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49. In that respect, it is settled case-law that any advantage resulting from the low taxation to which a subsidiary established in a Member State other than the one in which the parent company was incorporated is subject cannot by itself authorise that Member State to offset that advantage by less favourable tax treatment of the parent company (see, to that effect, Case 270/83 Commission v France [1986] ECR 273, paragraph 21; see also, by analogy, Case C-294/97 Eurowings Luftverkehr [1999] ECR I-7447, paragraph 44, and Case C-422/01 Skandia and Ramstedt [2003] ECR I-6817, paragraph 52). The need to prevent the reduction of tax revenue is not one of the grounds listed in Article 46(1) EC or a matter of overriding general interest which would justify a restriction on a freedom introduced by the Treaty (see, to that effect, Case C-136/00 Danner [2002] ECR I-8147, paragraph 56, and Skandia and Ramstedt , paragraph 53).
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54. Having regard to the extremely serious damage which could result from improper communication of certain information to a competitor, that body must, before communicating that information to a party to the dispute, give the economic operator concerned an opportunity to plead that the information is confidential or a business secret (see, by analogy, AKZO Chemie and AKZO Chemie UK v Commission , paragraph 29).
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45. In those circumstances, a taxable person can be refused the benefit of the right to deduct only on the basis of the case-law resulting from paragraphs 56 to 61 of Kittel and Recolta Recycling , according to which it must be established, on the basis of objective factors, that the taxable person to whom were supplied the goods or services which served as the basis on which to substantiate the right to deduct, knew, or ought to have known, that that transaction was connected with fraud previously committed by the supplier or another trader at an earlier stage in the transaction.
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61. By contrast, where it is ascertained, having regard to objective factors, that the supply is to a taxable person who knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of VAT, it is for the national court to refuse that taxable person entitlement to the right to deduct.
Costs
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82. In that regard, in Case C‑107/94 Asscher [1996] ECR I‑3089, at paragraph 64, the Court took the view that the application of disadvantageous tax treatment, namely a higher rate of income tax, to non‑resident taxpayers who were not contributing to the social security scheme of the Netherlands was contrary to Article 52 of the Treaty and could not be justified by whether or not the taxpayer was insured under the particular national social security scheme. It stressed in that regard that the determination of the Member State in which the social contributions are paid merely results from the application of the system put in place by Regulation No 1408/71. The fact that certain taxpayers are not insured with a particular social security scheme and that the contributions to that scheme are consequently not levied on their income in the Member State in question can only derive, if it is justified, from the application, when determining the legislation applicable, of the binding general system set up by Regulation No 1408/71 (see, to that effect, Asscher , paragraph 60).
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64 The answer to be given to the national court is therefore that Article 52 of the Treaty precludes a Member State from taking account, by means of a higher rate of income tax, of the fact that, by virtue of the relevant provisions of Regulation No 1408/71 concerning the determination of the applicable legislation, the taxpayer is not obliged to pay contributions to its national social insurance scheme. The fact that, also by virtue of Regulation No 1408/71, the taxpayer is insured under the social security scheme of the State in which he resides is irrelevant in that regard.
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25 In reply to that point it is sufficient to say that equal treatment between men and women in relation to pay is a fundamental principle of Community law and that, given the direct effect of Article 119, its application by employers must be immediate and full.
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49. That question is of particular importance, for VAT purposes, for applying the rate of tax or the exemption provisions in the Sixth Directive (see Case C-349/96 CPP [1999] ECR I-973, paragraph 27 and Case C-41/04 Levob Verzerkeringen and OV Bank [2005] ECR I-9433, paragraph 18).
| 0 |
868,404 |
34. In that regard, the Court has consistently held that Article 39 EC precludes, first, overt discrimination by reason of nationality and all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (Case C‑279/93 Schumacker [1995] ECR I‑225, paragraph 26) and that that article prohibits, second, provisions which preclude or deter a national of a Member State from leaving his country of origin to exercise his right to freedom of movement (Case C‑385/00 Groot [2002] ECR I‑11819, paragraph 78).
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23. S’agissant de la libre prestation des services, il convient de constater que la LIS, même si l’interprétation de celle-ci défendue par le Royaume d’Espagne était retenue, soumet à un régime fiscal différent les dépenses afférentes à des activités de R & D‑IT réalisées par des sous-traitants selon qu’elles sont exécutées en Espagne ou à l’étranger. Une telle législation instaure donc une différence de traitement fondée sur le lieu d’exécution de la prestation de services et constitue une restriction au sens de l’article 49 CE (voir, en ce sens, arrêts du 28 octobre 1999, Vestergaard, C‑55/98, Rec. p. I‑7641, point 21, ainsi que Laboratoires Fournier, précité, points 15 et 16).
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28
In that regard, it should be noted that, according to the Court’s case-law, the system of consumer protection established by Directive 93/13 involves recognition of the national court’s power to determine of its own motion whether a term is unfair (see, to that effect, judgments of 27 June 2000 in Océano Grupo Editorial and Salvat Editores, C‑240/98 to C‑244/98, EU:C:2000:346, paragraphs 26, 28 and 29; of 21 November 2002 in Cofidis, C‑473/00, EU:C:2002:705, paragraphs 32 and 33, and of 26 October 2006 in Mostaza Claro, C‑168/05, EU:C:2006:675, paragraphs 27 and 28).
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Plus particulièrement, en ce qui concerne une demande tendant au réexamen d’une décision antérieure devenue définitive, il résulte d’une jurisprudence constante que seule l’existence de faits nouveaux substantiels peut justifier la présentation d’une telle demande. Ne constitue pas un fait nouveau substantiel, au sens de cette jurisprudence, un fait qui ne modifie pas de façon substantielle la situation du requérant, telle qu’elle se présentait lors de l’adoption de la décision antérieure devenue définitive (voir ordonnance du 26 mars 2003, Inpesca/Commission, C‑170/01 P, non publiée, EU:C:2003:181, points 72 et 73 ainsi que jurisprudence citée).
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69. As regards the administrative cost, Community law requires merely that the Member State reimburse the excess amount in conformity with the rules of national law, provided that the principles of equivalence and effectiveness are respected (see to that effect, inter alia, Case C‑231/96 Edis [1998] ECR I-4951, paragraphs 19, 20 and 34, and Case C‑30/02 Recheio – Cash & Carry [2004] ECR I‑6051, paragraphs 17, 18 and 20).
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Dans la mesure où une telle exonération couvre la location de postes d’amarrage et d’emplacements pour l’entreposage de bateaux
ne présentant pas un lien étroit avec la pratique du sport ou de l’éducation physique, elle dépasse le cadre de l’article
132, paragraphe 1, sous m), de la directive 2006/112.
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868,407 |
49. In that context, it must be recalled that the Court has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters within the jurisdiction of the national court (see, in particular, Case 253/03 CLT‑UFA [2006] ECR I‑1831, paragraph 36, and Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 69).
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83. Finally, as Booker itself acknowledged, the business which it carries on as an owner of a fish farm carries commercial risks. As the Scottish Ministers, the United Kingdom and Netherlands Governments and the Commission correctly maintained, the petitioners in the main proceedings can expect, as farmers, that a fish disease may break out at any moment and cause them loss. Such risk is inherent in the business of raising and selling livestock and is the consequence of a natural occurrence, so far as both List I and II diseases are concerned.
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182
It should be noted in that regard that the absence of an own-motion review of the whole of the contested decision does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court — which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts — should be obliged to undertake of its own motion a new and comprehensive investigation of the file (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 66).
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45. However, it is possible that the activities of director of voluntary sales are to be treated as regulated professional activities under either the second subparagraph of Article 1(d) of Directive 89/48 or the second subparagraph of Article 1(f) of Directive 92/51, since the Royal Institution of Chartered Surveyors is involved, at least to some extent, in the organisation of those activities. If that is the case, the fact that that organisation requires its members to complete a three-year post-secondary course followed by two years’ professional training, and thus makes pursuit of the profession subject to possession of a diploma within the meaning of Article 1(a) of Directive 89/48, would make point (a) of the first subparagraph of Article 3 of Directive 89/48 applicable if the other conditions stated in the second indent of Article 1(d) of that directive were also fulfilled.
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37 According to the United Kingdom, the broad wording of Protocol No 2 indicates that it applies to every kind of discrimination based on sex which may exist in occupational pension schemes, including discrimination concerning the right to join such schemes.
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63. As regards the content of that notification, the consumer cannot be required, at that stage, to furnish evidence that a lack of conformity actually adversely affects the goods that he has purchased. In view of his weak position vis-à-vis the seller as regards the information relating to the qualities of those goods and to the state in which they were sold, the consumer cannot, in addition, be required to state the precise cause of that lack of conformity. By contrast, in order for the notification to be of use to the seller, it must include a certain number of particulars — the degree of precision of which will necessarily vary depending on the specific circumstances of each case — relating to the nature of the goods in question, the wording of the contract of sale in respect of those goods and the way in which the alleged lack of conformity became apparent.
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44
However, the measures which the Member States may adopt under Article 273 of the VAT directive to ensure the correct collection of the tax and to prevent evasion must not go further than is necessary to attain such objectives and must not undermine the neutrality of VAT (see judgment of 26 March 2015, Macikowski, C‑499/13, EU:C:2015:201, paragraph 37 and the case-law cited).
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61. En outre, une opération de valorisation n’est complète que si elle a pour conséquence que la substance en question a acquis les mêmes propriétés et caractéristiques qu’une matière première et est utilisable dans les mêmes conditions de précaution pour l’environnement (voir arrêts ARCO Chemie Nederland e.a., précité, points 94 et 96, ainsi que Palin Granit, point 46).
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40
With regard to the principle of effectiveness, compliance with the requirement of legal certainty requires that the procedural rules implementing Directive 90/434 and, in particular, Article 11(1)(a) should be sufficiently precise, clear and foreseeable to enable taxpayers to know precisely their rights in order to ensure that they are able to benefit from tax advantages under the directive and to rely on them, if necessary, before the national courts (see, to that effect, judgments of 28 February 1991, Commission v Germany, C‑131/88, EU:C:1991:87, paragraph 6; of 10 March 2009, Heinrich, C‑345/06, EU:C:2009:140, paragraphs 44 and 45; of 15 July 2010, Commission v United Kingdom, C‑582/08, EU:C:2010:429, paragraphs 49 and 50; and of 18 October 2012, Pelati, C‑603/10, EU:C:2012:639, paragraph 36 and the case-law cited).
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44. In particular, the principle of legal certainly requires that Community rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (see Case C-158/06 ROM-projecten [2007] ECR I‑5103, paragraph 25 and the case-law cited).
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39. In accordance with the Court’s case-law, observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (see the judgments in Sopropé , EU:C:2008:746, paragraph 38; M. , EU:C:2012:744, paragraph 86; and G. and R. , C‑383/13 PPU, EU:C:2013:533, paragraph 32).
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33. En effet, la base d’imposition pour la livraison d’un bien est constituée par tout ce qui est reçu en contrepartie du bien livré (voir, notamment, en matière de prestations de services, arrêts Tolsma, précité, point 13, et du 29 juillet 2010, Astra Zeneca UK, C‑40/09, Rec. p. I‑7505, point 28), de sorte qu’une telle livraison est effectuée «à titre onéreux», au sens des articles 2, point 1, de la sixième directive et 2, paragraphe 1, sous a), de la directive 2006/112, s’il existe un lien direct entre le bien livré et la contre-valeur reçue (voir arrêts du 7 octobre 2010, Loyalty Management UK et Baxi Group, C‑53/09 et C‑55/09, Rec. p. I‑9187, point 51, ainsi que du 8 novembre 2012, Profitube, C‑165/11, point 51).
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29. Moreover, although it is not disputed that Community law does not detract from the power of the Member States to organise their social security systems and that, in the absence of harmonisation at Community level, it is for the legislation of each Member State to determine the conditions on which social security benefits are granted, it is nevertheless the case that, when exercising that power, the Member States must comply with Community law (see, among others, Smits and Peerbooms , paragraphs 44 to 46, and Müller-Fauré and Van Riet , cited above, paragraph 100, and the case-law cited there).
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20 Contrary to the submissions of the Belgian and German Governments, entitlement to that reduction is retained, even if it was subsequently decided, in view of the results of that study, not to move to the operational phase but to put the company into liquidation, with the result that the economic activity envisaged did not give rise to taxed transactions.
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34. As regards the first issue relating to inadmissibility referred to by the Commission, which is based on the fact that interpretation of Regulation No 1206/2001 does not appear to be necessary for the resolution of the dispute in the main proceedings, it must be recalled that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought of the provisions of European Union law referred to in the questions bears no relation to the purpose of the main action (see, inter alia, Case C-105/03 Pupino [2005] ECR I-5285, paragraph 30, and Case C-467/05 Dell’Orto [2007] ECR I‑5557, paragraph 40).
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73 In that regard it must be observed that the Greek rules relating to the system of maximum consumer prices for petroleum products provide for account to be taken, in the context of the machinery for fixing prices, of numerous factors relating both to imported and to domestic products .
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868,415 |
113. With regard to the factors on the basis of which the competent authorities may gain the necessary level of certainty, the Court has stated that it must be ensured that no reasonable scientific doubt remains, and those authorities must rely on the best scientific knowledge in the field (see Waddenvereniging and Vogelbeschermingsvereniging , paragraphs 59 and 61, and Commission v Italy , paragraph 59).
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26. Moreover, a system under which the amount of the penalties imposed in Article 9 of that regulation varies in accordance with the amount of undeclared cash does not seem, in principle, to be disproportionate in itself.
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33 Articles 85 and 86 of the Treaty apply only to anti-competitive conduct engaged in by undertakings on their own initiative (see to that effect, as regards Article 86 of the Treaty, Case 41/83 Italy v Commission [1985] ECR 873, paragraphs 18 to 20; Case C-202/88 France v Commission - the so-called `telecommunications terminals' judgment - [1991] ECR I-1223, paragraph 55; and Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 20). If anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 85 and 86 do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings (see also Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 36 to 72, and more particularly paragraphs 65, 66, 71 and 72).
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59. In that connection, it must be observed that, according to settled case-law, the fact that an activity referred to in a directive does not yet exist in a 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 (Case C‑339/87 Commission v Netherlands [1990] ECR I-851, paragraph 22; Case C‑214/98 Commission v Greece [2000] ECR I-9601, paragraph 22; Case C‑372/00 Commission v Ireland [2001] ECR I-10303, paragraph 11; and Case C‑441/00 Commission v United Kingdom [2002] ECR I-4699, paragraph 15).
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28. It should be recalled that, as is apparent in particular from Article 1(1) and (2) of Framework Decision 2002/584 and from recitals 5 and 7 in the preamble thereto, the purpose of that decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of criminal proceedings, that system of surrender being based on the principle of mutual recognition (see Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, paragraph 28; Case C-66/08 Kozłowski [2008] ECR I-6041, paragraphs 31 and 43; Wolzenburg , paragraph 56; and Case C-261/09 Mantello [2010] ECR I-11477, paragraph 35).
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25 In that judgment the Court ruled, in the light of those factors, that Community law does not prevent the domestic legislation concerned from having regard, in barring the recovery of unduly paid Community subsidies, to criteria such as loss of the unjust enrichment.
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45. Finally, as regards the Commission’s objection to the second ground of appeal, the fact that an appeal, or a plea in support of an appeal, does not refer to all the reasons which led the Court of First Instance to adopt a position on a question does not result in the plea being inadmissible (see Case C‑458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, paragraph 67, and the order of 23 September 2005 in Case C‑357/04 P Andolfi v Commission , paragraph 24).
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67 It should be noted that the fact that an appeal, or a plea in support of an appeal, does not refer to all the reasons which led the Court of First Instance to adopt a position on a question does not result in the plea being inadmissible.
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51. Within the framework of those powers, the limits of which must be determined by reference amongst other things to the essential general aims of the legislation in question, the Commission is authorised to adopt all the measures which are necessary or appropriate for the implementation of the basic legislation, provided that they are not contrary to it (see, to that effect, Case C-478/93 Netherlands v Commission [1995] ECR I-3081, paragraphs 30 and 31, and Case C‑159/96 Portugal v Commission [1998] ECR I-7379, paragraphs 40 and 41).
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58. In contrast, a court hearing an appeal which has been brought against a decision of a lower court responsible for maintaining a register, rejecting such an application, and which seeks the setting-aside of that decision, which allegedly adversely affects the rights of the applicant, is called upon to give judgment in a dispute and is exercising a judicial function.
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81 According to the case-law of the Court, in principle the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the need which the addressee may have in receiving explanations (Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19, and Joined Cases C-329/93, C-62/95 and C-63/95 Germany and Others v Commission [1996] ECR I-5151, paragraph 31).
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À cet égard, il y a lieu de rappeler que la compétence de la Cour, dans le cadre d’un pourvoi, est limitée à l’appréciation
de la solution légale qui a été donnée aux moyens débattus devant les premiers juges (arrêt du 15 novembre 2012, Conseil/Bamba,
C‑417/11 P, EU:C:2012:718, point 40).
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39 That provision makes any waiver of post-clearance recoveries by the customs authorities subject to three conditions (see, in particular, Case C-250/91 Hewlett Packard France v Directeur Général des Douanes [1993] ECR I-1819, paragraphs 12 and 13, and Covita, cited above, at paragraphs 24 to 28).
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49. Second, no reason of principle related to the nature of the proceedings under way before the Board of Appeal or to the jurisdiction of that department precludes it, for the purpose of giving judgment on the appeal before it, from taking into account facts and evidence produced for the first time at the appeal stage.
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34 Thus, where there is such an agreement, there is not only no direct connection between the dispute and the courts called upon to determine it, but there is also circumvention of Article 17, which, whilst providing for exclusive jurisdiction by dispensing with any objective connection between the relationship in dispute and the court designated (Zelger v Salinitri, paragraph 4), requires, for that very reason, compliance with the strict requirements as to form which it sets out.
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79. Furthermore, the precise prohibition laid down by clause 4(1) of the framework agreement does not require the adoption of any further measure of the EU institutions and does not in any way confer on Member States the right, when transposing it into domestic law, to limit the scope of the prohibition laid down in respect of employment conditions ( Impact , paragraph 62).
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16 Further, Article 7(1)(a) of Directive 79/7 allows Member States to exclude from its scope not only the setting of pensionable age for the purposes of granting old-age and retirement pensions, but also the possible consequences thereof for other benefits.
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37 It must also be pointed out that, in this particular instance, the Federal Supervisory Board exercises a judicial function, for it can find that a determination made by a review body is unlawful and it can direct the review body to make a fresh determination.
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28 The Court of First Instance was therefore right, in reliance on the case-law of the Court of Justice (Case 27/85 Vandelmoortele v Commission [1987] ECR 1129, paragraphs 31 to 34), to take the view in paragraph 58 of the contested judgment that, in those circumstances, even decisions which may subsequently prove to be open to criticism do not necessarily cause the Community to incur liability in the absence of a manifest error of assessment on the part of the institution.
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38. It is apparent from that case‑law, which concerns the relationship between the proprietor of a mark and the licensee thereof, that where a licensee puts goods bearing the mark on the market he must, as a rule, be considered to be doing so with the consent of the proprietor of the trade mark (see Case C‑59/08 Copad [2009] ECR I‑3421, paragraph 46).
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28. It follows that, to be capable of constituting a trade mark for the purposes of Article 2 of the Directive, the subject-matter of any application must satisfy three conditions. First, it must be a sign. Secondly, that sign must be capable of being represented graphically. Thirdly, the sign must be capable of distinguishing the goods or services of one undertaking from those of other undertakings (see, to that effect, Libertel , paragraph 23, and Case C‑49/02 Heidelberger Bauchemie [2004] ECR I‑6129, paragraph 22).
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31. In such circumstances, the meaning and scope of terms for which EU law provides no definition must be determined by reference to their usual meaning in everyday language, while account is also taken of the context in which they occur and the purposes of the rules of which they form part (Case C‑592/11 Ketelä EU:C:2012:673, paragraph 51 and the case-law cited).
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42. After all available internal procedures have been exhausted, the Court of Justice shall have jurisdiction in any dispute between the ECB and a member or a former member of its staff to whom these Conditions of Employment apply.
Such jurisdiction shall be restricted to the legality of the measure or decision, unless the dispute is of a financial nature, in which case the Court of Justice shall have unlimited jurisdiction.’
4. Pursuant to Article 12.3 of the ESCB Statute, the Governing Council adopted the Rules of Procedure of the ECB, as amended on 22 April 1999 (OJ 1999 L 125, p. 34), which provide inter alia as follows:
‘Article 11
Staff of the ECB
11.1. Each member of the staff of the ECB shall be informed of his/her position within the structure of the ECB, his/her reporting line and his/her professional responsibilities.
...
Article 21
Conditions of Employment
21.1. The employment relationship between the ECB and its staff shall be determined by the Conditions of Employment and the Staff Rules.
21.2. The Conditions of Employment shall be approved and amended by the Governing Council upon a proposal from the Executive Board. The General Council shall be consulted under the procedure laid down in these Rules of Procedure.
21.3. The Conditions of Employment shall be implemented by Staff Rules, which shall be adopted and amended by the Executive Board.’
Background to the dispute
5. Mr Pflugradt has been employed by the ECB since 1 July 1998. He was appointed to the Directorate-General for Information Systems (‘DG IS’), where from the time he was recruited he has worked as UNIX coordinator.
6. On 9 October 1998 the appellant agreed to the terms of a document entitled ‘UNIX coordinator responsibilities’, which contained a list of the various duties attaching to his post. Those duties included conducting appraisals with members of the UNIX team.
7. On 13 October 1998 the ECB sent the appellant a letter of appointment with retroactive effect to 1 July 1998.
8. On 14 October 1999 the Director-General of DG IS informed the appellant that he would not be responsible for preparing performance appraisals for members of the UNIX team.
9. On 23 November 1999 the appellant had an appraisal interview with his head of division. The head of division set out his assessment of the appellant in the latter’s performance appraisal for 1999, which is the document contested in Case T‑178/00.
10. On 12 January 2000 the appellant put forward several observations on the assessment made of him and wrote on his performance appraisal for 1999 that he reserved the right to reject an unfair appraisal.
11. On 10 March 2000 the appellant applied, under Article 41 of the Conditions of Employment, for an administrative review of the performance appraisal for 1999 on the ground that it was based on factual errors and therefore infringed his contractual rights. He also requested another appraisal for 1999, to be conducted by other persons who would be unbiased.
12. On 10 April 2000 the Director-General of DG IS rebutted the appellant’s claims that the performance appraisal for 1999 contained factual errors and turned down the request for another appraisal procedure to be initiated.
13. On 9 May 2000 the appellant submitted a complaint to the President of the ECB under the grievance procedure, based essentially on the grounds relied on in the context of the administrative review procedure.
14. On 8 June 2000 the President of the ECB dismissed that complaint.
15. By note of 28 June 2000 the Director-General of DG IS sent the appellant a list of his main responsibilities, stating that that list would provide the basis for his annual appraisal. That document was the subject of the action in Case T-341/00.
The judgment under appeal
16. Having joined the two cases (T-178/00 and T-341/00), the Court of First Instance first found that, in his action in Case T-178/00, Mr Pflugradt was seeking annulment of the performance appraisal for 1999 first, in so far as it withdraws from him responsibility for appraising members of the UNIX team and, second, in so far as it contains various assessments of his work.
17. In dismissing those claims, the Court held, in paragraphs 49 and 53 of the judgment under appeal, that although the employment relationship between the ECB and its staff is of a contractual nature and although the binding force of contracts precludes the ECB as an employer from imposing alterations to the conditions under which employment contracts are performed without the consent of the staff members concerned, that principle applies only to the essential elements of the employment contract.
18. In that connection, the Court of First Instance held in paragraph 54 of the judgment under appeal:
‘The ECB, like any other institution or undertaking, has management powers in the organisation of its services and in the management of its staff. As a Community institution it even enjoys wide discretion in the organisation of its services and in the assignment of its staff to perform its public service responsibilities (see, by analogy, the judgments of the Court of Justice in Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 17, and Case C‑294/95 P Ojha v Commission [1996] ECR I-5863, paragraph 40; and the judgments of the Court of First Instance in Case T-33/90 Von Bonkewitz-Lindner v Parliament [1991] ECR II-1251, paragraph 88, and Case T-176/97 Hick v ESC [1998] ECR-SC I-A-281 and II-845, paragraph 36). It may therefore over time develop its employment relationships with its staff in the best interests of the service in order to arrive at an effective organisation of work and a consistent allocation of the various duties among members of the staff and to adapt to varying needs. A member of staff recruited to a post for an indefinite period which might last until he reached the age of 65 cannot reasonably expect that every aspect of internal organisation will remain unchanged for his entire career or that he will retain throughout his career the responsibilities allocated to him at the time of his appointment.’
19. In paragraphs 58 to 60 of the judgment under appeal, the Court of First Instance then held:
‘58 It is common ground that despite the alteration of his responsibilities the applicant retained his job as UNIX coordinator, falling within the category of professionals and Grade G, with the relevant remuneration.
59 It is clear from the job description of 5 October 1998 that the post of UNIX coordinator is essentially of a technical nature, and that the staff-related and administrative duties are merely secondary. Thus, withdrawal of the duty of appraising members of the UNIX team did not by itself result in downgrading, as a whole, the applicant’s duties clearly below the responsibilities corresponding to his job. In that regard it is appropriate to point out that it is common ground that the applicant has never had to conduct appraisals for members of the UNIX team, as that responsibility was withdrawn from him even before the ECB embarked upon the first round of annual appraisals for its staff. In those circumstances the alteration in question does not represent a downgrading of the applicant’s job and cannot therefore be regarded as infringing an essential element of the employment contract.
60 Consequently, the applicant’s complaints are unfounded. That plea must therefore be rejected.’
20. In dismissing the plea concerning the assessment made in the performance appraisal for 1999, the Court of First Instance held, in paragraphs 68 to 71 of the judgment under appeal:
‘68 Although he claims that the performance appraisal for 1999 is based on material factual errors, the applicant is seeking in fact to challenge the validity of the assessments made by his superiors of his work during 1999.
69 It is not, however, for the Court to substitute its assessment for that of the persons responsible for appraising the applicant’s work. The ECB, like other institutions and bodies of the Community, enjoys wide discretion in appraising the work of members of its staff. Judicial review by the Court of the assessments contained in the annual performance appraisal of a member of the ECB staff relates only to possible procedural irregularities, manifest factual errors in such assessments and any misuse of power (see, by analogy, Case T-63/89 Latham v Commission [1991] ECR II-19, paragraph 19).
70 In the present case, as the applicant has failed to establish the existence of circumstances of that nature his complaints cannot be accepted.
71 Moreover, the reasoning in the performance appraisal for 1999 is sufficiently precise to satisfy the requirements of Article 253 EC, applicable under Article 34.2 of the ESCB Statute to decisions taken by the ECB.’
21. Second, the Court of First Instance found that Mr Pflugradt, in his submissions in Case T-341/00, sought to obtain the annulment of the decision contained in the note of 28 June 2000 in which the ECB, in his opinion, altered his responsibilities.
22. In paragraphs 81 and 82 of the judgment under appeal, the Court of First Instance accepted that that note constituted a measure adversely affecting the applicant and therefore declared the application admissible.
23. However, it dismissed those submissions on the merits, holding in paragraphs 89 and 90 of that judgment:
‘89 First, as the Court has held in paragraph 54 in relation to Case T-178/00, the applicant cannot reasonably expect to retain until retirement age certain specific duties which may have been allocated to him when he was appointed by the ECB. Therefore the applicant’s claims with regard to his allegedly exclusive areas of responsibility must be dismissed.
90 Second, as regards whether the ECB manifestly exceeded the limits of its organisational authority by unilaterally altering the applicant’s responsibilities, it should be noted first that it is not disputed that those alterations were made in the interest of the service. Secondly, the applicant has not supported his arguments with detailed evidence sufficient to demonstrate that those alterations affect essential aspects of his employment contract by reducing his responsibilities as a whole clearly below those which correspond to his post and that they therefore constitute a downgrading of that post. On the contrary, it is plain that the applicant retains his essential duties with regard to the UNIX systems and the coordination of the UNIX specialists. The applicant’s complaints regarding an alleged downgrading of his post must therefore be rejected.’
Forms of order sought
24. Mr Pflugradt claims that the Court should:
– annul the judgment under appeal;
– annul the performance appraisal for 1999;
– annul the note of 28 June 2000 in so far as it alters the responsibilities of the appellant;
– order the ECB to pay the costs.
25. The ECB contends that the Court should:
– dismiss the appeal;
– order Mr Pflugradt to pay the costs.
The appeal
26. The many arguments put forward by Mr Pflugradt must be regarded as constituting claims that the Court of First Instance made errors of law, distorted pleas, arguments and evidence, disregarded the rules of evidence and that its judgment was vitiated by contradictory grounds.
27. It is logical to group these claims into three sets of pleas concerning, respectively, the contractual nature of the employment relationship between the ECB and its staff, the misapplication of the principles governing the Community civil service and the facts on which the performance appraisal for 1999 was based.
The pleas concerning the contractual nature of the employment relationship between the ECB and its staff
28. Mr Pflugradt submits that, as the legal relationship between the ECB and its staff is of a contractual nature as provided by the first sentence of Article 9(a) of the Conditions of Employment, defined pursuant to Article 36.1 of the ESCB Statute, the Court of First Instance could not, without committing an error in law, base its determination of the ECB’s powers of organisation on the case-law on the rules on assignment of officials and other servants referred to in Article 283 EC.
29. As a preliminary point, it must be observed that, under Article 36.2 of the ESCB Statute and Article 42 of the Conditions of Employment, the Court’s jurisdiction in disputes between the ECB and its staff is restricted to the legality of the measure or decision, unless the dispute is of a financial nature.
30. In the present case, it is common ground that the dispute brought before the Court of First Instance by Mr Pflugradt was not of a financial nature. Accordingly, it had only to rule on the legality of the contested measures, that is to say, to determine whether those adopting the measures had respected the legal obligations incumbent upon them, and was not required to rule on whether the measures taken by the ECB were within the terms of the employment contract at issue and its implementing rules.
31. It must be borne in mind that the employment relationship between the ECB and its staff is defined by the Conditions of Employment, adopted by the Governing Council, on a proposal from the Executive Board of the ECB, on the basis of Article 36.1 of the ESCB Statute. They provide, in Article 9(a), that ‘[e]mployment relations between the ECB and its members of staff shall be governed by employment contracts issued in conjunction with these Conditions of Employment’. Article 10(a) of those conditions provides that ‘[e]mployment contracts between the ECB and its members of staff shall take the form of letters of appointment which shall be countersigned by members of staff’.
32. It must be found that those provisions are comparable to those of the Staff Regulations of the European Investment Bank (‘EIB’) regarding which the Court concluded that the system adopted for the employment relations between the EIB and its employees is contractual and is accordingly founded on the principle that individual contracts concluded between the EIB and each of its employees constitute the outcome of an agreement resting on mutual consent (Case 110/75 Mills v EIB [1976] 955, paragraph 22, and Case C-449/99 P EIB v Hautem [2001] ECR I‑6733, paragraph 93).
33. It must therefore be held that the employment relationship between the ECB and its staff is contractual rather than governed by public service regulations.
34. However, the contract at issue was concluded with a Community body, entrusted with public interest responsibilities and authorised to lay down, by regulation, provisions applicable to its staff. It follows that the consent of the parties to such a contract is necessarily circumscribed by all manner of obligations deriving from those particular responsibilities and incumbent upon both the management bodies of the ECB and its staff. It cannot be disputed that the Conditions of Employment are intended to meet those obligations and enable the ECB, in accordance with the third recital of the Conditions of Employment, to secure ‘the service of staff of the highest standard of independence, ability, efficiency and integrity …’.
35. On that point, according to Article 9(a) of the Conditions of Employment, the employment contracts are issued in conjunction with those conditions. Accordingly, by countersigning the letter of appointment provided for by Article 10(a) of the Conditions of Employment, staff agree to be bound by those conditions without being able to negotiate individually any of their terms. Consent is thus to an extent limited to acceptance of the rights and obligations laid down by the Conditions of Employment. It must be borne in mind that, as regards the interpretation of those rights and obligations, Article 9(c) of the Conditions of Employment provides that the ECB is to show due regard for the authoritative principles of the regulations, rules and case-law which apply to the staff of the EC institutions.
36. It is true that the employment contracts of members of the ECB staff may contain other terms agreed to by the member of staff concerned following discussion, relating, for example, to the essential features of the tasks entrusted to him. However, the existence of such terms does not in itself preclude the exercise by the management bodies of the ECB of their discretion to implement the measures entailed by the public interest obligations deriving from the particular responsibilities entrusted to the ECB. Those bodies may for instance be compelled, in order to meet such requirements of the service, and in particular to enable it to adapt to new needs, to take unilateral decisions or measures liable to alter inter alia the implementing conditions of employment contracts.
37. It follows that, in exercising that discretion, the management bodies of the ECB are not in any different position from that in which the management bodies of other Community bodies and institutions find themselves in their relations with their staff.
38. Against that background, the Court of First Instance, confining itself to considering the legality of the contested measures as it was bound to do, was right to see its role as the assessment of legality in the light of the principles applicable to all staff of other Community bodies and institutions. The Court of First Instance has, therefore, not disregarded the contractual nature of the position of the ECB staff members. Moreover, the Court of First Instance did not make an error of law in holding, in paragraph 59 of its judgment, that the alteration of the duties in question did not infringe an essential element of the employment contract.
39. In that light, contrary to Mr Pflugradt’s contentions, the Court of First Instance, in dismissing the arguments relied on in that connection, disregarded neither the ‘principle of institutional balance’ nor ‘the rules of evidence’, nor did it distort the arguments relied on by the applicant in that case.
40. The pleas relied upon relating to the contractual nature of the employment relationship between the ECB and its staff must, therefore, be rejected.
The pleas concerning the application of the principles governing the assignment of staff
41. Mr Pflugradt submits that, even while, mistakenly, in his view, applying the principles governing the assignment of staff to the staff of the ECB, in the light of the law on the Community civil service, the Court of First Instance breached those principles.
42. It should be recalled that the Court of Justice has held that the Community institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided such assignment is made in the interest of the service and conforms with the principle of assignment to an equivalent post (see Lux v Court of Auditors , cited above, paragraph 17; Case 19/87 Hecq v Commission [1988] ECR 1681, paragraph 6; and Ojha v Commission , cited above, paragraph 40).
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53. That being so, it must be borne in mind that a general presumption of fraud is not sufficient to justify a measure which compromises the objectives of the FEU Treaty (see, to that effect, Commission v France , paragraph 52, and Case C-433/04 Commission v Belgium [2006] ECR I-10653, paragraph 35).
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868,427 |
24. According to settled case-law, in order to be characterised as exempt transactions for the purposes of points 3 and 5 of Article 13B(d) of the Sixth Directive, the services provided must, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of a service described in those points. As regards transactions concerning transfers, within the meaning of Article 13B(d)(3) of that directive, the services provided must have the effect of transferring funds and entail changes of a legal and financial character. A service exempt under the directive must be distinguished from a mere physical or technical supply, such as making a data-handling system available to a bank. To that end, the national court must examine in particular the extent of the responsibility of the supplier of services vis-à-vis the banks, in particular the question whether that responsibility is restricted to technical aspects or whether it extends to the specific, essential aspects of the transactions (see, to that effect, SDC , paragraph 66, and Case C‑235/00 CSC Financial Services [2001] ECR I-10237, paragraphs 25 and 26).
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101 However, the system of remedies set up by the Treaty distinguishes between actions under Articles 226 EC and 227 EC, which are directed to obtaining a declaration that a Member State has failed to fulfil its obligations, and those under Articles 230 EC and 232 EC, which are directed to obtaining judicial review of measures adopted by the Community institutions or of failure to act on their part. Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of decisions addressed to it as a defence to infringement proceedings arising out of its failure to implement those decisions (Case C-74/91 Commission v Germany [1992] ECR I-5437, paragraph 10, and Case C-261/99 Commission v France, cited above, paragraph 18).
Challenge to the DBES on the basis of the alleged non-compliance of United Kingdom beef and veal with Community legislation
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868,428 |
28 In that judgment, the Court further held that, unlike the provisions of Regulations Nos 1765/92 and 805/68 which require the payment of aid in its entirety, Commission Regulation (EEC) No 1725/79 of 26 July 1979 on the rules for granting aid to skimmed milk processed into compound feedingstuffs and skimmed-milk powder intended for feed for calves (OJ 1979 L 199, p. 1), which was at issue in Denkavit Futtermittel, made no provision in relation to fees for inspections to be carried out by the Member States (Kellinghusen and Ketelsen, paragraph 23). The same finding must apply as regards the provisions contained in the regulations which formed the subject-matter of the questions referred for a preliminary ruling which were answered in the Bussone judgment, paragraphs 14, 15 and 21. It follows that the Denkavit Futtermittel and Bussone judgments cannot be cited as authority in this case.
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14WHILST THE REGULATIONS ON THE COMMON ORGANIZATION OF THE MARKET IN EGGS AND ON MARKETING STANDARDS FOR EGGS CONTAIN DETAILED RULES RELATING TO GRADING BY QUALITY AND WEIGHT , PACKING , WAREHOUSING , TRANSPORT , PRESENTATION AND MARKING OF EGGS THEY CONTAIN NO PROVISION RELATING TO THE SELLING PRICE OF LABELS OR THE METHOD OF FINANCING THE ADMINISTRATE COSTS INHERENT IN THE SUPERVISION .
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92. It is important, however, to note in that respect that the measures which the Member States may adopt under Article 22(8) of the Sixth Directive in order to ensure the correct levying and collection of the tax and for the prevention of fraud must not go further than is necessary to attain such objectives (see Gabalfrisa and Others, paragraph 52, and the order in Transport Service , paragraph 29). They may not therefore be used in such a way that they would have the effect of undermining the neutrality of VAT, which is a fundamental principle of the common system of VAT established by the relevant Community legislation (see Case C-454/98 Schmeink & Cofreth and Strobel [2000] ECR I-6973, paragraph 59).
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6 Secondly, care insurance gives entitlement to direct payment of the cost of nursing home or hospital care provided to the insured person, to allowances designed to cover the absence on holiday of the third party who usually looks after the person insured and to allowances and payments for various costs entailed by the insured person's reliance on care, such as the purchase and installation of special equipment and work required to adapt the home.
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868,430 |
27. Second, an argument based on the need to safeguard the cohesion of a tax system must be examined in the light of the objective pursued by the tax legislation in question ( Manninen , paragraph 43).
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74
Since the preliminary annual number of allowances granted free of charge to industrial installations corresponds, in accordance with Article 10(2) of Decision 2011/278, inter alia, to the value of the benchmarks referred to in Annex I of that decision, including those for coke, hot metal and sintered ore, multiplied by the relevant product-related historical activity level, that number increased in accordance with the adaptations made by the Commission. However, in so far as the waste gases were combusted by electricity generators, the corresponding emissions were not taken into account when establishing the maximum annual amount of allowances.
| 0 |
868,431 |
27. The applicants in the main proceedings appealed against the orders of 4 June 2009 to the Cour de Cassation which, finding that interpretation of Articles 1 to 3 of Directive 98/59 was necessary to enable it to give judgment in the cases of which it is seised, stayed the proceedings and referred to the Court the following questions for a preliminary ruling, which are worded identically in each of the three cases:
‘(1) Are Articles 1, 2 and 3 of Directive 98/59 … to be interpreted as applying to a termination of activities as a result of a declaration that the employer is insolvent or a judicial decision ordering the dissolution and winding up, on grounds of insolvency, of the credit institution which is the employer on the basis of Article 61(1)(a) and (b) of the Law … of 5 April 1993 relating to the financial sector, [as amended by the Law of 19 March 2004], in respect of which termination national legislation provides for the termination of employment contracts with immediate effect?
(2) If the answer to the first question is in the affirmative, are Articles 1, 2 and 3 of Directive 98/59 to be interpreted as meaning that the administrator or liquidator is deemed to be in the same position as an employer who is contemplating collective redundancies and who is able to carry out, to that end, the acts referred to in Articles 2 and 3 of [that] directive and of effecting such redundancies (Case C-323/08 Rodríguez Mayor and Others [2009] ECR I-11621, paragraphs 39, 40 and 41)?’
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62. Furthermore, the precise prohibition laid down by Clause 4(1) of the framework agreement does not require the adoption of any further measure of the Community institutions (see, by analogy, Case 41/74 van Duyn [1974] ECR 1337, paragraph 6). Besides, the provision under consideration does not in any way confer on Member States the right, when transposing it into domestic law, to limit the scope of the prohibition laid down in respect of employment conditions (see, by analogy, Marshall , paragraph 55).
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868,432 |
41. In that regard, it should be noted from the outset that the principle of non‑discrimination is a general principle of European Union law and, in the field of agriculture, is embodied in the second subparagraph of Article 40(2) TFEU (see, to that effect, Case C‑535/03 Unitymark and North Sea Fishermen’s Organisation [2006] ECR I‑2689, paragraph 53, and Case C‑453/08 Karanikolas and Others [2010] ECR I‑7895, paragraph 49).
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50. In this respect, the Court held, in paragraph 29 of the judgment in Gambazzi , that fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be subject to restrictions. Such restrictions must, however, in fact correspond to the objectives of public interest pursued by the measure in question and must not constitute, with regard to the aim pursued, a disproportionate interference with the rights thus guaranteed.
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868,433 |
44. That analysis was followed in other cases relating to German care insurance (see Joined Cases C‑502/01 and C‑31/02 Gaumain-Cerri and Barth [2004] ECR I‑6483, paragraphs 19 to 23, 25 and 26, and Case C‑208/07 von Chamier-Glisczinski [2009] ECR I‑6095, paragraph 40).
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12. The City of Braunschweig, also in Lower Saxony, and Braunschweigsche Kohlebergwerke (hereinafter "BKB" ) concluded a contract under which BKB was made responsible for residual waste disposal by thermal processing for a period of 30 years from June/July 1999.
| 0 |
868,434 |
60. Article 9 of Directive 98/5, although it does not preclude appeal proceedings being brought before a body which is not a court or tribunal, does not provide that a legal remedy may be open to the person concerned only after all other remedies have been exhausted. In any event, where an appeal before a non-judicial body is provided for by national law, Article 9 requires actual access within a reasonable period (see, by way of analogy, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 180 to 205, 223 and 234) to a court or tribunal as defined by Community law, which is competent to give a ruling on both fact and law.
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40
It should be pointed out that the Court may, at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, under Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice (judgment in Nordzucker, C‑148/14, EU:C:2015:287, paragraph 24).
| 0 |
868,435 |
88. However, the Court has held that such a restriction can be justified in the light of EU law if it is based on objective considerations of public interest independent of the nationality of the persons concerned and if it is proportionate to the legitimate objective pursued by the provisions of national law (see De Cuyper, paragraph 40; Tas-Hagen and Tas , paragraph 33; and Morgan and Bucher , paragraph 33).
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82. La directive 1999/31 définit les critères et les conditions de l’obligation de mise en décharge des déchets et impose notamment aux États membres d’exiger l’obtention d’une autorisation pour l’exploitation d’une décharge.
| 0 |
868,436 |
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).
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74. In that regard, it is necessary, however, to point out that, as is clear from the case‑law cited in paragraph 34 above, it is not possible to determine the legal basis for a measure in the light of the legal basis used for the adoption of other Community measures which might, in certain cases, display similar characteristics.
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118 Although the compensation system is indeed based on the principle of financial neutrality in that the levies collected must be equivalent to the reimbursement paid, as is evident from Article 6(2) of Regulation No 1358/77 and the case-law of the Court of Justice (see Case 121/83 Zuckerfabrik Franken v Hauptzollamt Würzburg [1984] ECR 2039, paragraph 26), that balance must be achieved at Community level and not at the level of the Member State or the undertaking concerned as the Advocate General has indicated at points 138 and 140 of his Opinion.
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26 IT MUST BE EMPHASIZED , MOREOVER , THAT FINANCIAL NEUTRALITY - THE PRINCIPLE ON WHICH THE SYSTEM FOR OFFSETTING STORAGE COSTS IS BASED - IS ACHIEVED PRECISELY BY THE FACT THAT STORAGE COSTS ARE REIMBURSED ONLY IN RESPECT OF PRODUCTS ON WHICH A LEVY MAY BE COLLECTED FOLLOWING THEIR DISPOSAL AND , CONVERSELY , BY THE FACT THAT A LEVY IS COLLECTED ONLY IN RESPECT OF PRODUCTS WHICH ARE CAPABLE OF QUALIFYING FOR THE REIMBURSEMENT OF STORAGE COSTS , WITHOUT THERE BEING ANY NEED FOR SUCH A REIMBURSEMENT ACTUALLY TO BE MADE IN RESPECT OF THE PRODUCT IN QUESTION . THAT PRINCIPLE IS COMPLIED WITH WHERE THE PRODUCTS SUBJECT TO THE LEVY ARE CAPABLE OF QUALIFYING FOR REIMBURSEMENT OF STORAGE COSTS AT ANY MANUFACTURING STAGE ; SUCH A STAGE MAY BE DIFFERENT FROM THAT AT WHICH THE LEVY IS COLLECTED .
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67
However, it is only in circumstances where the action for annulment would unquestionably have been admissible that the Court has held that a person may not plead the invalidity of an act of the European Union before a national court (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 17 to 25; of 30 January 1997, Wiljo, C‑178/95, EU:C:1997:46, paragraphs 15 to 25; of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 29 to 40; and of 22 October 2002, National Farmers’ Union, C‑241/01, EU:C:2002:604, paragraphs 34 to 39). In numerous other cases, the Court has held that it was not established that the action would unquestionably have been admissible (see, inter alia, to that effect, judgments of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraphs 30 to 34; of 8 March 2007, Roquette Frères, C‑441/05, EU:C:2007:150, paragraphs 35 to 48; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 37 to 52; of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 24 to 38; and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraphs 27 to 32).
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29. First of all, as the Court held in paragraph 45 of Seeling , Article 13(B)(b) of the Sixth Directive cannot be applied by analogy by equating a benefit in kind, evaluated for the calculation of income tax, with rent, as suggested by the Belgian Government.
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30
The non-application of the principle of equal treatment to the Union’s relations with third countries is confirmed by the manner in which the Court has given effect to the principle, enshrined in the case-law, referred to in paragraph 26 of this judgment. Accordingly, in the judgment of 28 October 1982, Faust v Commission (52/81, EU:C:1982:369, paragraph 25) the Court confined itself to finding that the difference in treatment of certain imports was due to a difference in treatment of third countries, in order to conclude that that difference in treatment was not contrary to EU law. Likewise, the Court has held that different treatment of traders marketing goods from third countries, which was the automatic consequence of a difference in treatment of third countries, was not contrary to the general principle of equal treatment (see judgments of 10 March 1998, Germany v Council, C‑122/95, EU:C:1998:94, paragraphs 56 to 58, and of 10 March 1998, T. Port, C‑364/95 and C‑365/95, EU:C:1998:95, paragraphs 76 and 77).
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23. Tel est le cas dès lors que les dispositions du droit de l’Union en cause ont été rendues applicables de manière directe et inconditionnelle, par le droit national, à de telles situations (voir, en ce sens, arrêts précités Cicala, point 19, et Nolan, point 47).
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57. Such considerations are even more relevant where the Commission orders, as in the present case, the recovery of the aid from the beneficiary, since the very aim of such reimbursement is to eliminate the distortion of competition brought about by a certain competitive advantage and, thus, to re-establish the status quo before the aid was granted (see, to that effect, inter alia Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia v Commission [2003] ECR I‑4035, paragraph 66, and Case C‑277/00 Germany v Commission [2004] ECR I‑3925, paragraphs 74 to 76).
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14 IL Y A DONC LIEU DE REPONDRE AUX PREMIERE ET DEUXIEME QUESTIONS QU' UNE IMPOSITION DENOMMEE IMPOT DE CONSOMMATION, FRAPPANT TANT LES PRODUITS IMPORTES QUE LES PRODUITS NATIONAUX, MAIS QUI, EN FAIT, S' APPLIQUE PRESQUE EXCLUSIVEMENT AUX PRODUITS IMPORTES PARCE QU' IL EXISTE UNE PRODUCTION NATIONALE EXTREMEMENT REDUITE, NE CONSTITUE PAS UNE TAXE D' EFFET EQUIVALANT A UN DROIT DE DOUANE A L' IMPORTATION AU SENS DES ARTICLES 9 ET 12 DU TRAITE CEE SI ELLE S' INTEGRE DANS UN SYSTEME GENERAL DE REDEVANCES INTERIEURES APPREHENDANT SYSTEMATIQUEMENT DES CATEGORIES DE PRODUITS SELON DES CRITERES OBJECTIFS APPLIQUES INDEPENDAMMENT DE L' ORIGINE DES PRODUITS . ELLE REVET DES LORS LE CARACTERE D' UNE IMPOSITION INTERIEURE AU SENS DE L' ARTICLE*95 .
SUR LA TROISIEME QUESTION
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47. Similarly, Article 167 of Directive 2006/112 provides that a right of deduction is to arise at the time the deductible tax becomes chargeable, which is the case, under Article 63, once the transaction has been carried out, regardless whether payment of the consideration due for that transaction has been made. Furthermore, it is expressly stated in Article 168(a) of that directive that the right to deduct input tax which the taxable person enjoys relates not only to the VAT paid but also to the VAT due. It is also apparent from the wording of Article 179 of that directive that the right to deduct is to be exercised, as a rule, by subtracting from the amount of VAT due for a given tax period the amount of VAT in respect of which, during the same period, the right of deduction has arisen (see, to that effect, Joined Cases C‑95/07 and C‑96/07 Ecotrade [2008] ECR I‑3457, paragraph 41).
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78 For one thing, it seeks to achieve the aim of ensuring that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned.
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26. However, neither the Statute of the Court of Justice of the European Union nor its Rules of Procedure make provision for the parties to submit observations in response to the Advocate General’s Opinion (see Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 32).
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68. Third, as has been recalled in paragraph 58 of this judgment, extension of detention may, under Article 15(6) of Directive 2008/115, be ordered only if the removal operation is likely to last longer owing either to a lack of cooperation by the third-country national concerned or to delays in obtaining the necessary documentation from third countries, no mention being made of the fact that the person concerned has no identity documents.
| 0 |
868,443 |
27 If an examination of all similar contracts reveals that it is difficult to gain access to the relevant market, it is necessary to assess the extent to which the contracts entered into by the supplier concerned contribute to the cumulative effect produced by the totality of the agreements. Under the Community rules on competition, responsibility for such an effect of closing off the market must be attributed to the suppliers who make an appreciable contribution thereto. Contracts entered into by suppliers whose contribution to the cumulative effect is insignificant do not therefore fall under the prohibition laid down in Article 85(1). In order to assess the extent of the contribution of the contracts concluded by a supplier to the cumulative sealing-off effect, the market position of the contracting parties must be taken into consideration. That contribution also depends on the duration of the agreements. If the duration is manifestly excessive in relation to the average duration of contracts generally concluded on the relevant market, the individual contract falls under the prohibition laid down in Article 85(1) (Delimitis, paragraphs 24 to 26).
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96 THIS SUBMISSION MUST THEREFORE BE REJECTED .
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23. The Court also observed that, regarding the place of performance of the obligations arising from contracts for the sale of goods, the regulation, in the first indent of Article 5(1)(b), defines that criterion of a link autonomously, in order to reinforce the objectives of unification of the rules of jurisdiction and predictability. Accordingly, in such cases the place of delivery of the goods is established as the autonomous linking factor to apply to all claims founded on one and the same contract of sale ( Color Drack , paragraphs 24 and 26; Rehder , paragraph 33; and Car Trim , paragraphs 49 and 50).
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76. Where the company vehicle is intended to be used essentially in Denmark on a permanent basis or where it is in fact used in that manner, the situation is comparable to that at issue in Cura Anlagen .
| 0 |
868,445 |
39 Nevertheless, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Bosman, paragraph 61; Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20; Case C-322/98 Kachelmann [2000] ECR I-7505, paragraph 17).
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57. Far from prohibiting the production and marketing of alcoholic beverages, the legislation at issue merely controls, in a very clearly defined area, the associated labelling and advertising.
| 0 |
868,446 |
39. Thus, the Court has already held that a member of a board of directors of a capital company who, in return for remuneration, provides services to the company which has appointed him and of which he is an integral part, who carries out his activities under the direction or supervision of another body of that company and who can, at any time, be removed from his duties without such removal being subject to any restriction, satisfies, prima facie, the criteria for being treated as a ‘worker’ within the meaning of EU law (see, to that effect, judgment in Danosa , C‑232/09, EU:C:2010:674, paragraphs 51 and 56).
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75. Les notions de «plan» et de «projet», figurant à ladite disposition, n’étant pas définies par la directive «habitats», il y a lieu de tenir compte de la définition donnée à l’article 1 er , paragraphe 2, de la directive 85/337, selon laquelle la réalisation de travaux de construction ou d’autres installations ou ouvrages ainsi que d’autres interventions dans le milieu naturel constituent des «projets». Une telle définition doit être regardée comme visant une décharge de déchets, dont l’autorisation d’exploitation a expiré, lorsque l’état de saturation et les dysfonctionnements de cette décharge affectent un site Natura 2000 et que de nouvelles cellules y sont créées (voir, par analogie, arrêt Waddenvereniging et Vogelbeschermingsvereniging, EU:C:2004:482, points 23 à 29).
| 0 |
868,447 |
66. Various factors, set out in paragraphs 291 to 327 of the Kadi judgment, were advanced in support of the position stated by the Court in that judgment, and there has been no change in those factors which could justify reconsideration of that position, those factors being, essentially, bound up with the constitutional guarantee which is exercised, in a Union based on the rule of law (see Case C‑550/09 E and F [2010] ECR I‑6213, paragraph 44, and the judgment of 26 June 2012 in Case C‑335/09 P Poland v Commission [2012] ECR I‑0000, paragraph 48), by judicial review of the lawfulness of all European Union measures, including those which, as in the present case, implement an international law measure, in the light of the fundamental rights guaranteed by the European Union.
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46
While the data on air quality for 2014 amount to events which took place after the reasoned opinion of 11 July 2014, those events are of the same kind as those to which the opinion referred and constitute the same conduct.
| 0 |
868,448 |
42 Such legislation thus clearly differs from the provisions at issue in Dafeki, cited above, which accorded to documents and certificates of civil status emanating from the competent authorities of other States a lower probative value than that accorded to documents and certificates drawn up by the German authorities (see paragraphs 5 and 12 of that judgment).
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33. Consequently, an applicant for a resident permit cannot derive from Article 41(2)(a) of the Charter a right to be heard in all proceedings relating to his application (the judgment in Mukarubega , EU:C:2014:2336, paragraph 44).
| 0 |
868,449 |
92. It should be added in this regard that faithful transposition is particularly important in the case of the Directive where management of the common heritage is entrusted to the Member States in their respective territories (see Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9, and Case C-38/99 Commission v France [2000] ECR I‑10941, paragraph 53).
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45. Article 78(1) of the Customs Code provides that the customs authorities ‘may’, on their own initiative or at the request of the declarant, amend the declaration, that is to say re-examine it.
| 0 |
868,450 |
64. In accordance with its settled case-law, the Court may examine of its own motion whether the conditions imposed by Article 226 EC for the bringing of an action for failure to fulfil obligations are satisfied (Case C-199/04 Commission v United Kingdom [2007] ECR I-0000, paragraph 20, and the case-law cited).
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34 It is undisputed that the use of mopeds on a beach used for breeding by the Caretta caretta turtle is, particularly owing to the noise pollution, liable to disturb that species during the laying period, the incubation period and the hatching of the eggs, as well as during the baby turtles' migration to the sea. It is also established that the presence of small boats near the breeding beaches constitutes a source of danger to the life and physical well-being of the turtles.
| 0 |
868,451 |
24
It is settled case-law of the Court that Article 49 TFEU requires the abolition of restrictions of freedom of establishment. Even though, according to their wording, the provisions of the FEU Treaty on freedom of establishment are aimed at ensuring that foreign nationals are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation (judgment of 8 March 2017, Euro Park Service, C‑14/16, EU:C:2017:177, paragraph 58 and the case-law cited).
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42. Ces mesures ne doivent cependant pas aller au-delà de ce qui est nécessaire pour atteindre l’objectif poursuivi (arrêt du 12 juillet 2012, EMS-Bulgaria Transport, C‑284/11, point 67 et jurisprudence citée). Or, tel serait précisément le cas de la règle en cause au principal s’il s’avérait que celle-ci conduit à une situation dans laquelle la TVA grève le fournisseur et n’est donc pas perçue d’une manière qui soit compatible avec le principe de base du système de la TVA, tel que rappelé au point 34 du présent arrêt.
| 0 |
868,452 |
82
In that connection, the contracting authority is justified in expressly setting out, in principle in the tender notice or the tender specifications, the requirement to provide evidence of specific capacities and practical arrangements by which the candidate/tenderer must demonstrate its suitability to be awarded and perform the contract concerned. Likewise, it is conceivable that, in specific circumstances, having regard to the nature of the works concerned and the subject matter and purpose of the contract, the contracting authority may lay down limits, in particular regarding the use of a limited number of economic operators, pursuant to Article 44(2) of Directive 2004/18 (see, to that effect, judgments of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraphs 39 to 41, and of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 90 and the case-law cited).
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46. It is therefore necessary to interpret that exclusion as covering, as the Advocate General has stated in point 28 of his Opinion, not only any physical act of moving persons or goods from one place to another by means of a vehicle, aircraft or waterborne vessel, but also any service inherently linked to such an act.
| 0 |
868,453 |
51. Il importe, dans chaque cas d’espèce, de déterminer la nature de la disposition prévue par une directive, sur laquelle porte le recours en manquement, en vue de mesurer l’étendue de l’obligation de transposition incombant aux États membres (voir, notamment, arrêt du 20 octobre 2005, Commission/Royaume-Uni, C-6/04, Rec. p. I-9017, point 22). Il convient à cet égard, ainsi qu’il découle du point 21 du présent arrêt, d’examiner les dispositions de la directive 2007/46 qui constituent des «modifications de fond» au sens de l’article 48 de cette directive.
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34. Justifying that request, the referring court stated that, having been stopped in the Netherlands, in the frontier area with Germany, Mr Adil was in custody and the answer to the questions referred was relevant for the purposes of ruling on his detention. It also stated that a number of cases concerning similar acts of detention are pending before various Netherlands courts.
| 0 |
868,454 |
44 Moreover, where, instead of disallowing all the expenditure affected by the infringement, the Commission has endeavoured to establish rules for treating irregularities differently, depending on the extent of the shortcomings in the checks and the degree of risk to the EAGGF, it is for the Member State to show that those criteria are arbitrary and unfair (see, to that effect, Case C-28/94 Netherlands v Commission [1999] ECR I-1973, paragraph 56).
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43. With regard, in the first place, to the characteristics of the remedy that must be made available to challenge a return decision such as the decision at issue before the referring court, it is apparent from Article 13(1) of Directive 2008/115, taken in conjunction with Article 12(1) of that directive, that a third country national must be afforded an effective remedy to appeal against or seek review of a decision ordering his return.
| 0 |
868,455 |
46. According to case-law, that right of access to education implies that the child of a migrant worker or former migrant worker has an independent right of residence when that child wishes to continue his or her education in the host Member State, and that the parent who is the child’s primary carer has a corresponding right of residence (see Case C-480/08 Teixeira [2010] ECR I-1107, paragraphs 36 and 53).
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39. Furthermore, Directives 77/780, 89/299 and 89/646 impose on the national authorities a number of supervisory obligations vis-à-vis credit institutions.
| 0 |
868,456 |
35. According to Article 2 of the Sixth Directive concerning taxable transactions, together with the importation of goods, the supply of goods or services effected for consideration within the country is subject to VAT. Furthermore, under Article 4(1) of the Sixth Directive, ‘taxable person’ means any person who independently carries out an economic activity, whatever the purpose or results of that activity (see, inter alia, Case 235/85 Commission v Netherlands [1987] ECR 1471, paragraph 6; Case C‑260/98 Commission v Greece [2000] ECR I‑6537, paragraph 24; and Isle of Wight Council and Others , paragraphs 26 and 27).
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79
Thus, in the absence of any other relevant information, the statements of reasons relating to the third to eighth implementing regulations at issue do not refer to anything that might justify the Council’s assessment that, notwithstanding that military defeat, the likely intention of the LTTE was to continue terrorist attacks in Sri Lanka. In view of the fact that that military defeat represented a significant change in circumstances, one that was capable of calling in question the ongoing nature of the risk of the LTTE’s involvement in terrorist activities, the Council should have referred to the evidence supporting that assessment in those statements of reasons. Consequently, the third to eighth implementing regulations at issue are vitiated by a failure to give sufficient reasons that is capable of leading to their annulment.
| 0 |
868,457 |
32. In this connection, it must be recalled that those criteria, such as the expectations of a typical consumer, to which the Commission refers, are intended to protect the functioning of the VAT system in the light of the diversity of commercial operations. However, the Court itself has acknowledged that it is impossible to give exhaustive guidance on that issue ( CPP , paragraph 27) and pointed out that it is necessary to take into account all the circumstances in which the transaction at issue takes place ( CPP , paragraph 28; Levob Verzekeringen and OV Bank , paragraph 19, and Case C‑425/06 Part Service [2008] ECR I‑897, paragraph 54).
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61. It is settled case-law that restrictions on freedom of establishment which are applicable without discrimination on grounds of nationality may be justified by overriding reasons relating to the general interest, provided that the restrictions are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining that objective ( Hartlauer , paragraph 44, and Apothekerkammer des Saarlandes and Others , paragraph 25).
| 0 |
868,458 |
50. Moreover, the Court has held previously that maintenance aid for studies constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 (see Case 39/86 Lair [1988] ECR 3161, paragraphs 23 and 24, and Bernini , paragraph 23).
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23 It must now be considered whether or not a grant such as that at issue in the present case is covered by the concept of social advantage as interpreted above . It should be pointed out that such assistance, awarded for the student' s maintenance and training, is particularly appropriate from a worker' s point of view for improving his professional qualifications and promoting his social advancement . Moreover, the grant and the repayment of the benefits received are linked in national law to the beneficiary' s means, and are thus dependent on social criteria .
| 1 |
868,459 |
17 It follows from that provision that the definition of the working population is very broad, since it covers any worker, including persons who are merely seeking employment. In contrast, according to the Court' s case-law, the directive does not apply to persons who have never been available for employment or who have ceased to be available for a reason other than the materialization of one of the risks referred to by the directive (Joined Cases 48/88, 106/88 and 107/88 Achterberg-te Riele and Others v Sociale Verzekeringsbank [1989] ECR 1963, paragraph 11).
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39. In the first place, the Framework Decision itself ensures that decisions relating to European arrest warrants are attended by all the guarantees appropriate for decisions of such a kind.
| 0 |
868,460 |
25. Further, it should also be borne in mind that according to settled case-law the exemptions provided for by Article 13 of the Sixth Directive have their own independent meaning in Community law and that they must therefore be given a Community definition (see Case C-358/97 Commission v Ireland [2000] ECR I-6301, paragraph 51).
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59. On the contrary, it follows from the very wording of the latter provision that the procedure laid down must be applied before a Member State agrees to the carrying out of plans or projects likely to affect the site concerned.
| 0 |
868,461 |
63. However, the broad margin of discretion which the Member States enjoy in matters of social policy may not have the effect of frustrating the implementation of a fundamental principle of Community law such as that of equal treatment for men and women (see Seymour-Smith and Perez , paragraph 75, and Kutz-Bauer , paragraph 57).
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24. The application lodged by the Commission, according to which it essentially alleges that the Italian Republic has not adopted any measure necessary for transposing the Directive, contains a clear statement of this complaint and of the legal and factual particulars on which it is based.
| 0 |
868,462 |
58. As has been recalled in paragraph 40 of this judgment, the importance of rights of access, which are essential for the protection of the right of a child to maintain a personal relationship and direct contact with both his or her parents, which is laid down in Article 24(3) of the Charter, prompted the EU legislature to provide for a specific scheme in order to facilitate enforcement of judgments concerning rights of access. That scheme is based on the principle of mutual trust between Member States in the fact that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at EU level, in particular, in the Charter (judgment in Aguirre Zarraga , C–491/10 PPU, EU:C:2010:828, paragraph 70), and precludes any review of the judgment given by the court of the State of origin.
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44. Toutefois, la jurisprudence de l’Union qui porte sur des restrictions à l’exercice des libertés de circulation au sein de l’Union ne saurait être intégralement transposée aux libertés garanties par l’accord EEE, dès lors que l’exercice de ces dernières s’inscrit dans un contexte juridique différent (voir, en ce sens, arrêt du 19 juillet 2012, A, C‑48/11, non encore publié au Recueil, point 34).
| 0 |
868,463 |
28
It is apparent from that case-law, first, that the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, must be interpreted autonomously in order to ensure that that concept is applied uniformly in all Member States and, secondly, that, in order to come within the scope of that concept, the claimant’s action must place in issue a legal obligation freely consented to by one person towards another (see, to that effect, judgments of 14 March 2013, Česká spořitelna, C‑419/11, EU:C:2013:165, paragraphs 45 to 47, and of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraphs 37 and 39).
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8 ON THE OTHER HAND SINCE THE TREATY CONTAINS NO PRECISE DEFINITION OF AGRICULTURE AND STILL LESS OF AGRICULTURAL HOLDING , IT IS FOR THE COMMUNITY INSTITUTIONS TO WORK OUT , WHERE APPROPRIATE , FOR THE PURPOSES OF THE RULES DERIVING FROM THE TREATY SUCH A DEFINITION OF AGRICULTURAL HOLDING .
| 0 |
868,464 |
52. Whilst it is true that a Member State which, like the Federal Republic of Germany, retains such provisions in its national legislation does not infringe the Sixth Directive (see, to that effect, Idéal tourisme , paragraph 38), the fact remains that the taxation allowed by Article 28(3)(a) of the directive is not harmonised taxation that is an integral part of the VAT regime as arranged by the Sixth Directive for certain activities in the public interest, but taxation authorised only for a transitional period (see, to that effect, Case C-169/00 Commission v Finland [2002] ECR I-2433, paragraph 34). The objective of Article 28(4) of the Sixth Directive is the abolition of such derogating and transitional arrangements (see, to that effect, Case C-136/97 Norbury Developments [1999] ECR I-2491, paragraph 20, and Idéal tourisme , paragraph 32).
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44. Secondly, such a requirement would run counter to the objectives of the Community legislature, which has recognised the importance of ensuring protection for the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty (Case C-60/00 Carpenter [2002] ECR I‑6279, paragraph 38, and Case C-459/99 MRAX [2002] ECR I-6591, paragraph 53).
| 0 |
868,465 |
41. It is clear that Directive 98/34 is designed to protect, by means of preventive monitoring, the free movement of goods, which is one of the foundations of the European Union, and that this control serves a useful purpose in that technical regulations falling within the scope of that directive may constitute obstacles to trade in goods between Member States, such obstacles being permissible only if they are necessary to satisfy compelling requirements relating to the public interest (see judgment in Fortuna and Others , EU:C:2012:495, paragraph 26 and the case-law cited).
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26THE ALLEGATION OF THE COUNCIL AND THE INTERVENER THAT ONLY IMPLEMENTING MEASURES ADOPTED BY THE NATIONAL AUTHORITIES ARE OF DIRECT CONCERN TO THE IMPORTERS AND THAT THESE IMPORTERS SHOULD THEREFORE , WHERE APPROPRIATE , BRING THE MATTER BEFORE THE NATIONAL COURTS HAVING JURISDICTION DISREGARDS THE FACT THAT SUCH IMPLEMENTATION IS PURELY AUTOMATIC AND , MOREOVER , IN PURSUANCE NOT OF INTERMEDIATE NATIONAL RULES BUT OF COMMUNITY RULES ALONE .
| 0 |
868,466 |
35. In that regard, it is settled case-law that, for the purposes of the application of the provisions of European Union competition law, an undertaking is any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (see, inter alia, Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21, and Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637, paragraph 17). It is clear from established case-law that any activity consisting in offering goods and services on a given market is an economic activity (see Case C-82/01 P Aéroports de Paris v Commission [2002] ECR I-9297, paragraph 79; Case C-49/07 MOTOE [2008] ECR I-4863, paragraph 22; and Case C-437/09 AG2R Prévoyance [2011] ECR I-973, paragraph 42). Thus, the State itself or a State entity may act as an undertaking (see, to that effect, Case 41/83 Italy v Commission [1985] ECR 873, paragraphs 16 to 20).
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19AN OPPORTUNITY FOR PROMOTION IS OPEN TO THE APPLICANTS , SINCE THEY ARE COVERED BY THE TERMS OF THE ' ' GENERAL PROVISIONS TO GIVE EFFECT TO THE PROCEDURE FOR PROMOTING STAFF PAID FROM RESEARCH APPROPRIATIONS ' ' ( ADMINISTRATIVE NOTICES NO 197 OF 28 APRIL 1978 ) WHICH APPLY TO ' ' TEMPORARY STAFF HOLDING CONTRACTS ' ' .
| 0 |
868,467 |
27. The Court has already had the opportunity to determine, in the case which gave rise to the judgment in Österreichischer Rundfunk , whether the Bundeskommunikationssenat is a court or tribunal for the purposes of Article 234 EC. In that regard, it held, in paragraphs 19 to 21 of its judgment, that, on the basis of the provisions relating to the establishment and functioning of the Bundeskommunikationssenat, applicable in that case, that body had to be considered to be a court or tribunal for the purposes of Article 234 EC.
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133. Nevertheless, such a risk depends on a number of factors, such as the degree of similarity between the arguments put forward in the two cases. If the Commission’s pleadings are repeated only in part, partial disclosure could be sufficient to prevent any risk of undermining the pending proceedings.
| 0 |
868,468 |
59
When national courts apply domestic law they are therefore bound to interpret it, so far as possible, in the light of the wording and the purpose of the framework decision concerned in order to achieve the result sought by it. This obligation to interpret national law in conformity with EU law is inherent in the system of the FEU Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they rule on the disputes before them (see judgment of 5 September 2012, Lopes Da Silva Jorge, C‑42/11, EU:C:2012:517, paragraph 54 and the case-law cited).
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55. Furthermore, that scheme applies the amount of the VAT due to the price of the products at the final consumption stage, in accordance with the requirements of Article 27(1) of the Sixth Directive.
| 0 |
868,469 |
25. It follows from Article 38(1)(c) of the Rules of Procedure of the Court of Justice and from the case-law relating to that provision that the application initiating proceedings must state the subject-matter of the dispute and a summary of the pleas in law on which the application is based and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on a claim (see, inter alia, Case C‑343/08 Commission v Czech Republic [2010] ECR I‑0000, paragraph 26).
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26. It is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice and from the case-law relating to that provision that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on an objection (Case C‑195/04 Commission v Finland [2007] ECR I‑3351, paragraph 22 and the case‑law cited, and Case C‑412/04 Commission v Italy [2008] ECR I‑619, paragraph 103).
| 1 |
868,470 |
36. Par ailleurs, selon la jurisprudence de la Cour, il incombe à la Commission, dans le cadre d’une telle procédure, de fournir à la Cour les éléments nécessaires pour déterminer l’état d’exécution par un État membre d’un arrêt en manquement. Dès lors que la Commission a fourni suffisamment d’éléments faisant apparaître la persistance du manquement, il appartient à l’État membre concerné de contester cette affirmation de manière substantielle et détaillée, ainsi que d’apporter la preuve de la cessation de l’infraction (voir arrêt Commission/Grèce, C‑369/07, EU:C:2009:428, points 74 et 75 ainsi que jurisprudence citée).
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21IN ORDER TO DETERMINE WHETHER ROCHE HAS THE DOMINANT POSITION AS ALLEGED , IT IS NECESSARY TO DELIMIT THE RELEVANT MARKETS BOTH FROM THE GEOGRAPHICAL STANDPOINT AND FROM THE STANDPOINT OF THE PRODUCT .
| 0 |
868,471 |
51. However, according to settled case-law, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Articles 168(1)(d) and 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 34, and Case C‑240/03 P Comunità montana della Valnerina v Commission [2006] ECR I‑731, paragraph 105 and the case-law cited).
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72 Moreover, prices below average total costs, that is to say, fixed costs plus variable costs, but above average variable costs, must be regarded as abusive if they are determined as part of a plan for eliminating a competitor. Such prices can drive from the market undertakings which are perhaps as efficient as the dominant undertaking but which, because of their smaller financial resources, are incapable of withstanding the competition waged against them.
| 0 |
868,472 |
30. According to the settled case-law of the Court, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see judgments in Adidas , C‑223/98, EU:C:1999:500, paragraph 23; SGAE , C‑306/05, EU:C:2006:764, paragraph 34; and Hoštická and Others , C‑561/13, EU:C:2014:2287, paragraph 29).
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86. Nevertheless, as the Advocate General indicated in point 158 of her Opinion, the Kingdom of the Netherlands would have needed at least to show why it opted for the ‘three out of six years’ rule, to the exclusion of all other representative elements. It should be pointed out in that regard that the rule is too exclusive. By requiring specific periods of residence in the territory of the Member State concerned, the ‘three out of six years’ rule prioritises an element which is not necessarily the sole element representative of the actual degree of attachment between the party concerned and that Member State.
| 0 |
868,473 |
72. It must be stated in that connection, on the one hand, that administrative checks and on-the-spot checks were designed by the Community legislature as two means of verification which, although separate, complement each other (see Case C-41/94 Germany v Commission , paragraph 43, and Case C‑468/02 Spain v Commission , paragraph 39). On the other hand, such administrative checks preceding on-the-spot checks must be carried out in such a way as to enable the national authorities to draw all the possible conclusions, be they matters of certainty or of doubt, regarding compliance with the conditions for granting aid and premiums (see Case C-41/94 Germany v Commission , paragraph 17 and Case C‑468/02 Spain v Commission , paragraph 40).
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39. Tout d’abord, il convient de rappeler que les articles 19 à 21 de la directive 92/83, lus en combinaison avec l’article 3 de la directive 92/84, règlent les taux minimaux d’accise sur l’alcool éthylique. Toutefois, une exception a été prévue à l’article 22, paragraphe 7, de la directive 92/83 pour la Hongrie, la République slovaque et la Roumanie.
| 0 |
868,474 |
77. While the Commission’s suggestions are a useful point of reference, they cannot in any event bind the Court. Similarly, while guidelines such as those in the notices of the Commission help to ensure that the Commission acts in a manner which is transparent, foreseeable and consistent with legal certainty, they do not bind the Court (see, to that effect, Case C-109/08 Commission v Greece [2009] ECR I‑4657, paragraph 27 and the case‑law cited).
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16 Regulation No 543/69 must therefore be regarded as not precluding the application of national provisions penalizing an employer whose drivers have infringed Articles 7(2 ) and 11 of the regulation, even though that infringement cannot be imputed to an intentional wrongful act or to negligence on the employer' s part .
| 0 |
868,475 |
62. Consequently, as stated by Advocate General Geelhoed in point 32 of his Opinion, only remuneration the amount of which is calculated on the basis of the cost of the service rendered can be qualified as ‘duties paid by way of fees or dues’ within the meaning of Article 12(1)(e) of Directive 69/335. By contrast, where the amount payable is wholly unrelated to the cost of the service in question or is calculated, not by reference to the costs of the transaction for which it constitutes the consideration, but to all the operating and capital costs incurred by the administrative body, it must be regarded as a tax falling exclusively within the prohibition laid down in Articles 10 and 11 of that directive (see, to that effect, Ponente Carni and Cispadana Costruzioni , paragraphs 41 and 42, and the order in Gründerzentrum , paragraph 31).
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81
At the outset, it should be borne in mind that it is not for the Court, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law (see, inter alia, judgment of 22 November 2012 in E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 125).
| 0 |
868,476 |
60. It is true that the concepts used in Directives 2001/29 and 2009/24 must in principle have the same meaning (see Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others [2011] ECR I-9083, paragraphs 187 and 188). However, even supposing that Article 4(2) of Directive 2001/29, interpreted in the light of recitals 28 and 29 in its preamble and in the light of the Copyright Treaty, which Directive 2001/29 aims to implement (judgment of 9 February 2012 in Case C-277/10 Luksan , paragraph 59), indicated that, for the works covered by that directive, the exhaustion of the distribution right concerned only tangible objects, that would not be capable of affecting the interpretation of Article 4(2) of Directive 2009/24, having regard to the different intention expressed by the European Union legislature in the specific context of that directive.
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25
It is apparent from established case-law relating to consumer protection, that, in general, it is necessary in that field to take account of the presumed expectation of the average consumer, who is reasonably well informed and reasonably observant and circumspect (see, inter alia, judgments in Mars, C‑470/93, EU:C:1995:224, paragraph 24; Gut Springenheide and Tusky, C‑210/96, EU:C:1998:369, paragraph 31; Estée Lauder, C‑220/98, EU:C:2000:8, paragraph 30; Lidl Belgium, C‑356/04, EU:C:2006:585, paragraph 78; Severi, C‑446/07, EU:C:2009:530, paragraph 61; Lidl, C‑159/09, EU:C:2010:696, paragraph 47; and Teekanne, C‑195/14, EU:C:2015:361, paragraph 36).
| 0 |
868,477 |
53. So far as concerns the plea of inadmissibility put forward by the Parliament relating to the third part of the second ground of appeal in its entirety, it is apparent from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Articles 168(1)(d) and 169(2) of the Rules of Procedure that an appeal must identify precisely the contested points in the grounds of the judgment which the appellant seeks to have set aside and indicate precisely the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned is inadmissible (see, to this effect, judgments in Schindler Holding and Others v Commission , C‑501/11 P, EU:C:2013:522, paragraph 43, and Ezz and Others v Council , C‑220/14 P, EU:C:2015:147, paragraph 111 and the case-law cited).
|
38 Since the directive provides no specific definition of "modifications to development projects", the expression must be interpreted in the light of the general scheme and purpose of the directive.
| 0 |
868,478 |
20. While the Court has stressed the importance of the period of the letting in those judgments, it has done so in order to distinguish a transaction comprising the letting of immovable property, which is usually a relatively passive activity linked simply to the passage of time and not generating any significant added value (see, to that effect, Goed Wonen , paragraph 52), from other activities which are either industrial and commercial in nature, such as the exemptions referred to in Article 13B(b)(1) to (4) of the Sixth Directive, or have as their subject‑matter something which is best understood as the provision of a service rather than simply the making available of property, such as the right to use a golf course ( Stockholm Lindöpark , paragraphs 24 to 27), the right to use a bridge in consideration of payment of a toll ( Commission v Ireland ) or the right to install cigarette machines in commercial premises ( Sinclair Collis , paragraphs 27 to 30).
|
33IT IS NECESSARY TO OBSERVE IN THIS CONNEXION THAT THE EEC TREATY CONTAINS NO PROVISION PROHIBITING EFFECTS OF DOUBLE TAXATION OF THIS TYPE .
| 0 |
868,479 |
29 First, it is settled case-law that a decision adopted by a Community institution which has not been challenged by its addressee within the time-limit laid down by the fifth paragraph of Article 230 EC becomes definitive as against that person (see, inter alia, Case 156/77 Commission v Belgium [1978] ECR 1881, paragraphs 20 to 24, Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraphs 9 and 10, and Case C-188/92 TWD Textilwerke Deggendorf v Germany [1994] ECR I-833, paragraph 13). Such a rule is based in particular on the consideration that the periods within which legal proceedings must be brought are intended to ensure legal certainty by preventing Community measures which produce legal effects from being called in question indefinitely (Case C-178/95 Wiljo v Belgian State [1997] ECR I-585, paragraph 19).
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21QUE , D ' UNE PART , L ' EXCEPTION PREVUE A L ' ARTICLE 184 DU TRAITE EST LIMITEE , AUX TERMES DE CETTE DISPOSITION , AUX LITIGES ' METTANT EN CAUSE UN REGLEMENT DU CONSEIL OU DE LA COMMISSION ' ET NE SAURAIT ETRE INVOQUEE EN AUCUN CAS PAR L ' ETAT MEMBRE QUI A ETE DESTINATAIRE D ' UNE DECISION INDIVIDUELLE ;
| 1 |
868,480 |
29. The exclusive right under Article 5(1)(a) of Directive 89/104 was conferred in order to enable the trade mark proprietor to protect his specific interests as proprietor, that is, to ensure that the trade mark can fulfil its function. The exercise of that right must therefore be reserved to cases in which a third party’s use of the sign affects or is liable to affect the functions of the trade mark (see, inter alia, Case C-206/01 Arsenal Football Club [2002] ECR I-10273, paragraph 51; Case C‑487/07 L’Oréal and Others [2009] ECR I–0000, paragraph 58; and Google France and Google , paragraph 75).
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54. It should be recalled, first, that, according to settled case-law, in the absence of unifying or harmonising measures adopted by the Community, the Member States remain competent to determine the criteria for taxation of income and wealth with a view to eliminating double taxation by means inter alia of international agreements (see Case C‑307/97 Saint-Gobain [1999] ECR I‑6161, paragraph 57).
| 0 |
868,481 |
90. It is clear, moreover, from the case-law of the Court that, where a contract contains elements relating both to a public works contract and another type of contract, it is the main object of the contract which determines which body of European Union rules on public contracts is to be applied in principle (see, to that effect, Auroux and Others , paragraph 37).
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68. In that connection, it is necessary to take account of the characteristics and particularities of the domain concerned.
| 0 |
868,482 |
48
Whilst it is true that failure to refer to a specific provision of the Treaty need not necessarily constitute an infringement of essential procedural requirements if the legal basis for an act may be determined from other parts of the act, such explicit reference is, however, indispensable where, in its absence, the parties concerned and the Court are left uncertain as to the specific legal basis (judgments of 26 March 1987 in Commission v Council, 45/86, EU:C:1987:163, paragraph 9, and 1 October 2009 in Commission v Council, C‑370/07, EU:C:2009:590, paragraph 56).
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104 It follows from those provisions, taken together, that Regulation No 2409/92 has, indirectly but definitely, prohibited air carriers of non-member countries which operate in the Community from introducing new products or fares lower than the ones existing for identical products. By proceeding in that way, the Community legislature has limited the freedom of those carriers to set fares and rates, where they operate on intra-Community routes by virtue of the fifth-freedom rights which they enjoy. Accordingly, to the extent indicated in Article 1(3) of Regulation No 2409/92, the Community has acquired exclusive competence to enter into commitments with non-member countries relating to that limitation on the freedom of non-Community carriers to set fares and rates.
| 0 |
868,483 |
34. At paragraphs 39 to 51 of that judgment, the Court considered whether the old Federal Law on the remuneration of civil servants engendered discrimination within the meaning of Articles 2 and 6(1) of Directive 2000/78 and concluded that it did, on the ground that the allocation of a basic pay step to civil servants upon recruitment according to their age went beyond what was necessary to attain the legitimate aim pursued by that law.
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72. As regards, in the first place, the context in which the Law establishing the Land Berlin transitional system was adopted, it should be noted that, according to the requests for a preliminary ruling, even before the judgment in Hennigs and Mai (EU:C:2011:560) was delivered, the competent national legislative authorities repealed the old version of the BbesG and, in order to eliminate the discrimination on grounds of age which flawed that legislation, reformed the system for the remuneration of federal civil servants and those of Land Berlin.
| 1 |
868,484 |
38 As regards, more particularly, the second of those conditions, the Court has held that a breach of Community law is sufficiently serious where a Member State, in the exercise of its legislative powers, has manifestly and gravely disregarded the limits on its powers (see Brasserie du Pêcheur and Factortame, paragraph 55; British Telecommunications, paragraph 42; and Dillenkofer and Others, paragraph 25) and that where, at the time when it committed the infringement, the Member State in question had 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 (see Hedley Lomas, paragraph 28; and Norbrook Laboratories, paragraph 109).
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43. Accordingly, the Austrian legislation must be regarded as having existed on 31 December 1993 for the purposes of Article 57(1) EC.
| 0 |
868,485 |
35 It should be pointed out in that regard that Article 5(2) of Regulation No 1697/79 makes waiver of post-clearance recovery by the national authorities subject to three cumulative conditions (see, in particular, the judgment in Case C-370/96 Covita v Greek State [1998] ECR I-7711, paragraph 24). Provided that all those conditions are fulfilled, the person liable is entitled to waiver of post-clearance recovery (see, in particular, Case C-250/91 Hewlett Packard France v Directeur Général des Douanes [1993] ECR I-1819, paragraph 12).
|
18 Moreover, the GueKG does not allow the Tariff Boards to fix the tariffs solely by reference to the interests of undertakings or associations of undertakings engaged in transport but requires them to take account of the interests of the agricultural sector and of medium-sized undertakings or regions which are economically weak or have inadequate transport facilities. Furthermore, the tariffs are fixed only after compulsory consultation of an advisory committee made up of representatives of the users of the services.
| 0 |
868,486 |
68. According to settled case-law, in an action for failure to fulfil obligations it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission which must provide the Court with the evidence necessary for the Court to establish that the obligation has not been fulfilled, and it may not rely on any presumption (see, inter alia, Commission v Italy , C‑135/05, EU:C:2007:250, paragraph 26, and Commission v Greece , C‑305/06, EU:C:2008:486, paragraph 41).
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60 Even though R and her first husband have meanwhile divorced, it is apparent from the file that he continues to pursue an activity as an employed person in the United Kingdom and therefore enjoys the status of a worker who is a national of one Member State and who is employed in the territory of another Member State for the purposes of Articles 1 and 10 of Regulation No 1612/68.
| 0 |
868,487 |
45. The Court has consistently held that Article 1(2) of Directive 91/439 provides for mutual recognition, without any formality, of driving licences issued by Member States ( Skanavi and Chryssanthakopoulos , cited above, paragraph 26, and Awoyemi , cited above, paragraph 41). That provision imposes on Member States a clear and precise obligation, which leaves no room for discretion as to the measures to be adopted in order to comply with it ( Awoyemi , paragraph 42, and Case C-246/00 Commission v Netherlands [2003] ECR I‑7485, paragraph 61).
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61. In addition, as indicated in paragraph 41 of Awoyemi , the obligation of mutual recognition of driving licences is a clear and unconditional obligation and the Member States have no discretion as to the measures to be adopted in order to comply with the requirement.
| 1 |
868,488 |
28. Second, even if it were assumed that national legislation provides for that possibility in such a case, the conditions of evidence required for reimbursement could seldom be satisfied. It is apparent from the Belgian Government’s answer to a written question from the Court, relating to those conditions of evidence, that the victim of a theft of goods can obtain repayment of the VAT only if he succeeds in showing, first, that the goods have indeed been stolen and, second, that they have not been put on the market after the theft. That requirement of the proof of a negative, which is moreover outside the knowledge of the victim of the theft, makes it virtually impossible to make use of the right to repayment (see, to that effect, concerning the repayment of charges levied in breach of Community law, Case 199/82 San Giorgio [1983] ECR 3595, paragraph 14, and Case C‑343/96 Dilexport [1999] ECR I‑579, paragraph 48).
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50. Given that the conditions referred to in Article 87(1) EC must be applied concurrently (see paragraph 38 of this judgment), there is no further need to consider whether the other aspects of the concept of State aid are met in this instance.
| 0 |
868,489 |
44. However, that incorrect reference to Article 133 EC as a second legal basis for that directive does not of itself mean that the directive is invalid ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 98). Such an error in the citations of a Community act is no more than a purely formal defect, unless it gave rise to irregularity in the procedure applicable to the adoption of that act (see, to that effect, Case 165/87 Commission v Council [1988] ECR 5545, paragraph 19, and Joined Cases C-184/02 and C-223/02 Spain and Finland v Parliament and Council [2004] ECR I-0000, paragraph 44). The Court went on to hold, in paragraph 111 of British American Tobacco (Investments) and Imperial Tobacco , that recourse to the twofold legal basis of Articles 95 EC and 133 EC did not give rise to irregularity in the procedure for adopting the directive and that the directive was not invalid on that account.
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20. In that regard, it must first be recalled that it is not permissible for a party to alter the very subject‑matter of the case during the proceedings, and that the merits of the action must be examined solely in the light of the claims contained in the application initiating the proceedings (see, inter alia, Case 232/78 Commission v France [1979] ECR 2729, paragraph 3; Case C‑256/98 Commission v France [2000] ECR I‑2487, paragraph 31; and Case C‑508/03 Commission v United Kingdom [2006] ECR I‑3969, paragraph 61).
| 0 |
868,490 |
114. The Court has consistently held that there is a misuse of power where an institution adopts a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see, in particular, Case C‑84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69, and Case C-48/96 P Windpark Groothusen v Commission [1998] ECR I-2873, paragraph 52).
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69 The Court' s case-law (see, in particular, Case C-156/93 Parliament v Commission [1995] ECR I-2019, paragraph 31) defines misuse of powers as the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case.
| 1 |
868,491 |
54. As regards the field of State aid, applicants who challenge the merits of a decision appraising aid taken on the basis of Article 88(3) EC or at the end of the formal examination procedure are considered to be individually concerned by that decision if their market position is substantially affected by the aid to which the contested decision relates (see, to that effect, Cofaz and Others v Commission paragraphs 22 to 25, and Commission v Aktionsgemeinschaft Recht und Eigentum , paragraphs 37 and 70).
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35. Since this form of monitoring goes beyond the work strictly generated by the implementation of individual licences, it follows that taking into account expenditure linked to this monitoring is contrary to Article 11(1) of Directive 97/13.
| 0 |
868,492 |
52. Second, the referring court must verify that the scope, the effectiveness, the availability, the public awareness and simplicity of use of the right to reimbursement allow for the correction of any imbalances created by the private copying levy system, in order to respond to the practical difficulties observed (see judgment in Amazon.com International Sales and Others , EU:C:2013:515, paragraph 36).
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39 Moreover, such an interpretation cannot be regarded, as the French Government argues, as a possible source of discrimination against public undertakings as compared with private undertakings. In a context such as that in point here, the position of a public undertaking cannot be compared with that of a private undertaking. Through its public undertakings, the State may pursue objectives other than commercial ones, as is pointed out in the 11th recital in the preamble to Directive 80/723.
| 0 |
868,493 |
17. The French Government submits, however, that that difference of treatment flows directly from the principle of fiscal territoriality, which the Court expressly recognised in Case C-250/95 Futura Participations and Singer [1997] ECR I‑2471, paragraph 22, and hence cannot be regarded as giving rise to overt or covert discrimination prohibited by the EC Treaty.
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22 Such a system, which is in conformity with the fiscal principle of territoriality, cannot be regarded as entailing any discrimination, overt or covert, prohibited by the Treaty.
The second condition: keeping of accounts
| 1 |
868,494 |
31
According to settled case-law, the derogation laid down in Article 17(1) of Directive 2003/88 must be interpreted in such a way so as to limit its scope to what is strictly necessary to safeguard the interests whose protection the derogation permits (judgments of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 89, and of 14 October 2010, Union syndicale Solidaires Isère, C‑428/09, EU:C:2010:612, paragraph 40).
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63 According to the Court' s judgment in Suiker Unie (cited above, at paragraphs 26 and 173), a concerted practice refers to a form of coordination between undertakings which, without having been taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them. In the same judgment, the Court added that the criteria of coordination and cooperation must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the Common Market.
| 0 |
868,495 |
39. In that regard, it should be observed that the legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted. A Member State therefore cannot rely on information which it failed to bring to the attention of the Commission in the course of the administrative procedure when contesting the legality of such a decision (see, inter alia, Joined Cases C-278/92, C-279/92 and C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 31, and Case C-382/99 Netherlands v Commission [2002] ECR I-5163, paragraph 76).
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27. It should first be pointed out that, according to settled case-law, the objective of the European Union legislation on customs valuation is to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values (see Case C-256/07 Mitsui & Co. Deutschland [2009] ECR I‑1951, paragraph 20 and the case-law cited).
| 0 |
868,496 |
66. It is sufficient to recall in that regard that, as the Court has consistently held, a rule of secondary legislation, such as Article 8 of Directive 2000/36, cannot be interpreted as authorising the Member States to impose or to maintain conditions contrary to the Treaty rules on the free movement of goods (see, to that effect, inter alia , Case C-47/90 Delhaize et Le Lion [1992] ECR I-3669, paragraph 26; Case C-315/92 Verband Sozialer Wettbewerb [1994] ECR I-317, "Clinique " , paragraph 12; and Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others [1996] ECR I-3457, paragraph 27).
Applicability of Article 30 of the Treaty
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40. It should at the outset be recalled that, as is clear from recital 8 in the preamble to Directive 2001/23, the above provision was adopted to clarify the concept of transfer in the light of the case-law of the Court (see, inter alia, Case 186/83 Botzen and Others [1985] ECR 519, paragraph 6, and Case 24/85 Spijkers [1986] ECR 1119, paragraph 11). According to that case-law, Directive 2001/23 is intended to ensure the continuity of employment relationships existing within an economic entity, irrespective of any change of ownership and, thus, to protect employees in the event that such a change occurs.
| 0 |
868,497 |
23 In De Peijper (paragraph 10) the Court considered the case of a proprietary medicinal product which was prepared in accordance with a uniform method of preparation and which had a well-defined qualitative and quantitive composition. The product was lawfully in circulation in several Member States since the authorizations required by the legislation of those States had been granted in relation to that product either to the manufacturer or to the person responsible for putting the product on the market. The product in question was in every respect the same as a product in respect of which the public health authorities of the Member State of importation already possessed documents relating to its method of preparation and its quantative and qualitative composition, these documents having been previously produced to them by the manufacturer or his duly appointed importer in support of an application for an authorization to place it on the market.
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68. The principle of legal certainty is a fundamental principle of Community law which requires, in particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly (see Case 169/80 Gondrand Frères and Garancini [1981] ECR 1931; Case C-143/93 Van Es Douane Agenten [1996] ECR I-431, paragraph 27; and Case C-110/03 Belgium v Commission [2005] ECR I-2801, paragraph 30).
| 0 |
868,498 |
35. It follows from the foregoing that the measures which can be adopted on the basis of Article 57 of the 2003 Act of Accession are limited, in principle, to adaptations intended to render earlier Community measures applicable in the new Member States, to the exclusion of all other amendments (see, by way of analogy, in respect of the identical provision contained in the 1994 Act of Accession, Parliament v Council , cited above, paragraphs 14 and 19), and, particularly, to the exclusion of temporary derogations.
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12. En outre, s’agissant de la question soulevée par le Royaume de Suède quant à l’interprétation de l’article 8 de la directive, il convient de rappeler que, selon une jurisprudence constante, un État membre ne saurait invoquer des difficultés liées à l’interprétation d’une directive pour en différer la transposition au-delà des délais prévus (arrêt du 20 mars 2003, Commission/Allemagne, C‑135/01, Rec. p. I‑2837, point 25 et jurisprudence citée).
| 0 |
868,499 |
31. That finding is confirmed by the objectives pursued by Regulation No 2419/2001. As evidenced by recital 32 in the preamble thereto, it is aimed at adopting the measures necessary to combat irregularities and fraud in the implementation of the different aid schemes coming within the integrated system in order to protect the European Union’s financial interests effectively. In order to attain that objective, that regulation provides, as evidenced by recital 33 in the preamble thereto, for reductions and exclusions according to the gravity of the irregularity committed in the aid application, up to total exclusion from one or more aid schemes for a determined period (see, by analogy, judgment in Agrargenossenschaft Pretzsch , C‑417/00, EU:C:2002:715, paragraphs 35 to 39).
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41. Secondly, with regard to freedom of movement for workers, salaried workers who have carried on an occupation in a Member State other than the Kingdom of Denmark and who are subsequently employed, or seek employment, in the latter Member State will normally have concluded their pension and life assurance contracts or invalidity and sickness insurance contracts with insurers established in the first State. It follows that there is a risk that the provisions in question may operate to the particular detriment of these workers who are, as a general rule, nationals of other Member States (see, to that effect, Case C‑204/90 Bachmann [1992] ECR I‑249, paragraph 9, and Case C‑300/90 Commission v Belgium [1992] ECR I‑305, paragraph 7).
| 0 |
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