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868,100 | 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). | 68
As the Commission has observed, such differences may also be reflected by means of the value of sales that is used in calculating the basic amount of the fine inasmuch as that value reflects, for each participating undertaking, the scale of its involvement in the infringement in question, in accordance with point 13 of the 2006 Guidelines, under which it is possible to take as a starting point for the calculation of the fines an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76). | 0 |
868,101 | 40. Likewise, the first recital in the preamble to Regulation No 1408/71 states that the provisions which that regulation contains for coordination of national social security legislations fall within the framework of freedom of movement of persons and should contribute towards the improvement of their standard of living (see judgments in Bosmann , EU:C:2008:290, paragraph 30, and Hudzinski and Wawrzyniak , EU:C:2012:339, paragraph 47). | 34. Il importe de rappeler qu’il résulte des articles 225 CE et 58, premier alinéa, du statut de la Cour de justice que le Tribunal est seul compétent, d’une part, pour constater les faits, sauf dans le cas où l’inexactitude matérielle de ses constatations résulterait des pièces du dossier qui lui ont été soumises, et, d’autre part, pour apprécier ces faits. Lorsque le Tribunal a constaté ou apprécié les faits, la Cour est compétente pour exercer, en vertu de l’article 225 CE, un contrôle sur la qualification juridique de ces faits et les conséquences de droit qui en ont été tirées par le Tribunal (arrêts du 6 avril 2006, General Motors/Commission, C‑551/03 P, Rec. p. I‑3173, point 51, et du 29 mars 2011, ThyssenKrupp Nirosta/Commission, C‑352/09 P, non encore publié au Recueil, point 179). | 0 |
868,102 | 63. As the Court has already ruled, the intended purpose of products ‘as accessories or spare parts’ was cited by the legislature only by way of example, that being the usual situation in which it is necessary to use a trade mark in order to indicate the intended purpose of a product. The application of Article 6(1)(c) of Directive 89/104 is therefore not limited to that situation ( Gillette Company and Gillette Group Finland , paragraph 32). | 26
That type of contract may have features which are comparable to the acquisition of goods, or it may not, since it is open to the parties to provide that the lessee has the option of acquiring or not acquiring those goods at the end of the lease period (see, to that effect, judgment of 16 February 2012, Eon Aset Menidjmunt, C‑118/11, EU:C:2012:97, paragraphs 34 and 37). | 0 |
868,103 | 49. Il s’ensuit que, contrairement à ce que prétend la Commission, une interprétation purement littérale du régime particulier des agences de voyages fondée sur le texte d’une ou de plusieurs versions linguistiques, à l’exclusion des autres, ne saurait prévaloir. Conformément à une jurisprudence constante, il y a lieu de considérer que les dispositions du droit de l’Union doivent être interprétées et appliquées de manière uniforme à la lumière des versions établies dans toutes les langues de l’Union. En cas de disparité entre les diverses versions linguistiques d’un texte de l’Union, la disposition en cause doit être interprétée en fonction de l’économie générale et de la finalité de la réglementation dont elle constitue un élément (arrêt du 8 décembre 2005, Jyske Finans, C‑280/04, Rec. p. I‑10683, point 31). | 29 The only difference between them is that the non-migrant worker acquires the entirety of his pension entitlements under a single body of legislation, whereas the migrant worker acquires them in sections corresponding to successive periods of work completed in different Member States under different legislative systems. In such situations, Article 51 of the Treaty aims to create, by coordination rather than by harmonization, a unified career, for social security purposes, for the migrant worker. | 0 |
868,104 | 99 As regards members of the Bar, it has consistently been held that, in the absence of specific Community rules in the field, each Member State is in principle free to regulate the exercise of the legal profession in its territory (Case 107/83 Klopp [1984] ECR 2971, paragraph 17, and Reisebüro, paragraph 37). For that reason, the rules applicable to that profession may differ greatly from one Member State to another. | 29. As to the Italian Republic’s argument that it was temporarily absolutely impossible for it to recover the aid in question because of the large number of recipient undertakings and the non-availability of the information necessary for quantifying the sums to be recovered, it should be recalled at the outset that the Court previously refused to accept a similar argument, in paragraphs 22 and 23 of the judgment in Case C‑99/02 Commission v Italy . | 0 |
868,105 | 53. The rules on limitation or on recovery of sums paid though not due must therefore be sought in the national law of the Member State concerned (with regard to the limitation of actions, see Case 35/74 Rzepa [1974] ECR 1241, paragraphs 12 and 13, in relation to Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958 30, p. 561), and to Regulation No 4 of the Council of 3 December 1958 laying down detailed rules for the implementation of and supplementing the provisions of Regulation No 3 (Journal Officiel 1958 30, p. 597), but the result of which is applicable by analogy to Regulations Nos 1408/71 and 574/72). | 32. In those conditions, to infer from the term ‘in particular’ in Article 2(1) of Regulation No 3577/92 that it can extend the scope of that provision to any service related, incidental or ancillary to the provision of maritime transport services within the Member States, whether or not that service has the essential characteristics of maritime cabotage as expressly defined therein, would be contrary not only to the purpose of that regulation, but also to legal certainty as to the scope of that regulation. | 0 |
868,106 | 60
However, it is for the referring court, not the Court of Justice, to ascertain that the Member State concerned has taken all necessary steps enabling it to be in a position at any time to guarantee the right to effective judicial protection in compliance with the principles of equivalence and effectiveness (see, to that effect, inter alia, judgments of 15 April 2008, Impact, C‑268/06, EU:C:2008:223, paragraphs 43 to 55, and of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 176, and orders of 12 June 2008, Vassilakis and Others, C‑364/07, not published, EU:C:2008:346, paragraph 149, and of 24 April 2009, Koukou, C‑519/08, not published, EU:C:2009:269, paragraph 101). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
868,107 | 48. With regard to the present case, the Court takes the view that all the legal and factual circumstances pertaining to the infringement established indicate that effective prevention of future repetition of similar infringements of European Union law requires the adoption of a deterrent measure, such as the imposition of a lump sum payment (see, to that effect, Case C‑369/07 Commission v Greece [2009] ECR I‑5703, paragraph 145, and Case C‑610/10 Commission v Spain , paragraph 142). | 32. However, as the Advocate General noted at point 33 of her Opinion, the judgment in Océ Van der Grinten dealt with a tax levied on a tax credit which did not possess the characteristics of a withholding tax on distributed profits (see Océ Van der Grinten , paragraph 55). | 0 |
868,108 | 13 Consideration classified as pay includes, inter alia, consideration paid by the employer by virtue of legislative provisions and under a contract of employment whose purpose is to ensure that workers receive income even where, in certain cases specified by the legislature, they are not performing any work provided for in their contracts of employment (Case C-360/90 Bötel [1992] ECR I-3589, paragraphs 14 and 15; see also Case C-33/89 Kowalska [1990] ECR I-2591, paragraph 11, and Case C-262/88 Barber [1990] ECR I-1889, paragraph 12, and Gillespie, cited above, paragraph 13). | 30 Matra has thus been unable to demonstrate that, in that analysis and in its consequential appraisal of the financial assistance, the Commission carried out a manifestly erroneous assessment of the economic data. | 0 |
868,109 | 38. Even assuming that the legislation in question does indeed pursue the objective of rewarding workers’ loyalty to their employers, and even though such an objective may conceivably constitute an overriding reason in the public interest (see Case C‑224/01 Köbler [2003] ECR I‑10239, paragraph 83), it must be found that, given the characteristics of that legislation, the obstacle which it entails is not such as to ensure achievement of that objective. | 72
As the Court has already held, the provisions of Regulation No 1393/2007 must be interpreted so as to guarantee, in each specific case, a fair balance between the interests of the applicant and those of the defendant, the addressee of the document, by reconciling the objectives of efficiency and speed of the service of the procedural documents with the need to ensure that the rights of the defence of the addressee of those documents are adequately protected, through, inter alia, the guarantee of actual and effective receipt of those documents (judgment of 16 September 2015, Alpha Bank Cyprus (C‑519/13, EU:C:2015:603) paragraph 33 and the case-law cited). | 0 |
868,110 | 35. Compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of Community law whose observance the Community judicature ensures (Case C-282/95 P Guérin automobiles v Commission [1997] ECR I-1503, paragraphs 36 and 37, and also Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 167 to 171). | 32. En effet, si le montant de la taxe d’immatriculation frappant les véhicules d’occasion importés excède le montant résiduel de celle-ci incorporé dans la valeur des véhicules d’occasion similaires déjà immatriculés sur le marché national, cela risquerait de favoriser la vente de véhicules d’occasion nationaux et de décourager ainsi l’importation de véhicules d’occasion similaires. | 0 |
868,111 | 65 On that point, the Court has already held in Johnson that application of a national rule which does not preclude the bringing of legal proceedings, but merely limits to one year the period prior to submission of the claim in respect of which benefits may be obtained, does not adversely affect the actual right conferred on individuals to rely on Community law. | 75. However, since they derogate from the principle of the widest possible public access to documents, those exceptions must be interpreted and applied strictly ( Sison v Council , paragraph 63; Sweden and Turco v Council , paragraph 36; Sweden and Others v API and Commission , paragraph 73). | 0 |
868,112 | 41. Furthermore, it is settled case-law that the choice between the different methods of calculating the dumping margin, such as those set out in Article 2(11) of the basic regulation, together with the assessment of the normal value of a product or the determination of the existence of harm require an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see, to that effect, Case 240/84 NTN Toyo Bearing and Others v Council [1987] ECR 1809, paragraph 19; Case C-156/87 Gestetner Holdings v Council and Commission [1990] ECR I-781, paragraph 63; and Case C-150/94 United Kingdom v Council [1998] ECR I-7235, paragraph 54). | 43. In those circumstances, both the place of arrival and the place of departure of the aircraft must be considered, in the same respect, as the place of provision of the services which are the subject of an air transport contract. | 0 |
868,113 | 246. It follows that a plea must be declared inadmissible in so far as it seeks a general re-examination of the fines (see Baustahlgewebe v Commission , paragraph 129, and British Sugar v Commission , paragraph 49). | 49. This plea must therefore be declared inadmissible in so far as it seeks a general re-examination of fines ( Baustahlgewebe , paragraph 129). | 1 |
868,114 | 33. In that regard, it should be observed that a prior authorisation scheme may indeed, in some cases, be necessary and proportionate to the goals pursued if the latter cannot be achieved by less restrictive measures, in particular by an appropriate system of declarations (see, to that effect, Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, paragraphs 23 to 28; Konle , paragraph 44; and Case C‑205/99 Analir and Others [2001] ECR I‑1271, paragraph 35). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
868,115 | 53. The Court has already held, inter alia, with regard to a comparison based on the prices charged by two competing stores, that, in cases where the brand name of the products may significantly affect the buyer’s choice and the comparison concerns rival products whose respective brand names differ considerably in the extent to which they are known, omission of the better-known brand name goes against Article 3a(1)(a) of Directive 84/450 ( Pippig Augenoptik , paragraph 53). | 35 Furthermore, even assuming that absolute physical impossibility to perform the obligations at issue imposed by Directives 89/369 and 89/429 may justify failure to fulfil them, the French Government has not been able to establish such impossibility in the present case (see Commission v United Kingdom, cited above, paragraph 46). | 0 |
868,116 | 106. Cette procédure, à laquelle il ne peut être recouru que dans des circonstances limitativement mentionnées par ladite directive, revêt, par rapport aux procédures ouverte et restreinte, un caractère exceptionnel (voir par analogie, s’agissant des directives 93/36 et 93/37, arrêt du 13 janvier 2005, Commission/Espagne, C‑84/03, Rec. p. I‑139, point 47). En effet, elle reconnaît aux pouvoirs adjudicateurs une marge d’appréciation plus grande que dans le cadre de ces deux dernières procédures. | 30. However, these objections based on the increase in financial burdens and possible administrative difficulties must be rejected. In fact, grounds of that kind cannot justify the Federal Republic of Germany’s failure to comply with its obligations under the EC Treaty (Case C‑55/00 Gottardo [2002] ECR I-413, paragraph 38). | 0 |
868,117 | 19 According to settled case-law, although direct taxation falls within the competence of the Member States, the latter must none the less exercise that competence consistently with Community law and therefore avoid any overt or covert discrimination on grounds of nationality (Case C-279/93 Schumacker [1995] ECR I-225, paragraphs 21 and 26; Case C-80/94 Wielockx [1995] ECR I-2493, paragraph 16; and Case C-107/94 Asscher [1996] ECR I-3089, paragraph 36). | 28. According to the documents before the Court, the German legislation makes the grant of child-raising allowance conditional principally on the recipients being resident on national territory. Since such a rule can lead to indirect discrimination against workers who do not live in Germany, the national court wonders whether the rule can be justified and whether it satisfies the criterion of proportionality. | 0 |
868,118 | 61. However, while it is true that transposing a directive into national law does not require the provisions of the directive to be formally enacted in an express and specific legal provision, since the general legal context may be sufficient for its implementation, depending on its content (see, in particular, Case 29/84 Commission v Germany [1985] ECR 1661, paragraphs 22 and 23; Case C‑217/97 Commission v Germany [1999] ECR I‑5087, paragraphs 31 and 32; and Case C‑233/00 Commission v France [2003] ECR I‑6625, paragraph 76), it should be noted that by specifying in indent (a) of the first subparagraph of Article 4(2) of Directive 2003/4 that the protection of the confidentiality of public proceedings must be ‘provided for by law’, a condition which corresponds to the requirement laid down in Article 4(4) of the Aarhus Convention that the confidentiality of proceedings must be ‘provided for under national law’, the European Union legislature clearly wanted an express provision to exist in national law with a precisely defined scope, and not merely a general legal context. | 63. It follows that a pension paid under a scheme such as that established by the BeamtVG, which satisfies the three criteria which characterise the employment relationship, falls within the scope of Article 119 of the Treaty and, as of 1 May 1999, that of Article 141(1) and (2) EC. | 0 |
868,119 | 87. As for the complaint made by the Italian Republic against the Commission, criticising the fact that the Commission did not bring the present proceedings until years after the waste crisis had arisen and at the very time that Italy had adopted the measures enabling the crisis to be brought to an end, it should be borne in mind that the Court has consistently held that the rules laid down in Article 258 TFEU are to be applied without the Commission being required to comply with fixed time-limits (see, inter alia, Case C‑96/89 Commission v Netherlands [1991] ECR I‑2461, paragraph 15, and Case C‑523/04 Commission v Netherlands [2007] ECR I‑3267, paragraph 38). The Commission is thus entitled to decide, in its discretion, on what date it may be appropriate to bring an action and it is not for the Court to review the exercise of that discretion (Case C‑422/92 Commission v Germany [1995] ECR I‑1097, paragraph 18). | 39. Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations ( Altmark Trans and Regierungspräsidium Magdeburg , paragraph 92; Servizi Ausiliari Dottori Commercialisti , paragraph 66; and Essent Netwerk Noord and Others , paragraph 84). | 0 |
868,120 | 43. Moreover, as regards in particular exclusive purchasing agreements, the case‑law of the Court of Justice should be recalled, according to which, even if those agreements do not have as their object the restriction of competition within the meaning of Article 81 EC, it is nevertheless necessary to ascertain whether they have the effect of preventing, restricting or distorting competition. The effects of an exclusive purchasing agreement have to be assessed in the economic and legal context in which the agreement occurs and where it may combine with other agreements to have a cumulative effect on competition. It is therefore necessary to analyse the effects of such an agreement, taken together with other agreements of the same type, on the opportunities of national competitors or those from other Member States to gain access to the relevant market or to increase their market share (see Case C‑234/89 Delimitis [1991] ECR I‑935, paragraphs 13 to 15, and Case C‑214/99 Neste [2000] ECR I‑11121, paragraph 25). | Furthermore, to the extent that, by this ground of challenge, the appellant is seeking to obtain a new assessment of the facts, that ground of challenge is inadmissible in accordance with the case-law set out in paragraph 35 of this judgment, since Continental Reifen Deutschland has not invoked any distortion of the facts or evidence submitted to the General Court (see, by analogy, judgment of 24 March 2011, Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraph 89). | 0 |
868,121 | 45. By contrast, if the referring court were to find that either the threshold has not been reached or that the value of the medical services exceeds the value of the transport services, only the general principles of transparency and equal treatment flowing from Articles 49 TFEU and 56 TFEU would be applicable in addition to Articles 23 and 35(4) of Directive 2004/18 (see, to that effect, judgments in Commission v Ireland , EU:C:2007:676, paragraph 26 and the case-law cited, and Strong Segurança , EU:C:2011:161, paragraph 35). | 67
According to recital 12 of that decision where deriving a product benchmark has not been feasible, but greenhouse gases eligible for the free allocation of emission allowances occur, those allowances should be allocated on the basis of generic fallback approaches. To that end, a hierarchy of three fallback approaches has been developed in order to maximise greenhouse gas emission reductions and energy savings for at least parts of the production processes concerned. | 0 |
868,122 | 16. It is apparent from the documents relating to the case in the main proceedings that the public transport service in the Municipality of Bari is remunerated, at least in part, through the purchase of tickets by those using it. That method of remuneration characterises a public service concession (Case C‑458/03 Parking Brixen [2005] ECR I-0000, paragraph 40). | 46. The elements whose omission would render the decision unlawful are not, by definition, set out therein and are accordingly separable from its provisions. The annulment of the third paragraph of the declaration for failure to refer to certain articles of the Convention would in no way affect the legal scope of the provisions on which the Council has already taken a view. Such an annulment therefore would not alter the substance of the contested decision. Accordingly, those elements may be severed from the remainder of the contested decision. | 0 |
868,123 | 36. An approach consisting in taking account of the intention of each visitor taken individually as to the use of the facilities which are made available would be contrary to the objectives of the VAT system of ensuring legal certainty and a correct and straightforward application of the exemptions provided for in Article 132 of the VAT Directive. In that regard, it should be pointed out that, to facilitate the measures necessary for the application of VAT, regard must be had, save in exceptional cases, to the objective character of the transaction in question (see, to that effect, Case C-4/94 BLP Group [1995] ECR I-983, paragraph 24; Case C-108/99 Cantor Fitzgerald International [2001] ECR I-7257, paragraph 33; and Case C-409/04 Teleos and Others [2007] ECR I-7797, paragraph 39). | 31. As regards the use of signs identical with trade marks as keywords for a referencing service, the Court held, at paragraph 81 of Google France and Google , that the relevant functions to be examined are the function of indicating origin and the function of advertising. | 0 |
868,124 | 49. It is apparent from the second and third recitals of Directive 85/303 that Directive 69/335 has the objective of limiting or abolishing capital duty. In the light of that objective, it is clear from the third recital that it was only by reason of the budgetary difficulties they would be faced with if capital duty were abolished that Member States which had not waived the levying of that duty could maintain such a duty (see, to that effect, Logstor ROR Polska EU:C:2011:401, paragraph 36). | 26. In order to determine whether a dominant undertaking has abused its dominant position by its pricing practices, it is necessary to consider all the circumstances and to examine whether those practices tend to remove or restrict the buyer’s freedom as regards choice of sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, or to strengthen the dominant position by distorting competition (see, to that effect, Deutsche Telekom v Commission , paragraph 175 and case-law cited). | 0 |
868,125 | 76 Consequently, the third part of the plea must be rejected.
The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings
10 In particular, the Court of First Instance held as follows:
82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations.
83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions.
84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected.
85 Therefore, the fourth part of the plea cannot be accepted.
11 The Court of First Instance therefore rejected the first plea in law.
The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration
12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings.
13 The Court of First Instance held, in particular, as follows:
92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of.
93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22).
94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons.
95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant.
...
97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book).
98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing).
99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard.
...
101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing.
102 It follows that the plea must be rejected.
The third plea in law: infringement of Article 11 of the Staff Regulations
14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission.
15 The Court of First Instance held as follows:
108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case.
109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR").
110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book.
111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs.
...
113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations.
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.
1 | 46. Whether a person has been ‘finally’ judged for the purposes of Article 3(2) of the Framework Decision is determined by the law of the Member State in which judgment was delivered. | 0 |
868,126 | 74. Similarly, having observed that it follows from Articles 2 and 22 of the Sixth VAT Directive and from Article 10 EC that every Member State is under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory, and stated that, under the common system of VAT, Member States are required to ensure compliance with the obligations to which taxable persons are subject and that they enjoy in that respect a certain measure of latitude, inter alia, as to how they use the means at their disposal, the Court of Justice has added that that latitude is nevertheless limited, in particular, by the obligation to ensure effective collection of the Community’s own resources (Case C‑132/06 Commission v Italy [2008] ECR I‑5457, paragraphs 37 to 39). | 29. Furthermore, the concepts of ‘medical care’ in Article 13A(1)(b) of the Sixth Directive and of ‘the provision of medical care’ in Article 13A(1)(c) of that directive are both intended to cover services that have as their aim the diagnosis, treatment and, in so far as possible, cure of diseases or health disorders (see Dornier , paragraph 48 and the case-law cited; Case C‑106/05 L.u.P [2006] ECR I‑5123, paragraph 27; and Case C‑262/08 CopyGene [2010] ECR I‑5053, paragraph 28). | 0 |
868,127 | 51. Les dispositions du traité FUE ainsi que de l’accord EEE relatives à la libre prestation des services s’opposant à cette réglementation, il n’est pas nécessaire d’examiner séparément ladite réglementation à la lumière des articles 63 TUE et 40 de l’accord EEE, concernant la libre circulation des capitaux (voir, en ce sens, arrêts Commission/Belgique, C‑383/10, EU:C:2013:364, point 74, et Commission/Belgique, C‑296/12, EU:C:2014:24, point 51). | 17. The contested decision states that the assessment of the gravity of [Tomra’s] infringement must take account of the fact that they had deliberately employed the practices in question in the context of their exclusionary strategy and also of the geographic scope of the infringement, namely the fact that it encompassed five EEA States: Germany, the Netherlands, Austria, Sweden and Norway. Conversely, account must also be taken, in the Commission’s view, of the fact that the infringement did not cover the whole of the reference period on all the national markets under consideration and that within each of those markets its intensity could well have varied over time. | 0 |
868,128 | 35. The Court has previously stated that an economic entity is able, in certain sectors, to function without any significant tangible or intangible assets, and therefore the maintenance of the identity of such an entity following the transaction affecting it cannot, logically, depend on the transfer of such assets (see Süzen , paragraph 18; Hernández Vidal and Others , paragraph 31; and UGT-FSP , paragraph 28). | 107. Il résulte toutefois des considérations exposées aux points 81 à 95 du présent arrêt que le quatrième moyen doit être rejeté. | 0 |
868,129 | 11 As the Advocate General has pointed out in point 6 of his Opinion, it is irrelevant that no high-speed train is currently operational in Ireland. The fact that an activity referred to in a directive does not exist in a particular Member State cannot release that State from its obligation to adopt laws or regulations in order to ensure that all the provisions of the directive are properly transposed (see, to that effect, Case C-214/98 Commission v Greece [2000] ECR I-9601, paragraph 22). | 26 It follows from all the foregoing considerations that the Belgian Government has shown that its system of unemployment and invalidity benefits corresponds to a legitimate objective of social policy, involving increases suitable and requisite for attaining that aim; it is therefore justified by reasons unrelated to discrimination on grounds of sex. | 0 |
868,130 | 23. Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36) concerns only lawyers who are fully qualified as such in their Member States of origin (see Morgenbesser , paragraph 45). In addition, it is apparent from the documents before the Court that the activities undertaken by legal trainees are regarded as forming the practical part of the training required to enter the legal professions in Germany. It follows that such a legal traineeship cannot be classed as a ‘regulated profession’, within the meaning of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16), as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 (OJ 2001 L 206, p. 1), separable from the German legal professions themselves, such as the profession of lawyer (see, by analogy, Morgenbesser , paragraphs 46 to 55). | 67. As regards the division of jurisdiction between the European Union judicature and national courts, it is in principle for the national court to determine whether the factual conditions triggering the application of a European Union rule are fulfilled in the case pending before it, while the Court, when giving a preliminary ruling, may, where appropriate, provide clarification to guide the national court in its interpretation (see, to that effect, Case C‑424/97 Haim [2000] ECR I‑5123, paragraph 58, and Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze [2009] ECR I-4585, paragraph 23). | 0 |
868,131 | 40. In that respect, it should be noted that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties order the reopening of the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Joined Cases C-270/97 and C-271/97 Deutsche Post [2000] ECR I-929, paragraph 30, and Case C-299/99 Philips [2002] ECR I-5475, paragraph 20). | 65. That intention is implicit in certain methods of advertising. | 0 |
868,132 | 22. In light of those principles, such exemptions must be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, to that effect, SDC , paragraph 20, Cimber Air , paragraph 25, and Case C-445/05 Haderer [2007] ECR I-0000, paragraph 18). That requirement of strict interpretation does not, however, mean that the terms used to specify the exemptions should be construed in such a way as to deprive those exemptions of their intended effect (Case C-284/03 Temco Europe [2004] ECR I-11237, paragraph 17, and Haderer , paragraph 18). | 57 The national court must undertake an overall assessment of the data relating to ties having regard to all the evidence submitted to it. | 0 |
868,133 | 34. As the Court has previously held, those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the general principles of that law, in particular the principle of proportionality ( Baumbast and R , paragraph 91). | 43
Lastly, Article 8(3) of Decision 2011/695 provides that those provisions are to apply mutatis mutandis to the disclosure of information by publication in the Official Journal of the European Union. | 0 |
868,134 | 51 As regards the limitation of the period of validity of the residence permit held by the Turkish worker's family member in the host Member State, it must be observed that, whilst the Member States retain the power to lay down the conditions under which that family member may enter their territory and reside there until he or she becomes entitled to respond to any offer of employment (see paragraphs 32 and 33 of this judgment), the fact nevertheless remains that the rights conferred by the first paragraph of Article 7 on family members of a Turkish worker are granted by that provision to the persons concerned regardless of the issue by the authorities of the host Member State of a specific administrative document, such as a residence permit (see, by analogy with Article 6 of Decision No 1/80, Bozkurt, cited above, paragraphs 29 and 30). | 49. It follows that, under national law, mothers who are civil servants are always entitled to parental leave, whereas fathers who are civil servant are entitled to it only if the mother of their child works or exercises a profession. Thus, the mere fact of being a parent is not sufficient for male civil servants to gain entitlement to that leave, whereas it is for women with an identical status (see, by analogy, judgment in Roca Álvarez , C‑104/09, EU:C:2010:561, paragraph 23). | 0 |
868,135 | 19. Consequently, Article 40 of the EEA Agreement and Annex XII thereto are applicable to a dispute such as that before the referring court, which relates to a transaction between nationals of States which are party to that Agreement. According to settled case-law, the Court may give an interpretation of those provisions where a reference is made by a court of a Member State of the European Union with regard to the scope within that Member State of an agreement which forms an integral part of the EU legal system (see Case C-321/97 Andersson and Wåkerås-Andersson [1999] ECR I-3551, paragraphs 26 to 31; Case C-300/01 Salzmann [2003] ECR I-4899, paragraph 65; and Case C‑452/01 Ospelt and Schlössle Weissenberg [2003] ECR I‑9743, paragraph 27). | 18 THUS IT IS IMPLICIT IN THE SYSTEM OF ARTICLES 33 AND 35 THAT THE EXERCISE OF THE RIGHT TO RAISE THE MATTER WITH THE COMMISSION MAY NOT BE DELAYED INDEFINITELY . | 0 |
868,136 | 16. Article 226 EC is not therefore intended to protect that institution’s own rights. It is for the Commission alone to decide whether or not it is appropriate to bring proceedings against a Member State for a declaration that it has failed to fulfil its obligations, and, depending on the circumstances, because of what conduct or omission those proceedings should be brought (see, to that effect, Case C-431/92 Commission v Germany [1995] ECR I‑2189, paragraph 22; Case C-476/98 Commission v Germany [2002] ECR I‑9855, paragraph 38, and Commission v Germany , cited in paragraph 14 above, paragraph 30).
The action’s want of any purpose | 53. Where it finally becomes apparent that the import duties paid by the declarant exceed those that were legally owed at the time of their payment, the measure necessary to regularise the situation can consist only in reimbursement of the overpaid amount. | 0 |
868,137 | 57. Moreover, as regards the restitution of national taxes unduly levied, the Court has stated that, where the rules for restitution are amended by national law with retroactive effect, the principle of effectiveness requires new legislation to include transitional arrangements allowing an adequate period after the enactment of the legislation for lodging claims for repayment which persons were entitled to submit under the original legislation (see, to that effect, Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 38, and Case C‑255/00 Grundig Italiana [2002] ECR I-8003, paragraph 37). | 71. By contrast, it is for the Court to review whether the Council and the Commission properly carried out their task of verifying compliance with the conditions set out in Regulation No 2081/92. | 0 |
868,138 | 29 The Court has often stated that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position, and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, in particular, Hughes, paragraph 15, Case C-356/89 Newton v Chief Adjudication Officer [1991] ECR I-3017, Joined Cases 379 to 381/85 and 93/86 Giletti and Others [1987] ECR 955, paragraph 11, and Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn, Kalmthout [1985] ECR 973, paragraphs 12 to 14). | 40. Thus, the pre-litigation procedure pursues the following three objectives: to allow the Member State to put an end to any infringement, to enable it to exercise its rights of defence and to define the subject-matter of the dispute with a view to bringing an action before the Court (judgments in Commission v Ireland , C‑362/01, EU:C:2002:739, paragraph 18; Commission v Germany , C‑135/01, EU:C:2003:171, paragraph 21; and Commission v Netherlands , C‑79/09, EU:C:2010:171, paragraph 22). | 0 |
868,139 | 29 In any event, as was held in Case C-106/91 Ramrath v Ministre de la Justice [1992] ECR I-3351, paragraph 17, a comparison of Articles 48 and 52 of the Treaty shows that they are based on the same principles both as regards entry into and residence in the territory of the Member States by persons covered by Community law and as regards the prohibition of all discrimination against them on grounds of nationality. The same applies to the pursuit of an economic activity in the territory of the Member States by persons covered by Community law. | 29. It is precisely for that reason that Article 3a(1)(b) of the directive provides, as a condition for permitting comparative advertising, that the goods or services compared must meet the same needs or be intended for the same purpose. | 0 |
868,140 | 45. In that regard, the Court has already held that the protection of fundamental rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty, such as the free movement of goods (see Case C‑112/00 Schmidberger [2003] ECR I‑5659, paragraph 74) or freedom to provide services (see Case C‑36/02 Omega [2004] ECR I‑9609, paragraph 35). | 56. In those circumstances, and in the light of the reply to the first question, it is not necessary to reply to the other questions referred.
Costs | 0 |
868,141 | 67. Where the right of collective bargaining proclaimed in Article 28 of the Charter is covered by provisions of European Union law, it must, within the scope of that law, be exercised in compliance with that law (see, to that effect, Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union (‘Viking Line’) [2007] ECR I‑10779, paragraph 44, and Case C‑341/05 Laval un Partneri [2007] ECR I‑11767, paragraph 91). | 29. Whilst ‘medical care’ and ‘the provision of medical care’ must have a therapeutic aim, it does not necessarily follow that the therapeutic purpose of a service must be confined within a particularly narrow compass (see Case C‑76/99 Commission v France [2001] ECR I‑249, paragraph 23, and Case C‑212/01 Unterpertinger [2003] ECR I‑13859, paragraph 40). | 0 |
868,142 | 41. In that connection, it should be borne in mind that the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the competent courts are satisfied (see, inter alia, Joined Cases C-338/11 to C-347/11 Santander Asset Management SGIIC and Others [2012] ECR, paragraph 58 and the case-law cited). | 7 A TELEX MESSAGE OF 28 MAY 1980 , IN WHICH THAT LETTER WAS REFERRED TO AND A REMINDER OF 28 JULY 1980 MET WITH NO RESPONSE ON THE PART OF THE ITALIAN GOVERNMENT .
| 0 |
868,143 | 46. As the General Court pointed out in paragraphs 45 and 84 of the order under appeal, without being contradicted by the Commission in that regard, the non-contractual liability of the Community and the exercise of the right to compensation for damage suffered under the second paragraph of Article 288 EC depend on the satisfaction of a number of conditions relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see, inter alia, Birra Wührer and Others v Council and Commission , paragraph 9; Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission [2008] ECR I-6513, paragraph 106; and Case C-419/08 P Trubowest Handel and Makarov v Council and Commission [2010] ECR I-2259, paragraph 40). | 52. It follows that, in order to use the option provided for by that provision, the Member States are required to make a choice to rely on it. | 0 |
868,144 | 46. The Court has already held, in its judgment in Schwarz (C‑291/12, EU:C:2013:670), that the use and storage of biometric data for the purposes specified in Article 4(3) of that regulation are compatible with the requirements of Articles 7 and 8 of the Charter. | 82. In the light of the foregoing, the reply to the second question must be that Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court.
Case C-482/01
First question
– Scope of the question | 0 |
868,145 | 20
In that regard, it should be recalled that questions concerning EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is obvious that the interpretation of EU law that is sought is unrelated 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 (judgment of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 30 and the case-law cited). | 12 Article 26 of the Sixth Directive defines the special system of VAT applicable to travel agents and tour operators. | 0 |
868,146 | 60. Therefore, just as it is not for the Commission to rule on the allocation of powers by the institutional rules proper to each Member State, or on the obligations which may be imposed on the Federal Republic of Germany and Länder authorities respectively (see Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraph 13), that allocation cannot constitute a sufficient reason to restructure the Member States’ obligations towards the Community in connection with the apportionment of the burden of proof of an infringement of the rules on the common organisation of the agricultural markets (also see, on this point, Case C-52/91 Commission v Netherlands [1993] ECR I-3069, paragraph 36, Case C-140/00 Commission v United Kingdom [2002] ECR I-10379, paragraph 60, and Case C-89/03 Commission v Luxembourg [2003] ECR I-0000, paragraph 5). | 39. For the sake of completeness, it must be noted that, as recitals 3, 21 and 24 in the preamble to Regulation No 1782/2003 make clear, environmental protection forms part of the objectives of the single payment scheme. The Court has also held that environmental protection, one of the essential objectives of the European Union, must be regarded as forming part of the common agricultural policy (Case C-428/07 Horvath [2009] ECR I-6355, paragraph 29). Moreover, Article 2 point (1) of Regulation No 796/2004 expressly provides that arable land, and consequently agricultural areas pursuant to Article 2(a) of Regulation No 795/2004, is land maintained in good agricultural and environmental condition within the meaning of Article 5 of Regulation No 1782/2003. | 0 |
868,147 | 32
It should be noted that the concept of ‘seller’, so defined, is objective in nature (see, by analogy, the judgment of 3 September 2015, Costea, C‑110/14, EU:C:2015:538, paragraph 21, and the order of 19 November 2015, C 74/15, Tarcâu, EU:C:2015:772, paragraph 27) and is based on elements such as the existence of a ‘contract’, the sale of ‘consumer goods’ and the existence of a ‘trade, business or profession’. | 32. Since the dimensions of the tax entity can therefore be altered, acceptance of the possibility of including a non-resident subsidiary in such an entity would have the consequence of allowing the parent company to choose freely the Member State in which the losses of that subsidiary are to be taken into account (see, to that effect, Oy AA, paragraph 56, and Lidl Belgium , paragraph 34). | 0 |
868,148 | 52
The Court has stated that the national court must carry out a global assessment of the circumstances in which restrictive legislation was adopted and implemented (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 52). | 113. Deux conditions doivent être remplies cumulativement pour que la règle de non-assujettissement figurant à l’article 4, paragraphe 5, premier alinéa, de la sixième directive joue, à savoir la qualité d’organisme public et l’exercice d’activités accomplies en tant qu’autorité publique (arrêts du 11 juillet 1985, Commission/Allemagne, 107/84, Rec. p. 2655, point 11; Commission/Pays-Bas, précité, point 21, et Ayuntamiento de Sevilla, précité, point 18). | 0 |
868,149 | 45 The requirement of judicial review reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Case 224/84 Johnston [1986] ECR 1651, paragraph 18; Case C-97/91 Oleificio Borelli v Commission [1992] ECR I-6313, paragraph 14, Case C-1/99 Kofisa Italia [2001] ECR I-207, paragraph 46, and Case C-226/99 Siples [2001] ECR I-277, paragraph 17). | 48. However, the latter analysis is not valid as regards consumption residues which cannot be regarded as ‘by-products’ of a manufacturing or extraction process which are capable of being reused as an integral part of the production process. | 0 |
868,150 | 62. Given that such notices are capable of enabling the persons concerned to identify the legal remedies available to them in order to challenge their designation in the lists concerned and the date when the period for bringing proceedings expires (Case C‑417/11 P Council v Bamba [2012] ECR I‑0000, paragraph 81), it is important that the appellants should not be able to defer the starting point of the period for bringing proceedings by relying on the fact that there was no direct communication or that they actually became aware of the contested measures at a later date. If such a possibility were, in the absence of force majeure , open to the appellants, it would jeopardise the very objective of a time-limit for bringing proceedings, which is to protect legal certainty by ensuring that European Union measures which produce legal effects may not indefinitely be called into question (see, inter alia, Case C‑178/95 Wiljo [1997] ECR I‑585, paragraph 19; Case C‑241/01 National Farmers’ Union [2002] ECR I‑9079, paragraph 34, and order of 15 November 2012 in Case C‑102/12 P Städter v ECB , paragraph 12). | 42. That argument cannot be accepted. | 0 |
868,151 | 19. In that regard, it should be recalled that where Member States decide to introduce the exception, provided for in Article 5(2)(b) of Directive 2001/29, to the right of reproduction for copying for private use (‘the private copying exception’) into their national law, they are required, in particular, to provide, pursuant to that provision, for the payment of fair compensation to holders of the exclusive right of reproduction (judgments in Padawan , C‑467/08, EU:C:2010:620, paragraph 30, and Amazon.com International Sales and Others , C‑521/11, EU:C:2013:515, paragraph 19). | 43. En outre, et contrairement à ce qu’a fait valoir M. Guigard dans sa réponse au pourvoi incident de la Commission, la simple invocation de règles juridiques qui ne découlent pas dudit contrat de travail, mais qui s’imposent aux parties, ne saurait avoir pour conséquence de modifier la nature contractuelle du litige et de soustraire, par conséquent, ce dernier à la juridiction compétente. S’il en était autrement, la nature du litige et, par conséquent, la juridiction compétente seraient susceptibles de changer au gré des normes invoquées par les parties, ce qui irait à l’encontre des règles de compétence matérielle des différentes juridictions. | 0 |
868,152 | 57. A public service concession, such as that in question in the main proceedings, is outside the scope of the directives on the different categories of public contracts (see, particularly, Case C‑231/03 Coname [2005] ECR I-7287, paragraph 16). | 28. Although it is clear from those factors that a service provider such as Winters operates in the course of trade when it fills such cans under an order from another person, it does not follow, however, therefrom that the service provider itself ‘uses’ those signs within the meaning of Article 5 of Directive 89/104 (see, by analogy, Google France and Google , paragraph 55). | 0 |
868,153 | 47
Furthermore, as regards whether the works were communicated to a ‘new’ public, within the meaning of the case-law cited in paragraph 33 above, it should be noted that the Court, in its judgment of 13 February 2014, Svensson and Others (C‑466/12, EU:C:2014:76, paragraphs 24 and 31) and in its order of 21 October 2014, BestWater International (C‑348/13, EU:C:2014:2315), held that such a public is a public which was not taken into account by the copyright holders when they authorised the initial communication. In its judgment of 8 September 2016, GS Media (C‑160/15, EU:C:2016:644, paragraph 43), the Court observed that those decisions confirmed the importance of the consent of the holder of the copyright in protected works that have been made freely available on a website, having regard to Article 3(1) of Directive 2001/29 which specifically provides that every act of communication of a work to the public must be authorised by the copyright holder. | 35. In this connection, it is true that in paragraph 75 of Müller-Fauré and van Riet , after emphasising how difficult it is to distinguish ‘hospital services’ from ‘non‑hospital services’, the Court pointed out that services provided in a hospital environment but that could also be provided by a practitioner in his surgery or in a health centre could, for that reason, be placed on the same footing as non-hospital services. | 0 |
868,154 | 53
The Court has, moreover, held that Directive 2004/38 is only applicable to the conditions governing whether a Union citizen can enter and stay in Member States other than that of which he is a national. Directive 2004/38 does not therefore confer a derived right of residence on third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a national (see, to that effect, judgment of 12 March 2014, S. and G., C‑457/12, EU:C:2014:136, paragraph 34). | 6. À cet égard, il convient de relever que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 30 mai 2002, Commission/Italie, C-323/01, Rec. p. I-4711, point 8, et du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I-9535, point 9). | 0 |
868,155 | 81
Thus, it is following a schematic interpretation of the relevant EU rules that the Court of Justice interpreted those rules as meaning that, as from 2000, the Commission is required to comply with a legal time limit when adopting a decision on financial corrections (see judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 56 to 82, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 56 to 82). | 22. As far as the main proceedings are concerned, those limitations and conditions derive in particular from Article 27(1) of Directive 2004/38, which provides that Member States may restrict the freedom of movement of Union citizens and their family members on grounds inter alia of public policy or public security. | 0 |
868,156 | 33. Par ailleurs, la Cour a itérativement jugé qu’un État membre ne saurait justifier l’inexécution des obligations qui lui incombent en vertu du traité FUE par la circonstance que d’autres États membres auraient manqué et manqueraient également à leurs obligations (voir, notamment, arrêts du 9 juillet 1991, Commission/Royaume-Uni, C‑146/89, Rec. p. I‑3533, point 47, et du 15 juillet 2004, Commission/Allemagne, C‑139/03, point 8). | 33. It should be noted that the Finnish tax legislation is designed to prevent double taxation of company profits by granting to a shareholder who receives dividends a tax advantage linked to the taking into account of the corporation tax due from the company distributing the dividends. | 0 |
868,157 | 48 In those judgments, the Court, having regard to the circumstances of the cases, held that Community law recognizes the existence of a right to reparation when three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage suffered by the injured parties (Brasserie du Pêcheur and Factortame, cited above, paragraph 51, and Dillenkofer and Others, cited above, paragraphs 21 and 23). The Court has in particular held that those conditions apply where a Member State incorrectly transposes a Community directive into national law (Case C-392/93 British Telecommunications [1996] ECR I-0000, paragraph 40). | 11 THOSE CONSIDERATIONS ARE ALSO APPLICABLE IN THIS CASE, SINCE NOTHING IN THE DOCUMENTS BEFORE THE COURT INDICATES ANY FEATURE SPECIFIC TO THE BELGIAN MARKET WHICH MIGHT JUSTIFY A DIFFERENT APPROACH . CONSEQUENTLY, ONLY COMMONLY CONSUMED WINES, WHICH IN GENERAL ARE CHEAP WINES, HAVE ENOUGH CHARACTERISTICS IN COMMON WITH BEER TO CONSTITUTE AN ALTERNATIVE CHOICE FOR CONSUMERS AND MAY THEREFORE BE REGARDED AS BEING IN COMPETITION WITH BEER FOR THE PURPOSES OF THE SECOND PARAGRAPH OF ARTICLE 95 OF THE TREATY .
THE PROTECTIVE NATURE OF THE TAX SYSTEM | 0 |
868,158 | 27. It should be noted as a preliminary point that the need for uniform application of Community law and the principle of equality require that where provisions of Community law make no express reference to the law of the Member States for the purpose of determining their meaning and scope, as is the case with Article 2 of Directive 2001/29, they must normally be given an autonomous and uniform interpretation throughout the Community (see, in particular, Case C‑245/00 SENA [2003] ECR I‑1251, paragraph 23, and Case C-306/05 SGAE [2006] ECR I‑11519, paragraph 31). | 81. Accordingly, smuggled goods which were imported unlawfully in that way are to be regarded as having been released for consumption, with the result that the fact that they were subsequently entered for a customs warehousing procedure in accordance with Article 867a of the Implementing Regulation, following their seizure and confiscation, has no effect on the chargeability of the excise duty. | 0 |
868,159 | 24
According to the settled case-law of the Court, the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 19). | 12 As far as custodial staff in general are concerned, the Commission admits that the specific nature of the post of warder and the conditions under which warders carry out their activities justify reserving such posts primarily for men in male prisons and primarily for women in female prisons . To that extent, the different access to the custodial staff corps arising from a system of separate recruitment for men and women does not go beyond the limits laid down in Article 2 ( 2 ) of the directive . | 0 |
868,160 | 53. It would not be justified at all to make goods, substances or products which the holder intends to exploit or market on economically advantageous terms in a subsequent recovery process subject to the provisions of Directive 2006/12, which seek to ensure that recovery and disposal operations will be carried out without endangering human health and without using processes or methods which could harm the environment. However, having regard to the requirement to interpret the concept of ‘waste’ widely, the reasoning should be confined to situations in which the reuse of the goods or substance in question is not a mere possibility but a certainty, which it is for the referring court to ascertain, without the necessity of using any of the waste recovery processes referred to in Annex II B to Directive 2006/12 prior to reuse (see, by analogy, Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus , paragraph 36, and Case C‑114/01 AvestaPolarit Chrome [2003] ECR I‑8725, paragraph 36). | 33 IT SHOULD BE NOTED THAT THE PRINCIPLE OF STRICT LIABILITY , AS DESCRIBED BY THE APPLICANTS , IMPLIES THAT AN INDIVIDUAL HAS TO BEAR , IN THE PUBLIC INTEREST , A FINANCIAL BURDEN WHICH WOULD NOT NORMALLY FALL UPON HIM . IN THIS CASE , THE DAMAGE ALLEGEDLY SUSTAINED BY THE APPLICANTS IS MERELY THE RESULT OF THE ORDINARY RISK TAKEN BY ANY TENDERER TAKING PART IN A TENDERING PROCEDURE . ACCORDINGLY , WITHOUT THERE BEING ANY NEED TO CONSIDER WHETHER SUCH A PRINCIPLE OF STRICT LIABILITY EXISTS IN THE COMMUNITY ' S LEGAL SYSTEM , THIS SUBMISSION MUST BE REJECTED .
| 0 |
868,161 | 45. In the judgment in Schaap (176/78, EU:C:1979:112, paragraphs 10 and 11), the Court held that although Article 46(2) of Regulation No 574/72 appears under the above-mentioned heading, it must be applied to each case falling within Article 46(3) of Regulation No 1408/71 so that for the purposes of the application of that paragraph, the competent institution may not take account of the amount of benefits corresponding to periods [of insurance] completed under voluntary insurance or optional continued insurance. | 67 The seventh plea must therefore be dismissed. | 0 |
868,162 | 33 It is clear from settled case-law (see, in particular, Case C-150/94 United Kingdom v Council [1998] ECR I-7235, paragraph 36) that the fourth paragraph of Article 37 of the EC Statute of the Court of Justice does not prevent an intervener from using arguments different from those used by the party it is supporting, provided the intervener seeks to support that party's submissions. | 47. For the non-contractual liability of the Community to arise, a number of conditions must be met, including, where the unlawfulness of a legal measure is at issue, the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals. As regards that condition, the decisive criterion for establishing that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion. Where that institution has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach ( Bergaderm and Goupil v Commission , paragraphs 43 and 44) | 0 |
868,163 | 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. | 126. Accordingly, only inasmuch as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, due to the inappropriateness of the amount of a fine. | 0 |
868,164 | 27 However, in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, and Case C-128/93 Fisscher [1994] ECR I-4583, paragraphs 17 to 24, the Court took the view that the limitation of the effects in time of the Barber judgment concerned only those kinds of discrimination which, owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions, employers and pension schemes could reasonably have considered to be permissible (Case C-435/93 Dietz [1996] ECR I-5223, paragraph 19). | 11 THE ORDERS CONCERNED IN THE PRESENT CASE ARE NOT MEASURES WHICH ARE APPLICABLE TO DOMESTIC PRODUCTS AND TO IMPORTED PRODUCTS WITHOUT DISTINCTION BUT RATHER A SET OF RULES WHICH APPLY ONLY TO IMPORTED PRODUCTS AND ARE THEREFORE DISCRIMINATORY IN NATURE , WITH THE RESULT THAT THE MEASURES IN ISSUE ARE NOT COVERED BY THE DECISIONS CITED ABOVE WHICH RELATE EXCLUSIVELY TO PROVISIONS THAT REGULATE IN A UNIFORM MANNER THE MARKETING OF DOMESTIC PRODUCTS AND IMPORTED PRODUCTS .
| 0 |
868,165 | 55. According to the Court’s settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see, inter alia, to that effect, judgments in Commission v Koninklijke FrieslandCampina , C‑519/07 P, EU:C:2009:556, paragraph 63; ACEA v Commission , C‑319/09 P, EU:C:2011:857, paragraph 67; Stichting Woonpunt and Others v Commission , C‑132/12 P, EU:C:2014:100, paragraph 67; and Stichting Woonlinie and Others v Commission , C‑133/12 P, EU:C:2014:105, paragraph 54). | 75. Thus, a Member State might see a risk that some parts of its territory will be left with too few pharmacies and that, as a consequence, the provision of medicinal products might well not be reliable and of good quality. | 0 |
868,166 | 26. It should also be recalled that according to the Court’s case-law the rules of Article 226 EC must be applied and the Commission is not obliged to act within a specific period, save where the excessive duration of the pre-litigation procedure in that provision is capable of making it more difficult for the Member State concerned to refute the Commission’s arguments and of thus infringing the rights of the defence. It is for the Member State concerned to provide evidence that it has been so affected (Case C-96/89 Commission v Netherlands [1991] ECR I-2461, paragraphs 15 and 16; Case C-207/97 Commission v Belgium [1999] ECR I-275, paragraph 25, and Commission v Austria , cited above, paragraph 36). | 19. Arnold André is a company established in Germany which markets cigars, pipe tobacco and traditional Swedish tobacco for oral use called ‘snus’. Snus is finely ground or cut tobacco sold loose or in small sachet portions and intended to be consumed by placing between the gum and the lip. | 0 |
868,167 | 12. The legitimacy of pursuing such an objective has also been recognised by the Court, which has stated that the marketing on an exclusive basis of events of high interest to the public is liable to restrict considerably the access of the general public to information relating to those events. However, in a democratic and pluralistic society, the right to receive information is of particular importance, and its importance is all the more evident in the case of such events (see Case C‑283/11 Sky Österreich [2013] ECR I‑0000, paragraphs 51 and 52). | 94. Were the obligation of the Member State concerned to make reparation to be confined to loss or damage sustained after delivery of a judgment of the Court finding the infringement in question, that would amount to calling in question the right to reparation conferred by the Community legal order. | 0 |
868,168 | 99. For a tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid under the relevant national rules, in the sense that the revenue from the charge is necessarily allocated for the financing of the aid and has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of that aid with the common market (see, inter alia, Joined Cases C‑393/04 and C‑41/05 Air Liquide Industries Belgium [2006] ECR I‑5293, paragraph 46 and the case‑law cited). | 37. Moreover, it is apparent from Article 3(4) of Directive 2003/30 that the Member States also enjoy a wide discretion with regard to the products which they wish to promote in order to attain the objectives laid down in the directive, since they may choose to give priority to the promotion of certain types of fuels by taking account of their overall cost-effective climate and environmental balance, while also taking into account competitiveness and security of supply. | 0 |
868,169 | 50. As the Court has held, under the system provided for in Articles 6 and 7 of Directive 2004/35, it is as a rule for the operator who caused the damage to put forward proposals for the remedial measures which it considers appropriate to the situation (see judgment in ERG and Others , EU:C:2010:127, paragraph 46). By the same token, it is that operator on whom the competent authority may impose the adoption of the necessary measures. | 46. Under the system set up by Articles 6 and 7 of Directive 2004/35, as a rule, it is for the operator who caused the damage to put forward proposals for the remedial measures which it considers appropriate to the situation. In view of the knowledge which the operator is deemed to have as regards the nature of the damage to the environment caused by his activities, such a system may enable appropriate environmental remedial measures to be identified and implemented swiftly. | 1 |
868,170 | 23 The Court has consistently held (see, in particular, the abovementioned judgments in Rousseau Wilmot, paragraph 15; Bergandi, paragraph 15; Wisselink and Others, paragraph 18; and Giant, paragraph 12) that the principle of the common system of VAT consists, by virtue of Article 2 of the First Directive, in the application to goods and services up to the retail stage of a general tax on consumption which is exactly proportional to the price of the goods and services, irrespective of the number of transactions which take place in the production and distribution process before the stage at which the tax is charged. However, VAT is chargeable on each transaction only after deduction of the amount of VAT borne directly by the costs of the various price components. The procedure for deduction is so arranged by Article 17(2) of the Sixth Directive that taxable persons are authorised to deduct from the VAT for which they are liable the VAT which the goods or services have already borne. | 31. The question whether the agreements at issue should or should not be classed as service concessions must therefore be considered exclusively in the light of Community law. | 0 |
868,171 | 41. Freedom of establishment, which Article 43 EC grants to Community nationals and which includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 48 EC, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community, the right to exercise their activity in the Member State concerned through a subsidiary, a branch or an agency (see, in particular, Case C-307/97 Saint Gobain ZN [1999] ECR I-6161, paragraph 35; Marks & Spencer , paragraph 30; and Case C-471/04 Keller Holding [2006] ECR I-0000, paragraph 29). | 44. However, by using the concept of ‘disability’ in Article 1 of that directive, the legislature deliberately chose a term which differs from ‘sickness’. The two concepts cannot therefore simply be treated as being the same. | 0 |
868,172 | 33. Il y a lieu de rappeler que, selon une jurisprudence constante, l’indemnité de dépaysement prévue à l’article 69 du statut et dont les modalités d’octroi sont précisées à l’article 4, paragraphe 1, de l’annexe VII du même statut, disposition dans laquelle figure la notion de «services effectués pour un autre État», a pour objet de compenser les charges et désavantages particuliers résultant de la prise de fonctions auprès des Communautés pour les fonctionnaires qui sont, de ce fait, obligés de transférer leur résidence de l’État de leur domicile à l’État d’affectation et de s’intégrer dans un nouveau milieu. La notion de dépaysement dépend également de la situation subjective du fonctionnaire, à savoir de son degré d’intégration dans le nouveau milieu résultant, par exemple, de sa résidence habituelle ou de l’exercice d’une activité professionnelle principale (voir arrêts du 15 septembre 1994, Magdalena Fernández/Commission, C‑452/93 P, Rec. p. I‑4295, point 20, et du 21 juin 2007, Commission/Hosman-Chevalier, C-424/05 P, non encore publié au Recueil, point 35). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
868,173 | 66
With regard to the alleged infringement of the principle of equal treatment invoked by the appellants, on the assumption that this ground of appeal seeks to demonstrate that the Commission ought to have departed from that method by deciding, as regards the appellants, to reduce the amount of the fine because of the less diversified nature of their activity, the Court notes, as did the Advocate General in point 100 of her Opinion, that the difference in the proportion represented by the fine in relation to the total turnover of the undertakings concerned does not, as such, constitute a sufficient justification for departing from the method of calculation that the Commission imposed on itself. That would be tantamount to conferring an advantage on the least diversified undertakings on the basis of criteria that are irrelevant in the light of the gravity and the duration of the infringement. When the amount of the fine is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see, to that effect, judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 58 and the case-law cited). | 27. Consequently, the situation of a person such as Mr Covaci, who wishes to lodge an objection against a penalty order which has not yet acquired the force of res judicata and of which he is the addressee, clearly falls within the scope of that directive, with the result that that person must be able to exercise the right to interpretation and translation guaranteed by that directive. | 0 |
868,174 | 53 As regards the method to be used to assess the distinctive character of a mark in respect of which registration is applied for, Community law does not preclude the competent authority, where it has particular difficulty in that connection, from having recourse, under the conditions laid down by its own national law, to an opinion poll as guidance for its judgment (see, to that effect, Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraph 37). | 15 ACCORDING TO ITS ORDINARY MEANING ' ' NOMINAL AMOUNT ' ' REFERS TO AN AMOUNT , IN PRINCIPLE UNCHANGEABLE AND EXPRESSED IN CASH , WHICH MAY BE DIFFERENT FROM THE TRUE ECONOMIC VALUE . IN THE CONTEXT OF GENUINE CAPITAL COMPANIES , THE EXPRESSION IS USED TO DENOTE THE QUANTIFIED VALUE OF THE MEMBER ' S COMPULSORY CONTRIBUTION TO THE CAPITAL COMPANY , WHICH CANNOT BE WAIVED EITHER BY THE COMPANY OR BY THE OTHER MEMBERS , AND WHICH CHARACTERIZES IN DURABLE FASHION THE RELATIONSHIP BETWEEN THE MEMBER AND THE COMPANY .
| 0 |
868,175 | 28. Thus, where a sporting activity takes the form of gainful employment or the provision of services for remuneration, which is true of the activities of semi‑professional or professional sportsmen, it falls, more specifically, within the scope of Article 45 TFEU et seq. or Article 56 TFEU et seq. (see, in particular, Meca-Medina and Majcen v Commission , paragraph 23 and the case-law cited). | 196. Accordingly, it must be held that the proprietor of a public house effects a communication when he intentionally transmits broadcast works, via a television screen and speakers, to the customers present in that establishment. | 0 |
868,176 | 24
It should be noted in that regard that, according to settled case-law, the statement of the reasons on which the judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, inter alia, the judgment of 11 June 2015 in EMA v Commission, C‑100/14P, not published, EU:C:2015:382, paragraph 67 and the case-law cited). | 66 The Court of Justice has no more jurisdiction, on principle, to examine the evidence which the Court of First Instance accepted in support of those facts than to find the facts themselves. Since the evidence was duly obtained and the rules and general principles of law relating to the burden of proof were observed, as also were the rules of procedure in relation to the taking of evidence, it is for the Court of First Instance alone to assess the value which should be attached to the items of evidence produced to it. The pleas in law seeking to criticize that assessment cannot be accepted by the Court. For the same reasons, once the Court of First Instance has found the existence of damage, it alone has jurisdiction to assess, within the confines of the claim, the most appropriate compensation. | 0 |
868,177 | 32. Moreover, Article 174(1) EC provides that the European Union policy on the environment is to contribute to a number of objectives, one of which is the protection of human health. Article 174(3) EC provides that in preparing its policy on the environment, the European Union is obliged to take account of available scientific and technical data. That obligation applies, particularly, to the procedure under Article 95(3) EC, for which it is necessary that new data be taken into account (see, to that effect, Case C‑405/07 P Netherlands v Commission [2008] ECR I‑8301, paragraph 61). | 75. Although it follows from the above that Directive 77/187 leaves a margin for manoeuvre allowing the transferee and the other contracting parties to arrange the salary integration of the transferred workers in such a way that the latter is duly adapted to the circumstances of the transfer in question, the fact remains that the arrangements chosen must be in conformity with the aim of that directive. As the Court has repeatedly held, that objective consists, in essence, of preventing workers subject to a transfer from being placed in a less favourable position solely as a result of the transfer (Case C‑478/03 Celtec [2005] ECR I‑4389, paragraph 26 and case-law cited; and, in relation to Directive 2001/23, order in Case C‑386/09 Briot [2010] ECR I‑0000, paragraph 26). | 0 |
868,178 | 44 Any tax advantage resulting for providers of services from the low taxation to which they are subject in the Member State in which they are established cannot be used by another Member State to justify less favourable treatment in tax matters given to recipients of services established in the latter State (see, as regards Article 52 of the EC Treaty (now, after amendment, Article 43 EC), Commission v France, paragraph 21, and Asscher, paragraph 53, both cited above). | 50. Late notification of the derogating measure cannot entail the same consequences as a failure to notify. Article 27(5) of the Sixth Directive does not in fact impose any sanction in respect of the failure to comply with the time-limit for notification. Furthermore, the purpose of that notification is not to obtain the Commission’s authorisation, but simply to enable it to become acquainted with the measure concerned and to evaluate it. In those circumstances, failure to comply with the time-limit for notification cannot be regarded as a material procedural defect capable of rendering inapplicable a derogating measure which was notified late. | 0 |
868,179 | 40 It should be recalled at the outset that the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 189 of the Treaty and by the directive itself (Case 51/76 Verbond van Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 113, paragraph 22; Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 48, and Case 72/95 Kraaijeveld and Others v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, paragraph 55). That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (see Case C-106/89 Marleasing v Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8, and Kraaijeveld, cited above, paragraph 55). | 20. As regards the third criteria, the French Government submits that the mere proliferation of a plant species is not sufficient to establish an undesirable disturbance so long as there is no disruption to the balance of other organisms present in the water. | 0 |
868,180 | 57. Therefore, the above interpretation is such as to guarantee transparency by enabling the addressee of a document to know the extent of his rights and to allow uniform application of Regulation No 1393/2007 (see, by analogy, judgments in Leffler , C‑443/03, EU:C:2005:665, paragraph 46, and Weiss und Partner , C‑14/07, EU:C:2008:264, paragraph 60), without creating any delay in the service of that document, but, on the contrary, contributing to simplifying and facilitating that service. | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
868,181 | 24 Furthermore, where a Member State, when implementing a Commission decision relating to State aid, encounters unforeseen and unforeseeable difficulties or becomes aware of consequences not contemplated by the Commission, it must submit those problems for consideration by the Commission, together with proposals for suitable amendments to the decision in question. In such a case the Commission and the Member State concerned must respect the principle underlying Article 5 of the EC Treaty (now Article 10 EC), which imposes a duty of genuine cooperation on the Member States and the Community institutions, and must work together in good faith with a view to overcoming difficulties whilst fully observing the Treaty provisions, and in particular the provisions on aid (see, in particular, Case 94/87 Commission v Germany [1989] ECR 175, paragraph 9, and Commission v Portugal, cited above, paragraph 40). | 33. Moreover, such a contract does not appear to be one of the two types of contracts which, although entered into by public entities, do not come within the scope of European Union public procurement law. | 0 |
868,182 | 30. Therefore, Member States can, in accordance with Article 273, first paragraph, of Directive 2006/112, legitimately take measures that are necessary to prevent the misuse of identification numbers, in particular by undertakings whose activity, and consequently their status as taxable persons, is purely fictitious. However, these measures must not go beyond what is necessary for the correct collection of the tax and the prevention of evasion, and they must not systematically undermine the right to deduct VAT, and hence the neutrality of that tax (see, to that effect, Case C-146/05 Collée [2007] ECR I-7861, paragraph 26; Nidera Handelscompagnie , paragraph 49; Dankowski , paragraph 37; and VSTR , paragraph 44). | 131. Il y a lieu de rappeler que, selon une jurisprudence constante, les griefs dirigés contre des motifs surabondants d’une décision du Tribunal ne sauraient entraîner l’annulation de cette décision et sont donc inopérants (voir arrêt du 2 septembre 2010, Commission/Deutsche Post, C‑399/08 P, non encore publié au Recueil, point 75 et jurisprudence citée). | 0 |
868,183 | 70
It is only when the worker in question has established such facts or evidence that the burden of proof is shifted back and that it is for the defendant to prove that there has been no breach of the principle of non-discrimination (see, to that effect, judgment of 21 July 2011, Kelly, C‑104/10, EU:C:2011:506, paragraph 30). | 41 That argument does not carry conviction either. It is clear from the aforementioned Koester judgment that since the Council has laid down in its basic regulation the essential rules governing the matter in question, it may delegate to the Commission general implementing power without having to specify the essential components of the delegated power; for that purpose, a provision drafted in general terms provides a sufficient basis for the authority to act. | 0 |
868,184 | 96. In addition, such a presumption is also justified in the light of the Statute of the Court of Justice of the European Union and the Rules of Procedure of the EU Courts (see, by analogy, Commission v Technische Glaswerke Ilmenau , paragraph 55). | 51 In assessing the distinctive character of a mark in respect of which registration has been applied for, the following may also be taken into account: the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant class of persons who, because of the mark, identify goods as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations. | 0 |
868,185 | 86. The legality of a decision concerning State aid must be assessed in the light of the information available to the Commission when the decision was adopted (Case C-288/96 Germany v Commission [2000] ECR I-8237, paragraph 34, and Case C-74/00 Falck and Acciaierie Di Bolzano v Commission [2002] ECR I-7869, paragraph 168). | 34 Furthermore, it must be borne in mind that, according to settled case-law, the legality of a decision concerning aid is to be assessed in the light of the information available to the Commission when the decision was adopted (Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 16, and Case C-241/94 France v Commission [1996] ECR I-4551, paragraph 33). | 1 |
868,186 | 68 AS THE COURT INDICATED IN ITS JUDGMENT OF 15 JULY 1970 IN CASE 41/69 ACF CHEMIEFARMA V COMMISSION ( 1970 ) ECR 661 AT P . 691 , PARAGRAPHS 91 TO 93 , THE DECISION IS NOT NECESSARILY REQUIRED TO BE A REPLICA OF THE COMMISSION ' S NOTICE OF OBJECTIONS . IN FACT THE COMMISSION MUST TAKE INTO ACCOUNT THE FACTORS EMERGING FROM THE ADMINISTRATIVE PROCEDURE IN ORDER EITHER TO ABANDON SUCH OBJECTIONS AS HAVE BEEN SHOWN TO BE UNFOUNDED OR TO SUPPLEMENT AND RE-DRAFT ITS ARGUMENTS BOTH IN FACT AND IN LAW IN SUPPORT OF THE OBJECTIONS WHICH IT MAINTAINS . THIS LATTER POSSIBILITY DOES NOT CONFLICT WITH THE PRINCIPLE OF THE RIGHTS OF THE DEFENCE PROTECTED BY ARTICLE 4 OF REGULATION NO 99/63 . | 27 Finally, so far as the purpose of the Directive is concerned, it is intended, as the recitals in its preamble indicate, to encourage the free movement of capital which is regarded as essential for the creation of an economic union whose characteristics are similar to those of a domestic market. As far as concerns taxes on the raising of capital, the pursuit of such an objective presupposes the abolition of indirect taxes in force in the Member States until then and imposing in place of them a duty charged only once in the common market and at the same level in all the Member States (Case C-2/94 Denkavit Internationaal and Others [1996] ECR I-2827, paragraph 16, and Fantask and Others, cited above, paragraph 13). | 0 |
868,187 | 15 As regards, second, the provisions of the Directive which the Kingdom of Spain considers to have been transposed by rules in force before the end of the period laid down by the Commission, it must be observed that, as the Commission has rightly pointed out, it is necessary in this case to adopt a specific measure transposing the Directive, since the second paragraph of Article 57(1) expressly requires Member States to ensure that their measures transposing the Directive include a reference to it or that such reference is made when they are officially published (see, to the same effect, Case C-137/96 Commission v Germany [1997] ECR I-0000, paragraph 8). The measures on which the Kingdom of Spain relies, however, mentioned in paragraph 8 above, do not meet that requirement. | 29. Such a difference in treatment can be justified only if it is based on objective considerations which are independent of the nationality of the persons concerned and proportionate to the aim legitimately pursued by the national law (Case C-237/94 O’Flynn [1996] ECR I-2617, paragraph 19, and Collins , paragraph 66). | 0 |
868,188 | 12 For the purpose of answering the question referred, it must be noted that, according to settled law (see, in particular, Case C-125/92 Mulox IBC v Geels [1993] ECR I-4075, paragraph 10, and Case C-383/95 Rutten v Cross Medical [1997] ECR I-0000, paragraph 12), the Court will, in principle, interpret the terms of the Convention autonomously so as to ensure that it is fully effective having regard to the objectives of Article 220 of the EEC Treaty, for the implementation of which it was adopted. | 35. It is also apparent from that provision that the relevant time for determining whether there was bad faith on the part of the applicant is the time of filing the application for registration. | 0 |
868,189 | 49. As regards the ability of an agreement, decision or concerted practice extending over the whole of the territory of a Member State to affect trade between Member States, it is settled case-law that such an agreement, decision or concerted practice has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpenetration which the FEU Treaty is designed to bring about (see judgments in Vereeniging van Cementhandelaren v Commission , 8/72, EU:C:1972:84, paragraph 29; Commission v Italy , C‑35/96, EU:C:1998:303, paragraph 48; and Wouters and Others , C‑309/99, EU:C:2002:98, paragraph 95). | 33. With regard to the legislation at issue in the main proceedings, the Kingdom of the Netherlands decided to make fiscal investment enterprises liable to corporation tax, but at a rate of 0%, provided that all the profits of those enterprises, less certain amounts which may be legally set aside, are distributed to their shareholders. | 0 |
868,190 | 38 In order to determine whether the dual legal basis contended for by the Parliament was necessary, it is appropriate to consider whether, according to its aim and content, as they appear from its actual wording, the contested decision is concerned, indissociably, both with industry and with culture (see, to that effect, Case C-300/89 Commission v Council [1991] ECR I-2867, paragraph 13). | 43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC. | 0 |
868,191 | 123. The European Union must respect international law in the exercise of its powers, and therefore Directive 2008/101 must be interpreted, and its scope delimited, in the light of the relevant rules of the international law of the sea and international law of the air (see, to this effect, Poulsen and Diva Navigation , paragraph 9). | 22 Given its role as guardian of the Treaty, the Commission alone is therefore competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned on the basis of which those proceedings should be brought. It may therefore ask the Court to find that, in not having achieved, in a specific case, the result intended by the directive, a Member State has failed to fulfil its obligations. | 0 |
868,192 | 27
In that connection, it must be recalled that Article 1(2) of Directive 93/13 introduces an exclusion into the scope of the directive which covers terms which reflect mandatory statutory or regulatory provisions (judgment of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 76, and, to that effect, judgment of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 25). | 76. The Court has already had occasion to point out that Article 1(2) of Directive 93/13 establishes an exclusion from the scope of that directive which covers terms which reflect mandatory statutory or regulatory provisions (see, to that effect, the judgment in RWE Vertrieb , C‑92/11, EU:C:2013:180, paragraph 25). | 1 |
868,193 | 43
However, the Court has also made clear that the Commission must ensure that the rights of the defence are not impaired during the stage of the investigation procedure which precedes the notification of the statement of objections (see, inter alia, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 63). | 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 |
868,194 | 55 In that regard it should be pointed out that even though Article 8(1) of Regulation No 729/70 did not include provisions as specific as those of Article 17(4) of Regulation (EEC) No 2456/93, the fact remains that, according to settled case-law of the Court, that provision, which constitutes an expression, in the sphere of agriculture, of the obligations imposed on Member States by Article 5 of the EC Treaty (now Article 10 EC), defines the principles according to which the Community and the Member States must ensure the implementation of Community decisions on agricultural intervention financed by the EAGGF and combat fraud and irregularities in relation to those operations (see Joined Cases 146/81, 192/81 and 193/81 BayWa and Others v Bundesanstalt für Landwirtschaftliche Marktordnung [1982] ECR 1503, paragraph 13). It imposes on the Member States the general obligation to take the measures necessary to satisfy themselves that the transactions financed by the EAGGF are actually carried out and are executed correctly, even if the specific Community act does not expressly provide for the adoption of particular supervisory measures (see Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraphs 16 and 17 and Case C-209/96 United Kingdom v Commission [1998] ECR I-5655, paragraph 43). | 55. It is common ground that the content of international agreements cannot be amended unilaterally, without new negotiations being undertaken by the contracting parties. | 0 |
868,195 | 40. According to settled case-law, Article 308 EC may be used as the legal basis for a measure only where no other provision of the EC Treaty gives the Community institutions the necessary power to adopt it (Case C‑84/94 United Kingdom v Council [1996] ECR I‑5755, paragraph 48; Case C‑22/96 Parliament v Council [1998] ECR I-3231, paragraph 22; and Case C‑436/03 Parliament v Council [2006] ECR I-3733, paragraph 36 and the case-law cited). | À cet égard, il importe de rappeler qu’il est indispensable dans chaque cas individuel, de déterminer, au moyen, notamment, d’une analyse des composants d’un signe et de leur poids relatif dans la perception du public visé, l’impression d’ensemble produite par le signe dont l’enregistrement est demandé dans la mémoire dudit public et de procéder ensuite, à la lumière de cette impression d’ensemble et de tous les facteurs pertinents de l’espèce, à l’appréciation du risque de confusion (arrêt du 8 mai 2014, Bimbo/OHMI, C‑591/12 P, EU:C:2014:305, point 34). | 0 |
868,196 | 86. Thus, where a person’s driving licence has been withdrawn in a Member State, Article 8(4) does not, in principle, authorise that Member State to refuse to recognise the validity of a driving licence subsequently issued to the same person by another Member State outside a period during which no application may be made by him for the issue of a new driving licence (see, to that effect, Kapper , paragraph 76; Wiedemann and Funk , paragraph 64; Zerche and Others , paragraph 60; and the orders in Halbritter , paragraph 27; Kremer , paragraph 29; and Möginger , paragraph 44). | 20 It appears, furthermore, from the documents before the Court, that it is composed of three members, two of whom are full-time appointees. They are appointed by public authority for a five-year term and enjoy the same guarantees as judges against removal from office. | 0 |
868,197 | 25. In order to attain those objectives, Article 4(1) of the directive provides, in order to avoid double taxation, that, where a parent company receives, by virtue of its association with its subsidiary, distributed profits, the Member State of the parent company is either to refrain from taxing such profits, or to authorise the parent company to deduct from the amount of tax payable that fraction of the corporation tax paid by the subsidiary which relates to those profits and, if appropriate, the amount of the withholding tax levied by the Member State in which the subsidiary is resident, up to the limit of the amount of the corresponding domestic tax ( Test Claimants in the FII Group Litigation , paragraph 102). | 33. Il y a lieu de rappeler que, selon une jurisprudence constante, l’indemnité de dépaysement prévue à l’article 69 du statut et dont les modalités d’octroi sont précisées à l’article 4, paragraphe 1, de l’annexe VII du même statut, disposition dans laquelle figure la notion de «services effectués pour un autre État», a pour objet de compenser les charges et désavantages particuliers résultant de la prise de fonctions auprès des Communautés pour les fonctionnaires qui sont, de ce fait, obligés de transférer leur résidence de l’État de leur domicile à l’État d’affectation et de s’intégrer dans un nouveau milieu. La notion de dépaysement dépend également de la situation subjective du fonctionnaire, à savoir de son degré d’intégration dans le nouveau milieu résultant, par exemple, de sa résidence habituelle ou de l’exercice d’une activité professionnelle principale (voir arrêts du 15 septembre 1994, Magdalena Fernández/Commission, C‑452/93 P, Rec. p. I‑4295, point 20, et du 21 juin 2007, Commission/Hosman-Chevalier, C-424/05 P, non encore publié au Recueil, point 35). | 0 |
868,198 | 27
In addition, according to settled case-law, Article 23(1) of Regulation No 44/2001 must be interpreted as meaning that, like the aim pursued by the first paragraph of Article 17 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, ensuring the real consent of the parties is one of the aims of that provision (see, inter alia, judgment of 7 February 2013 in Refcomp, C‑543/10, EU:C:2013:62, paragraph 28 and case-law cited) and that, consequently, that provision imposes on the court before which the matter is brought the duty of examining whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated (see, inter alia, judgments of 9 November 2000 in Coreck, C‑387/98, EU:C:2000:606, paragraph 13 and the case-law cited, and of 7 February 2013 in Refcomp, C‑543/10, EU:C:2013:62, paragraph 27). | 47. Accordingly, it is not relevant, in an assessment of the scope of the protection of the sui generis right, that the act of extraction and/or re-utilisation is for the purpose of creating another database, whether in competition with the original database or not, and whether the same or a different size from the original, nor is it relevant that the act is part of an activity other than the creation of a database. The 42nd recital of the preamble to the directive confirms, in that connection, that ‘the right to prohibit extraction and/or re-utilisation of all or a substantial part of the contents relates not only to the manufacture of a parasitical competing product but also to any user who, through his acts, causes significant detriment, evaluated qualitatively or quantitatively, to the investment’. | 0 |
868,199 | 35. As regards, second, the circumstance that the Bulgarian, Polish or Slovak national who applies in the Netherlands for a full residence permit with a view to establishment on the basis of the Association Agreements claims to satisfy clearly and manifestly the substantive requirements which should have been checked within the framework of the system of prior control set up by the Netherlands legislation, it is admittedly true that the Court held in Barkoci and Malik , at paragraph 74, that Articles 45(3) and 59(1) of the Communities-Czech Republic Agreement do not preclude the competent immigration authorities of the host Member State from requiring a Czech national, prior to his departure to that State, to obtain entry clearance, grant of which is subject to verification of substantive requirements relating to establishment, such as those set out in paragraph 212 of the Immigration Rules, provided that those authorities exercise their discretion in regard to applications for leave to enter for the purpose of becoming established, submitted pursuant to that agreement at the point of entry into that State, in such a way that leave to enter can be granted to a Czech national, on a basis other than that of the Immigration Rules, if that person’s application clearly and manifestly satisfies the same substantive requirements as those which would have been applied had he sought entry clearance in the Czech Republic. | 74 It follows that Articles 45(3) and 59(1) of the Association Agreement do not preclude the competent immigration authorities of the host Member State from requiring a Czech national, prior to his departure to that State, to obtain entry clearance, grant of which is subject to verification of substantive requirements relating to establishment, such as those set out in paragraph 212 of the Immigration Rules, provided that those authorities exercise their discretion in regard to applications for leave to enter for the purpose of becoming established, submitted pursuant to that Agreement at the point of entry into that State, in such a way that leave to enter can be granted to a Czech national, on a basis other than that of the Immigration Rules, if that person's application clearly and manifestly satisfies the same substantive requirements as those which would have been applied had he sought entry clearance in the Czech Republic.
Whether the requirement that a new application to become established be submitted in due and proper form is compatible with the rule on equal treatment set out in Article 45(3) of the Association Agreement | 1 |
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