, inter alia, Case C-319/02 Manninen [2004] ECR I‑7477, paragraph 19; Case C-386/04 Centro di Musicologia Walter Stauffer [2006] ECR I-8203, paragraph 15; and Case C-347/04 Rewe Zentralfinanz [2007] ECR I-2647, paragraph 21). | 58. In that respect, the diversity of the supporting documents on which the competent authorities may rely, a non-exhaustive list of which is set out in Annex II to that code, and the variety of methods available to those authorities, including interviewing the applicant as provided for in Article 21(8) of that code, confirm the complex nature of the examination of visa applications. | 0 |
867,712 | 39 The Court has had occasion to state in this respect that although the mere fact that a Member State has created a dominant position by the grant of exclusive rights is not as such incompatible with Article 86, the Treaty none the less requires the Member States not to adopt or maintain in force any measure which might deprive that provision of its effectiveness (see Case C-260/89 ERT [1991] ECR I-2925, paragraph 35, and Corbeau, cited above, paragraph 11). | 46. Consequently, the graphic user interface can, as a work, be protected by copyright if it is its author’s own intellectual creation. | 0 |
867,713 | 27. It must be borne in mind that, according to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force (see Case C-201/04 Molenbergnatie [2006] ECR I‑2049, paragraph 31 and the case-law cited). | 32 That conclusion is not invalidated by the fact that the second subparagraph of Article 4(5 ) of the Sixth Directive requires activities to be treated as taxable if their treatment as non-taxable would lead to significant distortions of competition . That limitation placed on the rule of treatment as non-taxable persons is thus only a conditional limitation, and whilst it is true that its application involves an assessment of economic circumstances, that assessment is not exempt from judicial review . | 0 |
867,714 | 75. In that context, although it is for the national court to define the market for the services at issue, it should nevertheless be recalled that, according to the Court's case-law, in order for a market to be held to be sufficiently homogeneous and distinct from others, the service must be able to be distinguished from other services by virtue of specific characteristics as a result of which it is scarcely interchangeable with those alternatives as far as the consumer is concerned and is affected only to an insignificant degree by competition from them (see, to that effect, Case 27/76 United Brands v Commission [1978] ECR 207, paragraphs 11 and 12, and Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekämpfung unlauteren Wettbewerbs [1989] ECR 803, paragraph 40). In that regard, the examination cannot be limited to the objective characteristics of the relevant services but must include the competitive conditions and the structure of supply and demand on the market (Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 37). | 40 The test to be employed is whether the scheduled flight on a particular route can be distinguished from the possible alternatives by virtue of specific characteristics as a result of which it is not interchangeable with those alternatives and is affected only to an insignificant degree by competition from them . | 1 |
867,715 | 44. Directive 76/308 establishes common rules on mutual assistance in order to ensure the recovery of claims relating to certain levies, duties and taxes (Case C-233/08 Kyrian [2010] ECR I-177, paragraph 34). In accordance with the provisions of that directive, a Member State may request assistance from another Member State in relation to the recovery of income tax payable by a taxpayer resident in the latter Member State (Case C-520/04 Turpeinen [2006] ECR I-10685, paragraph 37). | 59 UNDER ARTICLE 9 THE PROCEDURE OF APPEAL TO A COMPETENT AUTHORITY MUST PRECEDE THE DECISION ORDERING EXPULSION IN CASES OF URGENCY .
| 0 |
867,716 | 49 The rest of the case-law referred to by KCH is not decisive. In most of the cases referred to, the penalty is examined in the light of the principle of proportionality rather than the principle `nulla poena sine culpa' (cases cited above, Thyssen v Commission, paragraphs 18 to 22; Schumacher, paragraphs 25 to 31; Cereol Italia, paragraphs 13 to 27; National Farmers' Union and Others, paragraphs 49 to 55; and Molkereigenossenschaft Wiedergeltingen, paragraphs 33 to 45). As for the judgment in Estel v Commission, in paragraphs 38 to 43 of which the Court held that a steel company penalised by the Commission for having exceeded the production quota imposed on it had committed an error which was not excusable and that, accordingly, the Commission had not breached the principle `nulla poena sine culpa', that judgment was delivered in an area far removed from agricultural regulations and without the Court ruling explicitly on whether the penalty in question was of a criminal nature or not. | 23. Since Ms Turpeinen has exercised her rights to freedom of movement and residence conferred by Article 18(1) EC, she may rely on that provision as against her State of origin. | 0 |
867,717 | 32. As the Court held in paragraph 49 of the judgment in Case C-114/01 AvestaPolarit Chrome [2003] ECR I-8725, the expression ‘other legislation’ in Article 2(1)(b) of Directive 75/442 may also refer to national legislation. | 56. As is apparent from the first recital in the preamble to the Framework Agreement and from paragraph 5 of its general considerations, the Framework Agreement constitutes an undertaking by the two sides of industry to introduce, through minimum requirements, measures to promote equal opportunities and treatment between men and women, by offering them an opportunity to reconcile their work responsibilities with family obligations (Case C-116/08 Meerts [2009] ECR I‑0000, paragraph 35). | 0 |
867,718 | 44. In those circumstances it should be held that the lubricating oils in question, which are not subject to harmonised excise duty, are products other than those referred to in the first indent of Article 3(1) of Directive 92/12 (see, to that effect, Braathens , paragraphs 24 and 25, and Commission v Italy, paragraphs 31 and 33) so that, in accordance with the first subparagraph of Article 3(3) thereof, Member States are to retain the right to introduce or maintain taxes which are levied on those products provided that those taxes do not give rise to border-crossing formalities in trade between Member States. | 307. Thus, by virtue of that provision, supposing it to be applicable to the Charter of the United Nations, the latter would have primacy over acts of secondary Community law (see, to that effect, Case C‑308/06 Intertanko and Others [2008] ECR I‑0000, paragraph 42 and case-law cited). | 0 |
867,719 | 99. The first of those rights, which is affirmed in Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, the judgment of 21 December 2011 in Case C‑27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I‑0000, paragraph 66), includes the right to be heard and the right to have access to the file, subject to legitimate interests in maintaining confidentiality. | Ainsi que la Cour l’a jugé, il découle du libellé de cette disposition que, en règle générale et sauf disposition contraire, la présentation de faits et de preuves par les parties demeure possible après l’expiration des délais auxquels se trouve subordonnée une telle présentation en application des dispositions du règlement no 207/2009 et qu’il n’est nullement interdit à l’EUIPO, y compris ses chambres de recours, de tenir compte de faits et de preuves ainsi tardivement invoqués ou produits (arrêts du 13 mars 2007, OHMI/Kaul, C‑29/05 P, EU:C:2007:162, point 42 ; du 26 septembre 2013, Centrotherm Systemtechnik/OHMI et centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, point 77, ainsi que, en ce sens, arrêt du 3 octobre 2013, Rintisch/OHMI, C‑120/12 P, EU:C:2013:638, points 22 à 33). | 0 |
867,720 | 33
In the second place, with regard to the context in which Article 198(2) of the VAT Directive occurs, it must be recalled that that provision enables Member States to introduce, in the situations referred to in that article, a reverse charge mechanism whereby the person liable for payment of VAT is the person who is the recipient of the transaction subject to that tax. That provision is therefore an exception to the general rule set out in Article 193 of that directive that VAT is payable by any taxable person carrying out a taxable supply of goods or services. It must therefore be interpreted strictly, without, however, rendering it ineffective (see, by analogy, judgment of 13 June 2013 in Promociones y Construcciones BJ 200, C‑125/12, EU:C:2013:392, paragraphs 23 and 31 and the case-law cited). | 113. Il ressort de la jurisprudence de la Cour que le Conseil bénéficie, pour l’application de l’article 88, paragraphe 2, troisième alinéa, CE, d’un large pouvoir d’appréciation dont l’exercice implique des évaluations complexes d’ordre économique et social, qui doivent être effectuées dans le contexte de l’Union. Dans ce cadre, le contrôle juridictionnel appliqué à l’exercice de ce pouvoir d’appréciation se limite à la vérification du respect des règles de procédure et de motivation ainsi qu’au contrôle de l’exactitude matérielle des faits retenus et de l’absence d’erreur de droit, d’erreur manifeste dans l’appréciation des faits ou de détournement de pouvoir (voir, en ce sens, arrêt du 29 février 1996, Commission/Conseil, précité, points 18 et 19, ainsi que, par analogie, arrêt du 22 décembre 2008, Régie Networks, C‑333/07, Rec. p. I‑10807, point 78). | 0 |
867,721 | 30. Although the system established by Framework Decision 2002/584 is based on the principle of mutual recognition, that recognition does not mean that there is an absolute obligation to execute the arrest warrant that has been issued. The system established by that framework decision, as evidenced inter alia by Article 4 thereof, makes it possible for the Member States to allow the competent judicial authorities, in specific situations, to decide that a sentence must be enforced on the territory of the executing Member State (Case C-306/09 I. B. [2010] ECR I-10341, paragraphs 50 and 51). | 51. The system established by the framework decision, as evidenced inter alia by the provisions of those articles, makes it possible for the Member States to allow the competent judicial authorities, in specific situations, to decide that a sentence must be executed on the territory of the executing Member State. | 1 |
867,722 | 46. Moreover, the Court has already held that, having regard to their nature and structure, the provisions of the TRIPs Agreement do not have direct effect. Those provisions are not, in principle, among the rules in the light of which the Court is to review the legality of measures of the Community institutions under the first paragraph of Article 230 EC and are not such as to create rights upon which individuals may rely directly before the courts by virtue of European Union law (see, to that effect, Case C-149/96 Portugal v Council [1999] ECR I-8395, paragraphs 42 to 48; Joined Cases C-300/98 and C-392/98 Dior and Others [2000] ECR I‑11307, paragraph 44, and Case C-245/02 Anheuser-Busch [2004] ECR I-10989, paragraph 54). | 35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71. | 0 |
867,723 | 20 So far as concerns the possibility of applying Article 113 of the Treaty, it is important to note that the Treaty does not contain any provision similar to Article 95 regarding domestic taxation in respect of trade with non-member countries, subject, however, to any treaty provisions which may be in force between the Community and the country of origin of a given product (see the judgment in Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 1787, paragraph 24) and that although Article 113 confers upon the Community powers which enable it to take any appropriate measure concerning the common commercial policy, it nevertheless does not in itself contain any legal criterion which is sufficiently precise to enable an assessment of the contested national rules to be made (see the judgment in Case 266/81 SIOT v Ministero delle Finanze [1983] ECR 731, paragraph 29). | 24THEREFORE THE ANSWER TO QUESTIONS 4 AND 5 SHOULD BE THAT THE EEC TREATY DOES NOT INCLUDE ANY PROVISION PROHIBITING DISCRIMINATION IN THE APPLICATION OF INTERNAL TAXATION TO PRODUCTS IMPORTED FROM NON-MEMBER COUNTRIES , SUBJECT HOWEVER TO ANY TREATY PROVISIONS WHICH MAY BE IN FORCE BETWEEN THE COMMUNITY AND THE COUNTRY OF ORIGIN OF A GIVEN PRODUCT .
| 1 |
867,724 | 31. Les considérations qui précèdent ne sauraient non plus être remises en cause par le fait, invoqué notamment par Allianz, que, selon la jurisprudence de la Cour, le droit de révocation instauré à l’article 5, paragraphe 1, de la directive 85/577 peut expirer même lorsque le consommateur a reçu une information erronée sur les modalités d’exercice de ce droit (voir arrêt du 10 avril 2008, Hamilton, C‑412/06, Rec. p. I‑2383, point 49). En effet, cet arrêt porte sur la conformité, avec ladite directive, d’une disposition nationale prévoyant une telle expiration un mois après l’exécution complète, par les parties contractantes, des obligations découlant d’un contrat. Or, dans la présente affaire, une telle disposition n’est pas en cause, le législateur national concerné n’ayant pas adopté une telle disposition en ce qui concerne les contrats d’assurance vie. | 26. According to settled case-law, 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, and Case C-209/03 Bidar [2005] ECR I-0000, paragraph 51). | 0 |
867,725 | 28 Yet other directives require the Member States to obtain very precise and specific results after a certain period (see, for example, Article 4(1) of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1); see, in this regard, Case C-56/90 Commission v United Kingdom [1993] ECR I-4109, paragraphs 42, 43 and 44, Case C-198/97 Commission v Germany [1999] ECR I-3257, paragraph 35, Case C-307/98 Commission v Belgium [2000] ECR I-3933, paragraph 51, and Case C-268/00 Commission v Netherlands [2002] ECR I-2995, paragraphs 12, 13 and 14). | 28. As regards that last criterion specifically, the cumulative effect of making the works available to potential recipients should be taken into account. It is in particular relevant in that respect to ascertain the number of persons who have access to the same work at the same time and successively (Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 39, and ITV Broadcasting and Others , paragraph 33). | 0 |
867,726 | 33. However, although it is true that those requirements could constitute an important characteristic of the conditions of eligibility for unemployment benefit (see, to that effect, Case 79/81 Baccini [1982] ECR 1063, paragraphs 15 and 16; Acciardi , cited above, paragraphs 16 and 17; Case C‑25/95 Otte [1996] ECR I‑3745, paragraph 36; and De Cuyper , cited above, paragraph 27), the fact of being dispensed from fulfilling those conditions in a particular case cannot, as such, affect the very nature of the benefit at issue in the main proceedings. | 93 It follows that the appellant was entitled to ask the Court of First Instance to order the opposite party to produce documents which were in its possession. Nevertheless, to enable the Court of First Instance to determine whether it was conducive to proper conduct of the procedure to order the production of certain documents, the party requesting production must identify the documents requested and provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings. | 0 |
867,727 | 50. Secondly, the reduction in the amount of ‘livestock’ aid or the withdrawal of that aid constitutes an administrative penalty within the meaning of Article 2(2) of Regulation No 2998/95 (see, to that effect, National Farmers’ Union and Others , cited above, paragraph 40, and Schilling and Nehring , cited above, paragraphs 26 and 27). | 39 Nevertheless, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Bosman, paragraph 61; Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20; Case C-322/98 Kachelmann [2000] ECR I-7505, paragraph 17). | 0 |
867,728 | 45 In order to prevent the protection afforded to the proprietor varying from one State to another, the Court must therefore give a uniform interpretation to Article 5(1) of the Directive, in particular the term `use' which is the subject of the questions referred for a preliminary ruling in the present case (see, to that effect, Zino Davidoff and Levi Strauss, paragraphs 42 and 43). | 44. In that regard, it is clear from the case‑law of the Court of First Instance that lack of distinctiveness cannot be found because of lack of imagination or of an additional element of originality (Case T‑135/99 Taurus‑Film v OHIM (Cine Action) [2001] ECR II‑379, paragraph 31; Case T‑136/99 Taurus‑Film v OHIM (Cine Comedy) [2001] ECR II‑397, paragraph 31; and Case T‑87/00 Bank für Arbeit und Wirtschaft v OHIM (EASYBANK) [2001] ECR II‑1259, paragraphs 39 and 40). Furthermore, it is not appropriate to apply to slogans criteria which are stricter than those applicable to other types of sign. | 0 |
867,729 | 32. However, that fact cannot, in any event, have the effect of preventing a national court from giving full effect to the rules of European Union law which, as stated in paragraph 27 of this judgment, are applicable in the main proceedings, and more particularly to Article 27 of Directive 2004/38. Accordingly, it is the duty of the court seised to refuse, if necessary, to apply any provision of national legislation which is in conflict with European Union law, in particular by annulling an individual administrative decision adopted on the basis of such a provision (see, to that effect, inter alia, Case C‑173/09 Elchinov [2010] ECR I‑0000, paragraph 31 and case-law cited). Further, the provisions of that article, which are unconditional and sufficiently precise, may be relied on by an individual vis-à-vis the Member State of which he is a national (see, by analogy, Case 41/74 van Duyn [1974] ECR 1337, paragraphs 9 to 15). | 35 Even if fraudulent re-importation into the Community may be a circumstance beyond the control of the exporter, it none the less represents an ordinary commercial risk and cannot be regarded as being unforeseeable in the contractual relations entered into on the occasion of an export qualifying for a refund. | 0 |
867,730 | 40 It must first be borne in mind that, in Crispoltoni I, the Court held that Regulations Nos 1114/88 and 2268/88 were invalid in so far as they provided for a MGQ for Bright variety tobacco harvested in 1988. | 17 In that respect, the Court has consistently held (see, inter alia, judgments in Case 98/78 Racke v Hauptzollamt Mainz [1979] ECR 69, paragraph 20, and Case 99/78 Decker v Hauptzollamt Landau [1979] ECR 101, paragraph 8) that, although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected. That case-law also applies where the retroactivity is not expressly laid down by the measure itself but is the result of its content. | 1 |
867,731 | 58. The direct effect of both Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 is clear from the case-law of the Court of Justice (see, as regards Article 41(1), Joined Cases C-37/98 Savas [2000] ECR I-2927, paragraphs 54 and 71, and, as regards Article 13, Case C-192/89 Sevince [1990] ECR I-3461, paragraph 26). Those provisions lay down, clearly, precisely and unconditionally, unequivocal "standstill" clauses, which contain an obligation entered into by the contracting parties which amounts in law to a duty not to act (see Savas , cited above, paragraphs 46 and 47). | 43. It is only where that adapter can be classified neither under heading 8471 nor under heading 8473 of the CN that it would be necessary to consider it to be an ‘electrical apparatus for making connections to or in electrical circuits’ and consequently to fall under heading 8536 of the CN, the wording of which refers, in particular, to ‘electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits’. | 0 |
867,732 | 56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule.
"
8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held:
"66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ...
...
69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55).
...
73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities.
74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ...
"
9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds:
"77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... .
78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37).
"
The appeal
10. By its appeal, Interporc claims that the Court should:
─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs;
─ annul the contested decision in its entirety;
─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance.
11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment).
12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment.
Admissibility of the appeal
Arguments of the parties
13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance.
14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly.
Findings of the Court
15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68).
16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24).
17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49).
18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based.
19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance.
20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule.
21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively.
22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed.
23. It follows from the foregoing that the appeal is admissible.
Substance
The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file
Arguments of the parties
24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal).
25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers.
26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal.
27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90.
Findings of the Court
28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment.
29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81).
30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56).
31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule.
32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case.
33. It follows that the first plea must be rejected.
The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order
Arguments of the parties
34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty.
35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed.
36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred.
37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned.
Findings of the Court
38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions.
39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights.
40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration.
41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied.
42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature.
43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case.
44. The first part of the second plea must therefore be rejected.
The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule
Arguments of the parties
45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case.
46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule.
47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case.
Findings of the Court
48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27).
49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author.
50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents.
51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author.
52. The second part of the second plea must therefore be rejected as unfounded.
The third part of the second plea alleging infringement of the obligation to state reasons
Arguments of the parties
53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities.
54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea.
Findings of the Court
55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48).
56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24). | Dans la mesure où une telle exonération couvre la location de postes d’amarrage et d’emplacements pour l’entreposage de bateaux
ne présentant pas un lien étroit avec la pratique du sport ou de l’éducation physique, elle dépasse le cadre de l’article
132, paragraphe 1, sous m), de la directive 2006/112. | 0 |
867,733 | 27 What is more, the criterion of whether the burden is offset, in order to be usefully and correctly applied, presupposes a check, during a reference period, on the financial equivalence of the total amounts levied on domestic products in connection with the charge in question and the advantages afforded exclusively to those products. Any other parameter, such as the nature, scope or indispensable character of those advantages, would not provide a sufficiently objective basis for determining whether a domestic fiscal measure is compatible with the Treaty (Celbi, cited above, paragraph 18). | 94. The point must be made that the abusiveness of a pricing practice such as that at issue in the main proceedings must be assessed not only with regard to the possibility that the effect of that practice may be that equally efficient operators who are already active in the relevant market may be driven from it, but also by taking into account any barriers which the practice is capable of creating in the way of operators who are potentially equally efficient and who are not yet present on the market (see, to that effect, Deutsche Telekom v Commission , paragraph 178). | 0 |
867,734 | 27. Consequently, the fact that Mr and Mrs Schilling are German nationals cannot prevent them from relying on the rules on free movement of workers as against the Member State of which they are nationals, since they have exercised their right to freedom of movement and worked in another Member State (see, to that effect, De Groot , paragraph 80). | 75. Selon une jurisprudence constante, l’obligation de motivation n’impose pas au Tribunal de fournir un exposé qui suivrait, de manière exhaustive et un par un, tous les raisonnements articulés par les parties au litige et la motivation peut donc être implicite à condition qu’elle permette aux intéressés de connaître les raisons pour lesquelles le Tribunal n’a pas fait droit à leurs arguments et à la Cour de disposer des éléments suffisants pour exercer son contrôle (arrêts FIAMM e.a./Conseil et Commission, C-120/06 P et C-121/06 P, EU:C:2008:476, point 96 et jurisprudence citée, ainsi que British Telecommunications/Commission, C-620/13 P, EU:C:2014:2309, point 56). | 0 |
867,735 | 40. The sui generis nature of the employment relationship under national law is of no consequence as regards whether or not a person is a worker for the purposes of EU law (see Kiiski , paragraph 26 and the case-law cited). Provided that a person meets the conditions specified in paragraph 39 above, the nature of that person’s legal relationship with the other party to the employment relationship has no bearing on the application of Directive 92/85 (see, by analogy, in the context of freedom of movement for workers, Case 344/87 Bettray [1989] ECR 1621, paragraph 16, and Case C‑357/89 Raulin [1992] ECR I‑1027, paragraph 10). | 77. For the same reasons, the share of the amount of publicity for the market in the products in dispute represented by advertising investment in promoting a mark may also be relevant for assessing whether the mark has acquired distinctive character through use. | 0 |
867,736 | 15 It must be observed, at the outset, that there are no grounds for the Court to stay the proceedings (see, in particular, Case C-47/99 Commission v Luxembourg [1999] ECR I-8999, paragraph 12). | 13 Furthermore, the granting of an interest-free loan helps to strengthen the company' s economic potential in so far as it enables the company to have capital available without having to bear its cost. It must therefore be regarded as likely to increase the value of the company' s shares (Case C-249/89 Trave Schiffahrts-Gesellschaft, cited above, paragraph 14). | 0 |
867,737 | 88. Those considerations must be taken into account in interpreting the first and third indents of Article 4(2) of Regulation No 1049/2001 and the second subparagraph of Article 4(3) of that regulation. If persons other than those with a right of access under Regulations Nos 1/2003 and 773/2004, or those who enjoy such a right in principle but have not used it or have been refused access, were able to obtain access to documents on the basis of Regulation No 1049/2001, the access system introduced by Regulations Nos 1/2003 and 773/2004 would be undermined (see, by analogy, Commission v Technische Glaswerke Ilmenau , paragraph 58; Sweden and Others v API and Commission , paragraph 100; Commission v Éditions Odile Jacob , paragraph 122; Commission v Agrofert Holding , paragraph 63; and LPN and Finland v Commission , paragraph 58). | 63. Furthermore, the derogations provided for in Articles 296 EC and 297 EC must, in accordance with settled case-law in respect of derogations from fundamental freedoms, be interpreted strictly ( Commission v Greece , paragraph 51 and the case-law cited). | 0 |
867,738 | 114 Accordingly, the plea must be rejected.
The fourth plea in law: infringement of Article 12 of the Staff Regulations
16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis.
17 So far as this plea in law is concerned, the Court of First Instance held as follows:
124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66).
125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position.
126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book.
127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations.
128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty.
129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41).
130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47).
131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials.
132 It follows that the plea must be rejected.
The fifth plea in law: infringement of Article 17 of the Staff Regulations
18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II.
19 The Court of First Instance rejected this plea for the following reasons:
147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression.
148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73).
149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials.
150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions.
151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect.
152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned.
153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties.
154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation.
155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression.
156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected.
157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication.
158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations.
...
160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations.
161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument.
162 Consequently, the plea must be rejected.
The sixth plea in law: manifest error of assessment and breach of the principle of proportionality
20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances.
21 The Court of First Instance held as follows:
165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34).
166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established.
167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed.
168 Furthermore, the applicant's argument that account should have been taken of his good faith regarding what he believed to be the scope of the duties of an official on leave on personal grounds cannot be accepted. It is clear from the case-law that officials are deemed to know the Staff Regulations (Case T-12/94 Daffix v Commission [1997] ECR-SC I-A-453, II-1197, paragraph 116; Joined Cases T-116/96, T-212/96 and T-215/96 Telchini and Others v Commission [1998] ECR-SC I-A-327, II-947, paragraph 59), with the result that their alleged ignorance of their obligations cannot constitute good faith. That argument has even less force in the present case since the applicant has admitted that his colleagues knew of his intention to work on the book at issue during his leave on personal grounds, whereas, in his request to the appointing authority under Article 40 of the Staff Regulations, he had given reasons unconnected with his book. Given that such statements are contrary to the honesty and trust which should govern relations between the administration and officials and are incompatible with the integrity which each official is required to show (see, to that effect, Joined Cases 175/86 and 209/86 M v Council [1988] ECR 1891, paragraph 21), the appointing authority was entitled to treat the applicant's argument concerning his alleged good faith as unfounded.
169 Consequently, the plea must be rejected.
The seventh plea in law: misuse of powers
22 Finally, the appellant asserted that there was a body of evidence establishing misuse of powers.
23 In rejecting this plea, the Court of First Instance gave the following grounds:
171 According to the case-law, a misuse of powers consists in an administrative authority using its powers for a purpose other than that for which they were conferred on it. Thus, a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent indicia, to have been taken for purposes other than those stated (Williams I, paragraphs 87 and 88).
172 As regards the statements made by certain members of the Commission before commencement of the disciplinary proceedings, it need merely be observed that ... those statements constituted no more than a provisional assessment by the relevant members of the Commission and could not, in the circumstances of the case, adversely affect the proper conduct of the disciplinary proceedings.
173 Nor can the applicant's argument that the Commission should have warned him of the risks that he was running by publishing his book be accepted. The Commission rightly points out that it cannot be held liable for initiatives which the applicant had taken care to conceal from it when he requested leave on personal grounds. Furthermore, the arguments alleging that there were irregularities in the disciplinary proceedings and that the applicant acted in good faith must also be rejected for the reasons set out in connection with the first and sixth pleas.
174 As to the argument alleging that the Commission changed the general rules for calculating salary reductions in cases of suspension, it need merely be pointed out that the change was not specifically linked to the applicant's removal from his post and cannot therefore constitute proof of the alleged misuse of powers.
175 Accordingly, it has not been established that, when imposing the disciplinary measure, the appointing authority pursued any aim other than that of safeguarding the internal order of the Community civil service. The seventh plea must therefore be rejected.
24 The Court of First Instance therefore rejected the pleas for annulment and, consequently, the claim for damages.
25 Accordingly, the Court of First Instance dismissed the application and ordered each of the parties to bear its own costs.
The appeal
26 Mr Connolly claims that the Court of Justice should:
set aside the contested judgment;
annul so far as necessary the opinion of the Disciplinary Board;
annul the contested decision;
annul the decision of 12 July 1996 rejecting his administrative complaint;
order the Commission to pay him BEF 7 500 000 in respect of material damage and BEF 1 500 000 in respect of non-material damage;
order the Commission to pay the costs both of the proceedings before the Court of First Instance and of the present proceedings.
27 The Commission contends that the Court of Justice should:
dismiss the appeal as partially inadmissible and, in any event, as entirely unfounded;
dismiss the claim for damages as inadmissible and unfounded;
order Mr Connolly to pay the costs in their entirety.
28 In his appeal the appellant puts forward 13 grounds of appeal.
The first ground of appeal
29 By his first ground of appeal, Mr Connolly complains that the Court of First Instance failed to take account of the fact that Articles 12 and 17 of the Staff Regulations establish a system of prior censorship which is, in principle, contrary to Article 10 of the ECHR as interpreted by the European Court of Human Rights (hereinafter the Court of Human Rights).
30 Furthermore, that system does not incorporate the substantive and procedural conditions required by Article 10 of the ECHR whenever a restriction is imposed on freedom of expression as safeguarded by that provision. In particular, it fails to comply with the requirement that any restriction must pursue a legitimate aim, must be prescribed by a legislative provision which makes the restriction foreseeable, must be necessary and appropriate to the aim pursued and must be amenable to effective judicial review.
31 The appellant also complains that the Court of First Instance neither balanced the interests involved nor ascertained whether the contested decision was actually justified by a pressing social need. In that regard, the appellant submits that if that decision was taken in order to safeguard the interests of the institution and the people affected by the book at issue, then, to be effective, it should have been accompanied by measures designed to prevent distribution of the book. Such measures were not, however, adopted by the Commission.
32 The Commission contends, as a preliminary point, that the first ground of appeal should be rejected as inadmissible on the ground that it is concerned with the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations rather than with the Court of First Instance's interpretation thereof. At no time during the proceedings at first instance did the appellant specifically raise an objection of illegality under Article 241 EC.
33 As to the substance, the Commission contends that Article 17 contains all the safeguards needed to meet the requirements of Article 10 of the ECHR and that, as the Court of First Instance held in paragraphs 148 to 154 of the contested judgment, it is confined to imposing reasonable limits on freedom of publication in cases where the interests of the Community might be adversely affected.
The admissibility of the ground of appeal
34 It is true that, in his first ground of appeal, the appellant appears to be challenging, by reference to Article 10 of the ECHR, the substantive legality of the rules concerning permission laid down by Article 17 of the Staff Regulations, even though before the Court of First Instance, as indicated in paragraph 147 of the contested judgment, he only contested the Commission's interpretation of the second paragraph of Article 17 of the Staff Regulations as being contrary to freedom of expression.
35 Nevertheless, before the Court of First Instance, the appellant, by reference to the requirements of Article 10 of the ECHR, challenged the way in which the second paragraph of Article 17 of the Staff Regulations was applied in his case. Before this Court, he is criticising the reasoning of the contested judgment to justify rejection of his plea alleging failure to observe the principle of freedom of expression.
36 The first ground of appeal must therefore be held to be admissible.
Substance
37 First, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41).
38 Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
39 As the Court of Human Rights has held, Freedom of expression constitutes one of the essential foundations of [a democratic society], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (Eur. Court H. R. Handyside v United Kingdom judgment of 7 December 1976, Series A no. 24, § 49; Müller and Others judgment of 24 May 1988, Series A no. 133, § 33; and Vogt v Germany judgment of 26 September 1995, Series A no. 323, § 52).
40 Freedom of expression may be subject to the limitations set out in Article 10(2) of the ECHR, in terms of which the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
41 Those limitations must, however, be interpreted restrictively. According to the Court of Human Rights, the adjective necessary involves, for the purposes of Article 10(2), a pressing social need and, although [t]he contracting States have a certain margin of appreciation in assessing whether such a need exists, the interference must be proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it must be relevant and sufficient (see, in particular, Vogt v Germany, § 52; and Wille v Liechtenstein judgment of 28 October 1999, no 28396/95, § 61 to § 63). Furthermore, any prior restriction requires particular consideration (see Wingrove v United Kingdom judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1957, § 58 and § 60).
42 Furthermore, the restrictions must be prescribed by legislative provisions which are worded with sufficient precision to enable interested parties to regulate their conduct, taking, if need be, appropriate advice (Eur. Court H. R. Sunday Times v United Kingdom judgment of 26 April 1979, Series A no. 30, § 49).
43 As the Court has ruled, officials and other employees of the European Communities enjoy the right of freedom of expression (see Oyowe and Traore v Commission, paragraph 16), even in areas falling within the scope of the activities of the Community institutions. That freedom extends to the expression, orally or in writing, of opinions that dissent from or conflict with those held by the employing institution.
44 However, it is also legitimate in a democratic society to subject public servants, on account of their status, to obligations such as those contained in Articles 11 and 12 of the Staff Regulations. Such obligations are intended primarily to preserve the relationship of trust which must exist between the institution and its officials or other employees.
45 It is settled that the scope of those obligations must vary according to the nature of the duties performed by the person concerned or his place in the hierarchy (see, to that effect, Wille v Liechtenstein, § 63, and the opinion of the Commission of Human Rights in its report of 11 May 1984 in Glasenapp v Germany, Series A no. 104, § 124).
46 In terms of Article 10(2) of the ECHR, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of others. The rights at issue here are those of the institutions that are charged with the responsibility of carrying out tasks in the public interest. Citizens must be able to rely on their doing so effectively.
47 That is the aim of the regulations setting out the duties and responsibilities of the European public service. So an official may not, by oral or written expression, act in breach of his obligations under the regulations, particularly Articles 11, 12 and 17, towards the institution that he is supposed to serve. That would destroy th | 41 Next, the principle of equal treatment implies an obligation of transparency in order to enable compliance with it to be verified (see, by analogy, Case C-275/98 Unitron Scandinavia and 3-S [1999] ECR I-8291, paragraph 31). | 0 |
867,739 | 40
It must be note pointed out that, according to the Court’s case-law, it is not contrary to EU law to require an operator to act in good faith and to take every step which could reasonably be asked of it to satisfy itself that the transaction which it is carrying out does not result in its participation in tax evasion (judgment of 6 September 2012, Mecsek-Gabona , C‑273/11, EU:C:2012:547, paragraph 48 and the case-law cited). If the taxable person concerned knew or should have known that the transaction which it had carried out was part of a fraud committed by the purchaser and that the taxable person had not taken every step which could reasonably be asked of it to prevent that fraud from being committed, that person would have to be refused a VAT exemption (judgment of 6 September 2012, Mecsek-Gabona , C‑273/11, EU:C:2012:547, paragraph 54). | 17 IN THE PRESENT CASE THE SPECIAL NATURE OF THE TASKS DEVOLVING ON THE SECRETARIATS OF THE PARLIAMENTARY COMMITTEES WHICH HAVE THE TASK OF ASSISTING THE MEMBERS OF THESE COMMITTEES IN THEIR WORK, MAY JUSTIFY A RECRUITMENT BASED INTER ALIA ON A THOROUGH KNOWLEDGE OF THE NATIONAL LANGUAGES USED BY SUCH MEMBERS BELONGING TO THE NATIONAL PARLIAMENTS OF THE MEMBER STATES . | 0 |
867,740 | 182. In so far as the question concerns successive fixed-term employment contracts, it must be pointed out that that question is the same as a question on which the Court has already given a ruling in Adeneler and Others (paragraphs 91 to 105) and that other relevant information enabling an answer to be given to that question appears in the judgments in Marrosu and Sardino (paragraphs 44 to 57) as well as Vassallo (paragraphs 33 to 42) and the order in Vassilakis and Others (paragraphs 120 to 137). | 32. However, it should be borne in mind that, in proceedings brought under Article 267 TFEU, the Court has no jurisdiction to check or to assess the factual circumstances of the case before the referring court. It is therefore for the national court, in accordance with the rules of evidence of national law, to carry out an overall assessment of all the facts and circumstances of the case in order to establish whether Bonik may exercise a right of deduction on the basis of those supplies of goods (see, to that effect, Case C-273/11 Mecsek-Gabona [2012] ECR, paragraph 53). | 0 |
867,741 | 34
Lastly, the Court held that injunctions must be equitable and proportionate. They must not therefore be excessively expensive and must not create barriers to legitimate trade. Nor can the intermediary be required to exercise general and permanent oversight over its customers. By contrast, the intermediary may be forced to take measures which contribute to avoiding new infringements of the same nature by the same market-trader from taking place (see, to that effect, judgment of 12 July 2011 in L’Oréal and Others, C‑324/09, EU:C:2011:474, paragraphs 138 to 141). | 22 The provisions on charges having equivalent effect and those on discriminatory internal taxation cannot be applied together (see the judgment in Case 94/74 IGAV v ENCC [1975] ECR 699). The scope of each of those provisions must therefore be defined. | 0 |
867,742 | 40. However, the Court has held that courses given by educational establishments essentially financed by private funds, notably by students and their parents, constitute services within the meaning of Article 50 EC, since the aim of those establishments is to offer a service for remuneration ( Wirth , paragraph 17). | However, the judicial review exercised by the General Court cannot consist of a mere repetition of a review previously carried
out by the Board of Appeal of EUIPO (judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 55). | 0 |
867,743 | 39 In this regard, when applying domestic law the national court must, as far as is at all possible, interpret it in a way which accords with the requirements of Community law (Van Munster, paragraph 34, and, to the same effect, Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8). | 19 The Commission' s second submission must therefore be upheld .
The third submission | 0 |
867,744 | 48 If an agreement, decision or practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant (Case C-306/96 Javico [1998] ECR I-1983, paragraph 16). | 42 In order to facilitate consideration of the state of transposition of the Directive, at the hearing the Spanish Government communicated to the Commission and the Court a table which indicates, in respect of each autonomous community and each class of projects listed in Annex II, whether the transposition of the Directive has already been carried out or remains to be achieved, and it requested the Court to carry out a detailed examination of the national and regional legislation in order systematically to make clear the infringement. | 0 |
867,745 | 73. Moreover, it is clear from the case-law that a trader’s choice between exempt transactions and taxable transactions may be based on a range of factors, including tax considerations relating to the VAT system (see, in particular, BLP Group , paragraph 26, and Case C-108/99 Cantor Fitzgerald International [2001] ECR I-7257, paragraph 33). Where the taxable person chooses one of two transactions, the Sixth Directive does not require him to choose the one which involves paying the highest amount of VAT. On the contrary, as the Advocate General observed in point 85 of his Opinion, taxpayers may choose to structure their business so as to limit their tax liability. | 32. D’autre part, il ressort du dossier que cette demande de prolongation ne comportait aucune motivation permettant à la Commission de se prononcer par une décision circonstanciée. | 0 |
867,746 | 70
With regard to whether the first ground of appeal is well founded, it must be borne in mind that the Court of Justice has held on many occasions that, although the EU rules in force until the end of 1999 do not lay down a time limit for the adoption of a decision on financial corrections by the Commission, since 2000 that has, however, been subject to compliance with a time limit laid down in EU law (see judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 75 to 82; of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 75 to 82; of 22 October 2014, Spain v Commission, C‑429/13 P, EU:C:2014:2310, paragraph 29; of 4 December 2014, Spain v Commission, C‑513/13 P, not published, EU:C:2014:2412, paragraph 36; of 24 June 2015, Germany v Commission, C‑549/12 P and C‑54/13 P, EU:C:2015:412, paragraph 81, and of 24 June 2015, Spain v Commission, C‑263/13 P, EU:C:2015:415, paragraph 50). | 61. In view of the foregoing, the answer to the fourth question must be that, under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site’s conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.
Fifth question | 0 |
867,747 | 51. In the present case, by requiring vehicles to undergo a mandatory roadworthiness test prior to registration by a different owner, the Belgian authorities make all vehicles which change ownership and have previously been registered in other Member States undergo such testing in a general and systematic way, without taking any account whatsoever of tests that may already have been carried out by those Member States. Therefore, that non-periodic test, inasmuch as it is carried out in addition to roadworthiness tests recently effected in other Member States, the results of which are not recognised, may deter certain interested individuals from purchasing such vehicles coming from other Member States (see, by analogy, Case C-297/05 Commission v Netherlands , paragraph 73, and Case C-170/07 Commission v Poland , paragraph 44). | 76. It must be borne in mind that, where a Member State has implemented Article 4(6) of that decision without, however, laying down specific conditions relating to the application of that provision, it is for the executing judicial authority to make an overall assessment in order to determine, initially, whether the person concerned falls within the scope of the provision. A single factor characterising the requested person, such as the length of time that person has resided in the Member State concerned, cannot, in principle, have a conclusive effect of itself (see, to that effect, Kozłowski , paragraph 49). | 0 |
867,748 | 14 So far as concerns the Greek legislation called in question in this case by the Commission, those conditions are fulfilled. | 113. In that regard, it must be noted that a European Union institution, when assessing a request for access to documents held by it, may take into account more than one of the grounds for refusal set out in Article 4 of Regulation No 1049/2001. | 0 |
867,749 | 34 As the French Government and the Commission have already pointed out, the Court has held, in paragraphs 19 and 20 of its judgment in Commission v France, cited above, that the supplementary retirement pension schemes introduced under agreements concluded by the competent authorities with trade or inter-trade bodies, trade-union organisations or individual undertakings or under collective agreements concluded by both sides of industry, membership of which has been rendered compulsory by Article L 731-5 of the Social Security Code, do not constitute legislation within the meaning of the first subparagraph of Article 1(j) of Regulation No 1408/71. | 34. Par conséquent, c’est à bon droit que le Tribunal a rejeté le grief de SGL relatif à la prise en compte de la valeur de la consommation captive comme irrecevable. | 0 |
867,750 | 29. However, only activities of an economic nature are covered by that provision (see, to that effect, Case C‑306/94 Régie dauphinoise [1996] ECR I‑3695, paragraph 15; Case C‑77/01 EDM [2004] ECR I‑4295, paragraph 47; Case C‑465/03 Kretztechnik [2005] ECR I‑4357, paragraph 18; and T-Mobile Austria and Others , cited above, paragraph 34). | 92 It is not inconceivable that overriding requirements relating to the general interest, such as the protection of the interests of creditors, minority shareholders, employees and even the taxation authorities, may, in certain circumstances and subject to certain conditions, justify restrictions on freedom of establishment. | 0 |
867,751 | 33 As to the alleged breach of the principle of proportionality, it must be pointed out that, according to the case-law of the Court, in order to establish whether a provision of Community law complies with that principle, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see, in particular, Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraph 54). | 66. The Member State is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment. | 0 |
867,752 | 80. According to settled case-law, workers taking maternity leave provided for by national legislation are in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or with that of a woman actually at work, or on sick leave (see, to that effect, Case C‑342/93 Gillespie and Others [1996] ECR I‑475, paragraph 17; Case C‑411/96 Boyle and Others [1998] ECR I‑6401, paragraph 40; and Alabaster , paragraph 46). | 19 It follows from the foregoing considerations that the national legislation at issue corresponds to a legitimate objective of social policy, involves supplements suitable and requisite for attaining that aim and is therefore justified by reasons unrelated to discrimination on grounds of sex. | 0 |
867,753 | 62. That interpretation is borne out by paragraphs 43 and 44 of Monsanto , where the Court held that the transitional regime introduced by Article 8(2) of Directive 91/414 corresponds to the solution adopted in Article 16(1) of Directive 98/8. | 30. In the present case, however, the Court takes the view, after hearing the Advocate General, that it has all the information necessary for it to answer the questions referred. The application for the oral procedure to be reopened must therefore be rejected. | 0 |
867,754 | 17. It follows that, as the Advocate General notes, in essence, in points 33 to 36 of his Opinion, for the provisions of the Authorisation Directive to be applicable to a tax such as that at issue in the main proceedings, the trigger for that tax must be linked to a general authorisation procedure, which ensures, under Article 2(2)(a) of the Authorisation Directive, rights for the provision of electronic communications networks or services (see, to that effect, judgments in Commission v France , C‑485/11, EU:C:2013:427, paragraphs 30, 31 and 34; Vodafone Malta and Mobisle Communications , C‑71/12, EU:C:2013:431, paragraphs 24 and 25; and Fratelli De Pra and SAIV , C‑416/14, EU:C:2015:617, paragraph 41). | 84 Accordingly, the Commission has adduced sufficient evidence to show that biological and chemical waste has been discharged into the watercourse which bisects the San Rocco valley. | 0 |
867,755 | 26
The Italian Republic contends that the General Court correctly required the Commission, for the purposes of reclassifying the existing aid as new aid, to provide evidence that the infringement of the authorisation conditions for the existing aid scheme constitutes a substantial alteration to that scheme, which, in the opinion of that Member State, must be assessed having regard to Article 4(1) of Regulation No 794/2004. It is apparent from the case-law that it is only where the alteration made to existing aid is not clearly severable from the original aid scheme and that alteration also affects the actual substance of that original scheme that the latter is transformed into a new aid scheme (judgment of the Court of Justice of 9 October 1984, Heineken Brouwerijen, 91/83 and 127/83, EU:C:1984:307, paragraphs 21 and 22, and judgment of the General Court of 30 April 2002, Government of Gibraltar v Commission, T‑195/01 and T‑207/01, EU:T:2002:111). Furthermore, it follows from the case-law of the Court of Justice that the criteria laid down by case-law also apply where the alteration constitutes an infringement of the authorisation conditions for an existing aid scheme (judgment of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraphs 91, 94 and 95). | 73. As is apparent from the second paragraph of the preamble to the Framework Agreement and from paragraphs 6 and 8 of its general considerations, the benefit of stable employment is viewed as a major element in the protection of workers, whereas it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers (judgments in Adeneler and Others , EU:C:2006:443, paragraph 62, and Fiamingo and Others , EU:C:2014:2044, paragraph 55). | 0 |
867,756 | 45 It must also be remembered that the aim of Article 13(A) of the Sixth Directive is to exempt from VAT certain activities which are in the public interest. That provision does not however provide exemption from the application of VAT for every activity performed in the public interest, but only for those which are listed and described in great detail in it (see, in particular, Institute of the Motor Industry, paragraph 18). | 52. Dans ces conditions, il y a lieu de relever que de tels objectifs peuvent être légitimement poursuivis par les États membres. | 0 |
867,757 | 43. The freedom to provide services may, however, be restricted by national regulations justified on the grounds set out in Article 46(1) EC in conjunction with Article 55 EC or by overriding reasons in the public interest (see, to that effect, Case C‑262/02 Commission v France , paragraph 23), to the extent that there are no Community harmonising measures providing for measures necessary to ensure those interests are protected (see, to that effect, in the context of the free movement of goods, Case C-323/93 Centre d’insémination de la Crespelle [1994] ECR I-5077, paragraph 31 and case-law cited). | 113. It follows in particular that each Member State retains the right to require any operator wishing to offer games of chance to consumers in its territory to hold an authorisation issued by its competent authorities, without the fact that a particular operator already holds an authorisation issued in another Member State being capable of constituting an obstacle. | 0 |
867,758 | 24. In this regard, it should be noted at the outset that, according to settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is bound, in principle, to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑18/01 Korhonen and Others [2003] ECR I‑5321, paragraph 19; and Case C‑295/05 Asemfo [2007] ECR I‑2999, paragraph 30). | 15 Accordingly a holding company which does not itself execute works may not, because its subsidiaries which do carry out works are separate legal persons, be precluded on that ground from participation in public works contract procedures. | 0 |
867,759 | 47. Contrary to the German Government’s submissions, the judgment in DaimlerChrysler , cited above, cannot lead to a different conclusion. It is true that the Court held in paragraph 44 of that judgment that the use in a Community provision of the words ‘in accordance with the Treaty’ could not be construed as meaning that a national measure that satisfied the requirements of that provision had to be subject to a further and separate review of its compatibility with the Treaty provisions relating to the free movement of goods. | 55. In that connection, it must be recalled, in the first place, that EU law does not detract from the power of the Member States to organise their public health and social security systems (see to that effect, in particular, judgments in Sodemare and Others , C‑70/95, EU:C:1997:301, paragraph 27 and the case-law cited, and Blanco Pérez and Chao Gómez , C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 43 and the case-law cited). | 0 |
867,760 | 17. However, the referring court, still implicitly relying on the judgment in AG2R Prévoyance (C‑437/09, EU:C:2011:112), adopts the analysis in paragraphs 66 to 81 of that judgment and consequently considers that neither the addendum at issue nor the order extending the agreement is unlawful from the point of view of Articles 102 TFEU and 106 TFEU. It also rejects, as unrelated to those articles, the complaint that the appointment of the insurer was not preceded by any call for tenders. | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
867,761 | 17. In addition, it should be pointed out that Article 17(2) of the Sixth Directive sets out, in explicit and precise terms, the principle of the taxable person’s right to deduct the amounts invoiced as VAT for goods supplied or services rendered to him, in so far as such goods or services are used for the purposes of his taxable transactions (see Metropol and Stadler , paragraph 43; Case C‑371/07 Danfoss and AstraZeneca [2008] ECR I-0000, paragraph 27; and Case C‑414/07 Magoora [2008] ECR I‑0000, paragraph 29). | 36. In that regard, it is to be observed that the transitional provisions in the Law on games of chance impose conditions liable to affect the marketing of low-prize gaming machines. The prohibition on issuing, extending or amending authorisations for activity relating to gaming on low-prize machines outside casinos is such as to directly affect trade in low-prize gaming machines. | 0 |
867,762 | 39 As the Advocate General has explained in point 37 of his Opinion, it follows from the case-law (see Joined Cases 9/77 and 10/77 Bavaria Fluggesellschaft and Germanair v Eurocontrol [1977] ECR 1517, paragraph 4, and Case 148/84 Deutsche Genossenschaftsbank v Brasserie du Pêcheur [1985] ECR 1981, paragraph 17), firstly, that the Convention established an enforcement procedure which constitutes an autonomous and complete system independent of the legal systems of the Contracting States and, secondly, that the principle of legal certainty in the Community legal system and the objectives of the Convention in accordance with Article 220 of the EEC Treaty, which is at its origin, require a uniform application in all Contracting States of the Convention rules and the relevant case-law of the Court. | 34. The Court has always emphasised that while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, the fact still remains that, in the European Union context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (see, inter alia, Jipa , paragraph 23). | 0 |
867,763 | 25. In that regard, it should be borne in mind that the Court may, of its own motion, examine whether the conditions laid down in Article 226 EC for bringing an action for failure to fulfil obligations are satisfied (Case C‑439/99 Commission v Italy [2002] ECR I‑305, paragraph 8; Case C‑98/04 Commission v United Kingdom [2006] ECR I‑4003, paragraph 16; and Case C‑343/08 Commission v Czech Republic [2010] ECR I‑275, paragraph 25). | 25. In those circumstances, the tax situation of a company which has its registered office in Germany and has a permanent establishment in another Member State is less favourable than it would be if the latter were to be established in Germany. By reason of that difference in tax treatment, a German company could be discouraged from carrying on its business through a permanent establishment situated in another Member State. | 0 |
867,764 | 35. According to the case-law of the Court, removal from customs supervision must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from carrying out the monitoring required by Community customs legislation (see Case C-66/99 D. Wandel [2001] ECR I-873, paragraph 47; Case C‑371/99 Liberexim [2002] ECR I-6227, paragraph 55; Case C-337/01 Hamann International [2004] ECR I-1791, paragraph 31; and Case C-222/01 British American Tobacco [2004] ECR I‑4683, paragraph 47). | 55 According to paragraph 47 of the judgment in D. Wandel that `removal' must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for by the Community customs rules. | 1 |
867,765 | 155. As regards the extent of judicial review, it is apparent from EU case-law that where the General Court is seised, in accordance with Article 263 TFEU, of an action for annulment of a decision applying Article 81(1) EC, the General Court must as a general rule undertake, on the basis of the evidence adduced by the applicant in support of the pleas in law put forward, a full review of the question whether or not the conditions for the application of that provision are met (see, to that effect, judgments in Remia and Others v Commission , EU:C:1985:327, paragraph 34; Chalkor v Commission , C‑386/10 P, EU:C:2011:815, paragraphs 54 and 62; and Otis and Others , C‑199/11, EU:C:2012:684, paragraph 59). The General Court must also establish of its own motion that the Commission has stated reasons for its decision (see, to that effect, judgments in Chalkor v Commission , EU:C:2011:815, paragraph 61 and the case-law cited, and Otis and Others , EU:C:2012:684, paragraph 60). | 69. A finding that an aid measure is not necessary can arise in particular from the fact that the aid project has already been started, or even completed, by the undertaking concerned prior to the application for aid being submitted to the competent authorities. In such a case, the aid concerned cannot operate as an incentive. | 0 |
867,766 | 64. It is settled case‑law that, in the context of an action brought on the basis of Article 226 EC, the reasoned opinion and the action must set out the Commission’s complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of European Union law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged (see, in particular, Commission v United Kingdom , paragraph 18, and Case C‑66/06 Commission v Ireland , paragraph 31). | 103. En ce qui concerne, d’abord, les conditions de travail, il n’y a pas de «lien de subordination», au sens de l’article 4, paragraphe 4, de la sixième directive, dès lors que les registradores-liquidadores se procurent et organisent eux-mêmes, dans les limites prévues par les dispositions réglementaires et conventionnelles pertinentes, les moyens en personnel et en matériel nécessaires à l’exercice de leurs activités. | 0 |
867,767 | 100. As the Court has already held on many occasions, the renewal of fixed-term employment contracts or relationships in order to cover needs which are, in fact, not temporary in nature but, on the contrary, fixed and permanent is not justified for the purposes of clause 5(1)(a) of the Framework Agreement. Such use of fixed-term employment contracts or relationships conflicts directly with the premiss on which the Framework Agreement is founded, namely that employment contracts of indefinite duration are the general form of employment relationship, even though fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (judgment in Kücük , EU:C:2012:39, paragraphs 36 and 37 and the case-law cited). | 70 It follows that Article 86 prohibits a dominant undertaking from eliminating a competitor and thereby strengthening its position by using methods other than those which come within the scope of competition on the basis of quality. From that point of view, however, not all competition by means of price can be regarded as legitimate. | 0 |
867,768 | 32
Moreover, the right to be heard must allow that authority to investigate the matter in such a way that it adopts a decision in full knowledge of the facts, while taking account of all relevant factors, and to state reasons for that decision adequately, so that, where appropriate, the applicant can exercise his right of appeal (see, to that effect, judgments of 18 December 2008, Sopropé, C‑349/07, EU:C:2008:746, paragraph 49, and of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 59). | 158. An undertaking may thus have participated directly in all the forms of anti-competitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anti-competitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anti-competitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment in Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 43). | 0 |
867,769 | 37 In order to answer the question whether detention under customs control of goods in transit, as provided for under the French legislation, is justified by the exception referred to in Article 36 of the Treaty relating to industrial and commercial property, it is necessary to take account of the purpose of that exception, which is to reconcile the requirements of the free movement of goods and the right of industrial and commercial property, by avoiding the maintenance or establishment of artificial barriers within the common market. Article 36 allows derogations from the fundamental principle of the free movement of goods within the common market only to the extent to which such derogations are justified for the purpose of safeguarding rights which constitute the specific subject-matter of such property (see, inter alia, Case C-10/89 CNL-SUCAL v HAG [1990] ECR I-3711, paragraph 12; and Case C-61/97 FDV v Laserdisken [1998] ECR I-5171, paragraph 13). | 17 A taxable person performing a transaction in a private capacity does not act as a taxable person. | 0 |
867,770 | 59 However, as the United Kingdom Government and the Commission have correctly pointed out, under the Court's case-law a national authority's use of a public-policy derogation presupposes that there is a genuine and sufficiently serious threat affecting one of the fundamental interests of society (see Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 8, Case C-348/96 Calfa [1999] ECR I-11, paragraph 21, and, on the interpretation of the provisions adopted within the context of the association arrangements between the European Economic Community and Turkey, Case C-340/97 Nazli [2000] ECR I-957, paragraphs 56 to 61). | 54. D’emblée, il convient de rappeler que la procédure négociée revêt un caractère exceptionnel, l’article 6, paragraphes 2 et 3, de la directive 93/36 énumérant limitativement et expressément les seules exceptions pour lesquelles le recours à la procédure négociée est permis (arrêt du 8 avril 2008, Commission/Italie, C‑337/05, Rec. p. I‑2173, point 56 et jurisprudence citée). | 0 |
867,771 | 44. In the context of that cooperation, it is for the national court seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see to that effect, inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59; Case C‑379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; Case C‑153/00 Der Weduwe [2002] ECR I‑11319, paragraph 31; Case C‑318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I‑905, paragraph 41; and Schmidberger , paragraph 31). | Les exceptions d’irrecevabilité soulevées par le Conseil à l’encontre du premier moyen doivent dès lors être rejetées. | 0 |
867,772 | 22 It must next be borne in mind that it is settled case-law that recovery of unlawful aid is the logical consequence of a finding that it is unlawful (see, in particular, Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraph 16, and Commission v Portugal, cited above, paragraph 38). | 35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71. | 0 |
867,773 | 32. However, it is clear from settled case-law that national legislation which constitutes a measure having equivalent effect to quantitative restrictions can be justified on one of the grounds of public interest laid down in Article 36 TFEU or by imperative requirements. In either case, the national provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it (see, in particular, Commission v Netherlands , paragraph 75; Commission v Poland , paragraph 46; and Case C‑421/09 Humanplasma [2010] ECR I‑0000, paragraph 34). | 50. With respect to the right to furnish proof of the place where the offence or irregularity was committed, it must be observed that Articles 454 and 455 of the implementing regulation do not specify the person who must or may furnish that proof, and in any event do not exclude the possibility of that proof being furnished by the guaranteeing association. | 0 |
867,774 | 19. Under Articles 2 and 3 of Regulation No 1222/94, when the goods contain agricultural products in various quantities, also covered by that regulation, the refund amount to be granted is calculated on the basis of the quantity of agricultural products actually used in the manufacture of those exported goods (see, to that effect, Case C‑542/03 Milupa [2005] ECR I‑3989, paragraph 21). | 43
Moreover, in so far as the activity in question may be classified as ‘economic’, the fact that it is carried on by a religious community does not preclude the application of the rules of the Treaty, including those governing competition law (see, to that effect, judgment of 5 October 1988, Steymann, 196/87, EU:C:1988:475, paragraphs 9 and 14). | 0 |
867,775 | 58. In any event, the Court has already had occasion to state that a regulation specifying the conditions for classification in a tariff heading or subheading of the CN cannot have retroactive effect (see, to that effect, Siemens , 30/71, EU:C:1971:111, paragraph 8; Gervais-Danone , 77/71, EU:C:1971:129, paragraph 8; and Biegi , 158/78, EU:C:1979:87, paragraph 11). | 33. However, it is also apparent from Marks & Spencer , paragraph 39, that in order to serve their purpose of ensuring legal certainty, limitation periods must be fixed in advance. A situation marked by significant legal uncertainty may involve a breach of the principle of effectiveness, because reparation of the loss or damage caused to individuals by breaches of Community law for which a Member State can be held responsible could be rendered excessively difficult in practice if the individuals were unable to determine the applicable limitation period with a reasonable degree of certainty. | 0 |
867,776 | 26
It is apparent from the settled case-law of the Court that the four-year limitation period referred to in Article 3(1) of Regulation No 2988/95 is applicable both to the irregularities leading to the imposition of an administrative penalty, within the meaning of Article 5 of that regulation, and to irregularities, such as those at issue in the main proceedings, which are penalised by an administrative measure resulting in the withdrawal of the advantage wrongly obtained, in accordance with Article 4 of that regulation (see, to that effect, judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 23 and the case-law cited). | 21 It must therefore be held that the contested Belgian rules, in so far as they preclude the application of the procedure laid down in the directive and introduce an absolute prohibition on the import into Wallonia of hazardous waste, are not consistent with the directive in question even though they provide that certain derogations may be granted by the relevant authorities.
Articles 30 and 36 of the Treaty | 0 |
867,777 | 67. For the purposes of that provision, there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration (see, in relation to free movement of workers, in particular Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 17, and Martínez Sala , paragraph 32). | 11 THE POSITION WOULD BE DIFFERENT ONLY IF THE CHARGE IN QUESTION IS THE CONSIDERATION FOR A BENEFIT PROVIDED IN FACT FOR THE EXPORTER REPRESENTING AN AMOUNT PROPORTIONATE TO THE SAID BENEFIT OR IF IT RELATED TO A GENERAL SYSTEM OF INTERNAL DUES APPLIED SYSTEMATICALLY IN ACCORDANCE WITH THE SAME CRITERIA TO DOMESTIC PRODUCTS AND IMPORTED PRODUCTS ALIKE .
| 0 |
867,778 | 48. It should further be noted that the purpose of Article 22(1)(c)(i) of Regulation No 1408/71 is to confer a right to the services in kind provided, on behalf of the competent institution, by the institution of the place where the treatment is provided, in accordance with the provisions of the legislation of the Member State in which the services are provided as if the person concerned were registered with that institution (see Inizan , paragraph 20). The applicability of Article 22 of Regulation No 1408/71 to the situation in question does not mean that the person concerned may not simultaneously have the right under Article 49 EC to have access to healthcare in another Member State under rules on the assumption of costs different from those laid down by Article 22 (see to that effect Case C‑368/98 Vanbraekel and Others [2001] ECR I-5363, paragraphs 37 to 53). | 27. Secondly, recital 15 in the preamble to the regulation states that the rules on jurisdiction as they result from Regulation No 44/2001 should be adapted in order to preserve the interests of maintenance creditors and to promote the proper administration of justice within the European Union. | 0 |
867,779 | 80. According to equally consistent case-law, the criteria for assessing the distinctive character of three-dimensional marks consisting of the appearance of the product itself are no different from those applicable to other categories of trade mark. None the less, for the purpose of applying those criteria, the average consumer’s perception is not necessarily the same in t he case of a three-dimensional mark consisting of the appearance of the product itself as it is in the case of a word or figurative mark consisting of a sign which is independent of the appearance of the products it denotes. Average consumers are not in the habit of making assumptions as to the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element, and it may therefore prove more difficult to establish distinctiveness in relation to such a three-dimensional mark than in relation to a word or figurative mark (Case C‑136/02 P Mag Instrument v OHIM [2004] ECR I‑9165, paragraph 30, and Storck v OHIM , paragraphs 24 and 25). | 17 It should next be stated that the public interest in the protection of the recipients of the services in question against such harm justifies a restriction of the freedom to provide services. However, such a provision goes beyond what is necessary to protect that interest if it makes the pursuit, by way of business, of an activity such as that at issue, subject to the possession by the persons providing the service of a professional qualification which is quite specific and disproportionate to the needs of the recipients. | 0 |
867,780 | 67. In paragraph 184 of the judgment under appeal, the General Court rightly pointed out that where, following the annulment of a decision penalising undertakings which have infringed Article 81(1) EC because of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission is to adopt a fresh decision, with substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 83 to 111). | 28. By contrast, the award of contracts is based on the criteria set out in Article 36(1) of Directive 92/50, namely, the lowest price or the economically most advantageous tender (see, to that effect, in relation to works contracts, Beentjes , paragraph 18). | 0 |
867,781 | 55. In that regard, in addition to the undertaking in receipt of aid, competing undertakings have been recognised as individually concerned by a Commission decision terminating the formal examination procedure where they have played an active role in that procedure, provided that their position on the market is substantially affected by the aid which is the subject of the contested decision (see, inter alia, Cofaz and Others v Commission , paragraph 25, and Comité d’entreprise de la Société française de production and Others v Commission , paragraph 40). | 32. The reason for pursuing that objective is the need to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law (see, to that effect, Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paragraph 3, and Case C‑399/11 Melloni [2013] ECR, paragraph 60). However, there is nothing in the order for reference to suggest that any such risk is involved in the case before the referring court. | 0 |
867,782 | De surcroît, il y a lieu de rappeler que selon une jurisprudence constante de la Cour, un État membre ne saurait exciper de situation de son ordre interne pour justifier le non-respect des obligations et des délais résultant du droit de l’Union. En particulier, d’une part, les coûts liés à l’exécution complète des obligations découlant d’une directive ne sauraient justifier le non-respect de ces obligations (voir, en ce sens, arrêts du 18 octobre 2012, Commission/Royaume-Uni, C‑301/10, EU:C:2012:633, point 66, et du 6 novembre 2014, Commission/Belgique, C‑395/13, EU:C:2014:2347, point 51). D’autre part, l’exercice de voies de recours juridictionnelles, telles que celles invoquées au regard des décharges de Torremolinos (Malaga), de Montaña Los Giles (La Laguna, Tenerife), de La Serratilla (Abanilla) ou de Las Rellanas (Santomera), est sans incidence sur le bien-fondé d’un grief formulé dans le cadre d’une procédure en manquement (arrêt du 25 février 2016, Commission/Espagne, C‑454/14, non publié, EU:C:2016:117, point 45 et jurisprudence citée). | 43. A national law which allowed the purchaser of excise stamps to obtain reimbursement simply by claiming that they had gone missing would be likely to encourage abuse and evasion. The prevention of abuse and evasion is precisely one of the objectives pursued by Community law. | 0 |
867,783 | 49
Furthermore, and as is clear from paragraph 1 above, it must be pointed out that the Commission has, in particular in the application, taken care to refer to, for each of the complaints relied upon, not only the article at issue from Directive 2012/34 but also the corresponding provision in Directives 91/440 and 2001/14, thereby excluding any uncertainty as to the identification of the EU law in the light of which the merits of that action fall to be assessed or with regard to the scope of the alleged failure to fulfil obligations (see, by analogy, judgment of 22 October 2014, Commission v Netherlands, C‑252/13, EU:C:2014:2312, paragraphs 35 to 37). | 20
The Court also held that Article 5(2)(b) of Directive 2001/29 imposes on a Member State which has introduced the private copying exception into its national law an obligation to achieve a certain result, in the sense that that State must ensure, in accordance with its territorial competence, the effective recovery of the fair compensation for the harm suffered by the holders of the exclusive right of reproduction on the territory of that State (see, to that effect, judgments of 16 June 2011 in Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraphs 34 to 36, 39 and 41, and 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraphs 32 and 57 to 59). | 0 |
867,784 | 46. As regards, first, the admissibility of this ground of appeal, it is clear from Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal is limited to points of law and must be based on grounds of lack of jurisdiction of the Court of First Instance, breach of procedure before it which adversely affects the interests of the applicant, or infringement of Community law by the Court of First Instance (see, to that effect, inter alia Case C‑284/98 P Parliament v Bieber [2000] ECR I‑527, paragraph 30; order in Case C‑420/04 P Gouvras v Commission [2005] ECR I‑7251, paragraph 48; and order of 20 March 2007 in Case C‑323/06 P Kallianos v Commission , paragraph 10). | 38. A tax such as the registration duty is not a customs duty in the strict sense. | 0 |
867,785 | 37 The reason for this mitigation of the burden of proof on the Commission is that it is the State which is best placed to collect and check the data required for the clearance of EAGGF accounts, and which is consequently required to adduce the most detailed and comprehensive evidence that its figures are accurate and, if appropriate, that the Commission's calculations are incorrect (Netherlands v Commission, cited above, paragraph 17; Case C-59/97 Italy v Commission [1999] ECR I-1683, paragraph 55). In the event of a dispute, it is for the Commission to prove that the rules of the common organisation of the agricultural markets have been infringed and, once it has established such an infringement, the Member State concerned must then, if appropriate, demonstrate that the Commission made an error as to the financial consequences to be inferred from that infringement (Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 19, Netherlands v Commission, cited above, paragraph 18, and Case C-59/97 Italy v Commission, cited above, paragraph 55). | 68 As the Court held in its judgment in the Battery Hens case, cited above, that means that only simple corrections of spelling and grammar may be made to the text of an act after its formal adoption by the college of Commissioners, any further alteration being the exclusive province of the college. | 0 |
867,786 | 65. Since that provision was not repealed after the reunification of Germany either by the Treaty on European Union or by the Treaty of Amsterdam, it cannot, in the light of the objective scope of the rules of Community law, be presumed that it has been devoid of purpose since that reunification (see Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraphs 47 and 48, and Case C-334/99 Germany v Commission [2003] ECR I-1139, paragraph 116). | 37. That being so, it must be concluded that the first indent of Article 38(1) of the Association Agreement with Slovakia applies to a rule drawn up by a sports federation such as the DHB which determines the conditions under which professional sportsmen engage in gainful employment.
The scope of the principle of non-discrimination set out in the first indent of Article 38(1) of the Association Agreement with Slovakia | 0 |
867,787 | 56
Since the conditions laid down in the judgment of 24 July 2003, Altmark (C‑280/00, EU:C:2003:415), and those necessary for the application of Article 106(2) TFEU thus generally pursue different objectives, the Court held that, in order to assess an aid measure under Article 106(2) TFEU, the Commission is not required to examine whether the second and third conditions laid down by the judgment of 24 July 2003, Altmark (C‑280/00, EU:C:2003:415), are satisfied (see, to that effect, judgment of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 33). It is nevertheless the case that, as the Advocate General emphasised in point 97 of his Opinion, the first Altmark condition, according to which the recipient undertaking must actually be required to discharge public service obligations which must be clearly defined, also applies where the derogation laid down in Article 106(2) TFEU has been invoked (see, to that effect, judgments of 21 March 1974, BRT and Société belge des auteurs, compositeurs et éditeurs, 127/73, EU:C:1974:25, paragraph 22, and of 11 April 1989, Saeed Flugreisen and Silver Line Reisebüro, 66/86, EU:C:1989:140, paragraph 56). | 12. En outre, un État membre ne saurait exciper de dispositions, pratiques ou situations de son ordre juridique interne pour justifier l’inobservation des obligations résultant du droit communautaire (voir, notamment, arrêt du 18 juillet 2007, Commission/Allemagne, C-503/04, Rec. p. I‑6153, point 38). Les États membres doivent adopter dans le délai fixé les dispositions législatives nécessaires à la mise en œuvre des directives. | 0 |
867,788 | 40. Moreover, it should be noted that, according to the Court’s case-law, first, the mere fact that contracting authorities allow bodies which receive subsidies enabling them to submit tenders at prices appreciably lower than those of competing, unsubsidised, tenderers to take part in a procedure for the award of a public contract does not amount to a breach of the principle of equal treatment and, second, if the Community legislature had intended to require contracting authorities to exclude such tenderers, it would have stated this explicitly ( ARGE, paragraphs 25 and 26). | 60. Apart from the fact that it cannot be ruled out that a company resident in a Member State other than the Federal Republic of Germany may have shareholders who are resident in Germany, comparing the tax burden on dividends paid to non-resident companies with the overall tax burden on dividends where a resident company in receipt of dividends redistributes them to its resident shareholders amounts to comparing systems and situations which are not comparable, namely, on the one hand, natural persons in receipt of national dividends and their income tax arrangements and, on the other, capital companies in receipt of dividends leaving the country and the withholding tax levied by the Federal Republic of Germany (see, to that effect, Commission v Italy , paragraph 43). | 0 |
867,789 | 48. Pursuant to the case-law of the Court, in the absence of unifying or harmonising measures at Community level, the Member States retain competence for determining the criteria for taxation on income and capital with a view to eliminating double taxation by means, inter alia, of international agreements. In that context, the Member States are free to determine the connecting factors for the allocation of fiscal jurisdiction in bilateral agreements for the avoidance of double taxation (see, inter alia, Case C‑307/97 Saint-Gobain ZN [1999] ECR I‑6161, paragraph 57; Case C‑385/00 de Groot [2002] ECR I‑11819, paragraph 93; Case C‑265/04 Bouanich [2006] ECR I‑923, paragraph 49). | 33 Second, it should be noted that under Article 8(1) of Regulation No 338/97 all commercial use of specimens of the species listed in Annex A to that regulation is prohibited. | 0 |
867,790 | 50. In that regard, it must be recalled, in the first place, that it is clear from the Court’s well-established case-law that the concept of ‘worker’ in EU law extends to a person who serves a traineeship or periods of apprenticeship in an occupation that may be regarded as practical preparation related to the actual pursuit of the occupation in question, provided that the periods are served under the conditions of genuine and effective activity as an employed person, for and under the direction of an employer. The Court has stated that that conclusion cannot be invalidated by the fact that the productivity of the person concerned is low, that he does not carry out full duties and that, accordingly, he works only a small number of hours per week and thus receives limited remuneration (see, to that effect, inter alia, judgments in Lawrie-Blum , 66/85, EU:C:1986:284, paragraphs 19 to 21; Bernini , C‑3/90, EU:C:1992:89, paragraphs 15 and 16; Kurz , C‑188/00, EU:C:2002:694, paragraphs 33 and 34, and Kranemann , C‑109/04, EU:C:2005:187, paragraph 13). | 27 Secondly, it follows from Articles 27 to 30 of the Staff Regulations that the list of suitable candidates drawn up by the Selection Board is intended to enable the appointing authority to choose the candidate who appears to it to be best able to perform the duties relating to the post to be filled. | 0 |
867,791 | 46. Lastly, having regard to the fact that it cannot be ruled out that Articles 6b and 23 of the CISA may be applicable, ratione temporis , in Case C‑261/08 (see paragraphs 37 and 38 of this judgment), as the Austrian Government and the Commission of the European Communities suggest, it is appropriate to take those articles of the CISA into account when examining the question referred for a preliminary ruling in order to provide the referring court with an answer which will be of use to it (see, by analogy, Case C‑275/06 Promusicae [2008] ECR I‑271, paragraph 46, and Case C‑346/06 Rüffert [2008] ECR I‑1989, paragraph 18). | 65ON THE OTHER HAND , SO LONG AS THE TRANSITIONAL PERIOD LAID DOWN IN ARTICLE 102 OF THE ACT OF ACCESSION HAS NOT EXPIRED AND THE COMMUNITY HAS NOT YET FULLY EXERCISED ITS POWER IN THE MATTER , THE MEMBER STATES ARE ENTITLED , WITHIN THEIR OWN JURISDICTION , TO TAKE APPROPRIATE CONSERVATION MEASURES WITHOUT PREJUDICE , HOWEVER , TO THE OBLIGATION TO CO-OPERATE IMPOSED UPON THEM BY THE TREATY , IN PARTICULAR ARTICLE 5 THEREOF .
| 0 |
867,792 | La circonstance que, en vertu de l’annexe du règlement n° 2015/1862, le nom de la requérante ait été retiré de la liste des
entités visées par l’annexe IX du règlement n° 267/2012 depuis le 16 janvier 2016 n’est pas de nature à faire perdre à celle-ci
tout intérêt à obtenir l’annulation de son inscription et, partant, à priver le présent pourvoi de son objet. En effet, compte
tenu des conséquences sur sa réputation de l’inscription sur une telle liste, la requérante persiste à avoir un intérêt, à
tout le moins moral, à ce que le juge de l’Union reconnaisse qu’elle n’aurait jamais dû y être inscrite (voir, en ce sens,
arrêt du 28 mai 2013, arrêt Abdulrahim/Conseil et Commission, C‑239/12 P, EU:C:2013:331, points 70 à 72). Il en va de même
à propos de l’intérêt à agir de la requérante en ce qui concerne la décision 2013/661, le gel de ses avoirs en vertu de cette
décision n’étant d’ailleurs que « suspendu » par la décision 2015/1863. | 16. In that regard, it must be pointed out that provisions which preclude or deter a national of a Member State from leaving his country of origin to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (de Groot , paragraph 78). | 0 |
867,793 | 63
In that regard, it should be noted, first, that the objectives of combating fraud and tax evasion and of seeking to safeguard a balanced allocation of taxation powers between the Member States are connected (judgment of 17 December 2015, Timac Agro Deutschland, C‑388/14, EU:C:2015:829, point 47 and the case-law cited) and, secondly, because they constitute overriding reasons in the public interest, they are capable of justifying a restriction on the exercise of freedom of movement guaranteed by the Treaty (judgment of 8 March 2017, Euro Park Service, C‑14/16, EU:C:2017:177, paragraph 65 and the case-law cited). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
867,794 | 36. In the case in the main proceedings, the conditions laid down by the Court in paragraph 37 of the judgment in France v Commission are not met. It is clear that the national authorities cannot actually use the resources resulting from the contributions at issue in the main proceedings to support certain undertakings. It is the inter-trade organisation that decides how to use those resources, which are entirely dedicated to pursuing objectives determined by that organisation. Likewise, those resources are not constantly under public control and are not available to State authorities. | 70. Consequently, it is necessary to rely only on Regulation No 1393/2007 in order to remedy an omission, such as that at issue in the main proceedings. | 0 |
867,795 | 45
According to the settled case-law of the Court, the concept of ‘objective grounds’ requires the unequal treatment found to exist to be justified by precise, specific factors, characterising the employment condition to which it relates, in the particular context in which it occurs and on the basis of objective, transparent criteria in order to ensure that that unequal treatment in fact meets a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose. Those factors may result, in particular, from the specific nature of the tasks for the performance of which fixed-term contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (see, inter alia, judgments of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraphs 53 and 58; of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 55; of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 73, and of 18 October 2012, Valenza and Others, C‑302/11 to C‑305/11, EU:C:2012:646, paragraph 51). | 38. À cet égard, ainsi que M. l’avocat général l’a souligné au point 36 de ses conclusions, les règles procédurales relatives à la structure des voies de recours internes ainsi qu’au nombre de degrés de juridiction, poursuivant un intérêt général de bonne administration de la justice et de prévisibilité, doivent prévaloir sur les intérêts particuliers, en ce sens qu’elles ne peuvent être aménagées en fonction de la situation économique particulière d’une partie. | 0 |
867,796 | 41. It is clear from case-law that Member States have a discretion to recognise certain organisations as being devoted to social wellbeing. However, that discretion must be exercised in accordance with Community law and, in particular, within the limits laid down in Directive 2006/112 (see, to that effect, Case C-141/00 Kügler [2002] ECR I‑6833, paragraphs 54 to 57; Kingscrest Associates and Montecello , paragraphs 51 and 52; and Case C-415/04 Stichting Kinderopvang Enschede [2006] ECR I‑1385, paragraph 23). | 74. The Court therefore has jurisdiction to rule on the second plea. | 0 |
867,797 | 116. After the reunification of Germany that provision was not repealed either by the Treaty on European Union or by the Treaty of Amsterdam (Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 47). | 15 Consequently, in the present case it is necessary to analyse the effects of a beer supply agreement, taken together with other contracts of the same type, on the opportunities of national competitors or those from other Member States, to gain access to the market for beer consumption or to increase their market share and, accordingly, the effects on the range of products offered to consumers. | 0 |
867,798 | 8 In that judgment, the Court held that, as regards the form of an agency contract, Article 13(2) of the Directive mentioned only writing as a requirement for the validity of a contract. Since the Community legislature had dealt exhaustively with the matter, the Member States could not therefore impose any condition other than requiring that a written document be drawn up (Bellone, paragraph 14). | 23 In that regard, it is clear that under the Portuguese legislation capital companies are required to have increases in their share capital recorded in the Commercial Register and when that record is made to pay registration duties, the proceeds of which go to the Fund. The Fund bears not only the costs of setting up and operating the Commercial Register but also the operating costs of the National Register of Legal Persons, the payment of the fixed portion of the salaries payable to notaries and other legal officials, and, following authorisation from the Ministry of Justice, it covers other expenditure arising from the conduct of legal business (see Case C-56/98 Modelo [1999] ECR I-6427, paragraph 20). | 0 |
867,799 | 33. Regulation No 1768/92 thus seeks to make up for that insufficiency by creating an SPC for medicinal products. As is apparent from the ninth recital, the regulation acknowledges, in addition to that objective, the need, in a sector as complex and sensitive as the pharmaceutical sector, to take into account all the interests at stake, including public health, by ensuring that the monopoly on exploitation thus guaranteed does not exceed that which is necessary to cover the investment and does not unduly delay the moment when the product in question comes into the public domain (see, to that effect, AHP Manufacturing , cited above, paragraphs 30 and 39). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
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