sent0
stringlengths 36
32.8k
⌀ | sent1
stringlengths 8
29.9k
| hardneg
stringlengths 8
32.8k
|
|---|---|---|
52. It does not follow, on the other hand, from Nádasdi and Németh that the Member States’ powers to make new tax arrangements are unlimited. On the contrary, it is settled case-law that the prohibition laid down in Article 110 TFEU must apply whenever a fiscal charge is liable to discourage imports of goods originating in other Member States in favour of domestic goods (see, to that effect, Case 252/86 Bergandi [1988] ECR 1343, paragraph 25; Case C‑45/94 Ayuntamiento de Ceuta [1995] ECR I‑4385, paragraph 29; and C‑221/06 Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten [2007] ECR I‑9643, paragraph 40).
|
25 THE COURT STATED IN THE SAME JUDGMENTS THAT ARTICLE 95 MUST BE INTERPRETED WIDELY SO AS TO COVER ALL TAXATION PROCEDURES WHICH, DIRECTLY OR INDIRECTLY, CONFLICT WITH THE PRINCIPLE OF EQUALITY OF TREATMENT OF DOMESTIC PRODUCTS AND IMPORTED PRODUCTS; THE PROHIBITION CONTAINED IN THAT ARTICLE MUST THEREFORE APPLY WHENEVER A FISCAL LEVY IS LIKELY TO DISCOURAGE IMPORTS OF GOODS ORIGINATING IN OTHER MEMBER STATES TO THE BENEFIT OF DOMESTIC PRODUCTION .
|
37 It should be pointed out in that connection that, as appears in particular from the judgment in Joined Cases C-6/90 and C-9/90 Francovich and Others v Italian Republic [1991] ECR I-5357, at paragraph 17, the right of a State to choose among several possible means of achieving the objectives of a directive does not exclude the possibility for individuals of enforcing before national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the directive alone.
|
44. Where national legislation falling within an area which has not been harmonised at European Union level is applicable without distinction to all persons and undertakings operating in the territory of the Member State concerned, it may, notwithstanding its restrictive effect on the freedom to provide services, be justified where it meets an overriding requirement in the public interest and that interest is not already safeguarded by the rules to which the service provider is subject in the Member State in which he is established and in so far as it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it ( Arblade and Others , paragraphs 34 and 35; Case C-224/04 Commission v Germany [2006] ECR I-885, paragraph 31; and Case C-219/08 Commission v Belgium [2009] ECR I-9213, paragraph 14).
|
31. However, where national legislation falling within an area which has not been harmonised at Community level is applicable without distinction to all persons and undertakings operating in the territory of the Member State concerned, it may, notwithstanding its restrictive effect on the freedom to provide services, be justified where it meets an overriding requirement relating to the public interest and that interest is not already safeguarded by the rules to which the service provider is subject in the Member State in which he is established and in so far as it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see Joined Cases C‑369/96 and C‑376/96 Arblade and Others [1999] ECR I-8453, paragraphs 34 and 35, and Portugaia Construções , paragraph 19).
|
27. Those aspects, raised by the case-law cited, must be taken into account in the analysis of the characteristics of the period at issue in the main proceedings. Thus, as the Advocate general observed, in point 45 of his Opinion, that analysis must cover two aspects, namely the duration of the time-limit laid down by the legislature and the mechanism adopted to start that period running.
|
25. In that connection, it must be recalled that, as regards the taxation of services on board ships, the Court has already acknowledged that the Sixth Directive does not prohibit Member States from extending the scope of their tax legislation beyond their territorial limits, so long as they do not encroach on the jurisdiction of other States (Case 283/84 Trans Tirreno Express [1986] ECR 231, and Case C‑30/89 Commission v France [1990] ECR I-691, paragraph 18). Such considerations also apply in relation to taxation of supplies of goods.
|
18 IT SHOULD BE NOTED THAT A TRANSPORT OPERATION OF THE TYPE IN QUESTION IN THE CASE PENDING BEFORE THE NATIONAL COURT DOES NOT GIVE RISE TO ANY CONFLICT OF JURISDICTION AS FAR AS THE CHARGING OF VAT IS CONCERNED WHERE THE SHIP EFFECTING THE TRANSPORT PLIES BETWEEN TWO POINTS WITHIN A SINGLE MEMBER STATE AND WHERE THE ROUTE CHOSEN , EVEN IF PART OF IT IS OUTSIDE THE NATIONAL TERRITORY , DOES NOT PASS THROUGH ANY AREA FALLING UNDER THE NATIONAL SOVEREIGNTY OF ANOTHER STATE .
|
45 However, although respect for the fundamental rights which form an integral part of those general principles of law is a condition of the legality of Community acts, those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community (see, inter alia, on the scope of Article 235 of the EC Treaty as regards respect for human rights, Opinion 2/94 [1996] ECR I-1759, paragraphs 34 and 35).
|
31. In that respect, it must be recalled that the Court has already held that the fiction by which the failure of the authorities to reply is deemed to constitute an implied refusal cannot, as such, be considered incompatible with the requirements of Directive 90/313 on the sole ground that a tacit refusal, by definition, does not include any reasons (Case C-233/00 Commission v France [2003] ECR I-6625, paragraph 111).
|
111. In the light of the foregoing, it must be held that, in contrast to what the Commission claims, the fiction by which the failure of the authorities to reply is deemed to constitute an implied refusal cannot, as such, be considered incompatible with the requirements of Directive 90/313 on the sole ground that a tacit refusal by definition does not include any reasons. Moreover, as Community law currently stands, the wording of that directive does not provide sufficient justification for the alleged necessity that the refusal be accompanied by the reasons for it.
|
49. That interpretation is confirmed by the purpose of the exemptions provided for in that provision, which is, inter alia, to avoid an increase in the cost of consumer credit (see Velvet & Steel Immobilien , paragraph 24, and the order in Tiercé Ladbroke and Derby , paragraph 24). Since the carrying out of the transaction at issue in the main proceedings is unrelated to such a purpose, that transaction cannot benefit from such exemptions.
|
129. It should be noted in that connection that the Court has already held that the fact that the legislation of the competent Member State does not guarantee a patient covered by that legislation, who has been authorised to receive hospital treatment in another Member State in accordance with Article 22(1)(c) of Regulation No 1408/71, a level of payment equivalent to that to which he would have been entitled if he had received hospital treatment in the competent Member State is an unjustified restriction of the freedom to provide services within the meaning of Article 49 EC (see Vanbraekel , paragraphs 43 to 52).
|
48 The Court has likewise recognised, as regards the objective of maintaining a balanced medical and hospital service open to all, that even if that objective is intrinsically linked to the method of financing the social security system, it may also fall within the derogations on grounds of public health under Article 56 of the EC Treaty (now, after amendment, Article 46 EC) in so far as it contributes to the attainment of a high level of health protection (Kohll, paragraph 50).
|
88. Il s’ensuit que le non-respect d’un délai de jugement raisonnable dans le cadre de l’examen d’un recours juridictionnel introduit contre une décision de la Commission infligeant une amende à une entreprise pour violation des règles de concurrence du droit de l’Union ne saurait conduire à l’annulation, totale ou partielle, de l’amende infligée par cette décision.
|
65. While it is apparent from the above that such legislation is generally capable of attaining the objective of public health protection, it is also essential that that legislation pursues that objective consistently. According to the Court’s case-law, national legislation is appropriate for ensuring attainment of the objective relied upon only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner (see, to that effect, judgments in Blanco Pérez and Chao Gómez , C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 94; Ottica New Line di Accardi Vincenzo , C‑539/11, EU:C:2013:591, paragraph 47; and Sokoll-Seebacher , C‑367/12, EU:C:2014:68, paragraph 39).
|
94. While it is apparent from the above that legislation such as that at issue in the cases before the referring court is generally appropriate to attaining the objective of ensuring that the provision of medicinal products to the public is reliable and of good quality, it is also essential that the way in which that legislation pursues that objective is not inconsistent. According to the case-law of the Court, the various rules – and the national legislation as a whole – are appropriate for ensuring attainment of the objective relied upon only if they genuinely reflect a concern to attain that objective in a consistent and systematic manner (see, to that effect, Hartlauer , paragraph 55, and Apothekerkammer des Saarlandes and Others , paragraph 42).
|
9. Each month, on a particular date, Denplan will seek to collect the payments due from dentists’ patients. To do so it creates for each patient an electronic file which it uses to transmit information to the Bankers’ Automated Clearing System (‘the BACS’), an automated inter-bank settlement system established and operated by a company all the members of which are major United Kingdom banks. The information which Denplan transmits to the BACS includes, in respect of each patient, the patient’s bank account number and the amount which Denplan is to collect from that account. The BACS will then transmit that information on to the processing centre of the relevant bank.
|
32
It is true that the Court has ruled, in certain circumstances, on questions referred for a preliminary ruling which had been submitted by bodies making a reference whose jurisdiction, although discretionary, did not nevertheless depend on the agreement of the parties and whose decisions were binding on those parties, which is precisely the case for the Secretario Judicial (Registrar) in the context of actions for the recovery of fees (see order of 13 February 2014, Merck Canada, C‑555/13, EU:C:2014:92, paragraph 18 and the case-law cited; judgments of 12 June 2014, Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta, C‑377/13, EU:C:2014:1754, paragraph 28, and of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 23).
|
23. In this regard, it must nevertheless be observed that the decisions of the referring body, whose jurisdiction does not depend on the parties’ agreement, are binding on the parties (see order in Merck Canada , C‑555/13, EU:C:2014:92, paragraph 18 and the case-law cited; and judgment in Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta , C‑377/13, EU:C:2014:1754, paragraph 28).
|
130. It follows that, given the primordial importance of combating terrorism with a view to maintaining international peace and security, the restrictions on the appellant’s right to property brought about by the contested acts are not disproportionate to the aims pursued.
|
101. Under Article 3(5) TEU, the European Union is to contribute to the strict observance and the development of international law. Consequently, when it adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union (see, to this effect, Case C‑286/90 Poulsen and Diva Navigation [1992] ECR I‑6019, paragraphs 9 and 10, and Case C‑162/96 Racke [1998] ECR I‑3655, paragraphs 45 and 46).
|
9 As a preliminary point, it must be observed, first, that the European Community must respect international law in the exercise of its powers and that, consequently, Article 6 abovementioned must be interpreted, and its scope limited, in the light of the relevant rules of the international law of the sea.
|
98. Firstly, the fact that a national support scheme is designed to favour directly the production of green electricity, rather than solely its consumption, can be explained, in particular, by the fact that the green nature of the electricity relates only to its method of production and that, accordingly, it is primarily at the production stage that the environmental objectives in terms of the reduction of greenhouse gases can actually be pursued (see Ålands Vindkraft , EU:C:2014:2037, paragraph 95).
|
26. In this regard, the Court has held many times that where a transaction carried out by a legal person, such as the increase of its company capital or the amendment of its constitution, is subject to legal formalities under national law, that formality is necessary for the carrying‑on of that legal person’s business (see, in particular, Modelo I , paragraph 26; Case C-19/99 Modelo ( ‘ Modelo II ’ ) [2000] ECR I‑7213, paragraph 26; Case C-134/99 IGI [2000] ECR I‑7717, paragraph 24; Case C‑206/99 SONAE [2001] ECR I‑4679, paragraph 30; and Case C‑426/98 Commission v Greece [2002] ECR I-2793, paragraph 30) .
|
26 Since it is compulsory under Portuguese law to register increases in share capital by a notarially attested act, it follows that this constitutes an essential formality connected with the legal form of the company and that it is necessary if the company is to carry on business.
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
64. In any event, in order to be justified the restrictions on freedom of establishment and on freedom to provide services must satisfy the conditions laid down in the case-law of the Court (see, inter alia, Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32, and Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37).
|
32 Consequently, Articles 48 and 52 preclude any national measure governing the conditions under which an academic title obtained in another Member State may be used, where that measure, even though it is applicable without discrimination on grounds of nationality, is liable to hamper or to render less attractive the exercise by Community nationals, including those of the Member State which enacted the measure, of fundamental freedoms guaranteed by the Treaty. The situation would be different only if such a measure pursued a legitimate objective compatible with the Treaty and was justified by pressing reasons of public interest (see to that effect, judgment in Case 71/76 Thieffry v Conseil de l' Ordre des Avocats à la Cour de Paris [1977] ECR 765, paragraphs 12 and 15). It would however also be necessary in such a case for application of the national rules in question to be appropriate for ensuring attainment of the objective they pursue and not to go beyond what is necessary for that purpose (see judgment in Case C-106/91 Ramrath v Ministre de la Justice [1992] ECR I-3351, paragraphs 29 and 30).
|
39 The Court must therefore examine whether the amendments referred to by the applicant relate to the very essence of the text taken as a whole.
|
34. Moreover, in the absence of any unifying or harmonising Community measures, Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (see, to that effect, Amurta , paragraphs 16 and 17).
|
17. It must also be pointed out that, in the absence of any unifying or harmonising Community measures, Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (Case C‑336/96 Gilly [1998] ECR I‑2793, paragraphs 24 and 30; Case C‑307/97 Saint-Gobain ZN [1999] ECR I‑6161, paragraph 57; and Case C‑470/04 N [2006] ECR I‑7409, paragraph 44).
|
Par conséquent, c’est sans commettre d’erreur de droit que le Tribunal a estimé que la chambre de recours avait considéré, à bon droit, au point 62 de la décision litigieuse, que le consommateur ferait une distinction entre les signes en cause, en dépit de leurs similitudes visuelles et phonétiques.
|
31 In that regard, as the Court held at paragraph 30 of the judgment in Fantask and Others, cited above, when calculating the amount of duties paid by way of fees or dues, the Member States are entitled to take account not only of the material and salary costs which are directly related to the effecting of the registrations in respect of which they are incurred, but also, in the circumstances indicated by the Advocate General at paragraph 43 of his Opinion in the same case, of the proportion of the overheads of the competent authority which can be attributed to those registrations.
|
30 It must be stated in that regard that, in calculating the amount of duties paid by way of fees or dues, the Member States are entitled to take account not only of the material and salary costs which are directly related to the effecting of the registrations in respect of which they are incurred, but also, in the circumstances indicated by the Advocate General in paragraph 43 of his Opinion, of the proportion of the overheads of the competent authority which can be attributed to those registrations. To that extent only, the costs specified by the national court in the first three indents of its second question may form part of the basis for calculating the charges.
|
100. En effet, les règles sur lesquelles sont fondés tant la décision litigieuse que l’arrêt Commission/Italie (C‑302/09, EU:C:2011:634) constituent l’expression de l’une des missions essentielles conférées à l’Union en vertu de l’article 2 CE, à savoir l’établissement d’un marché commun, ainsi que de l’article 3, paragraphe 1, sous g), CE, selon lequel l’action de la Communauté comporte un régime assurant que la concurrence n’est pas faussée dans le marché intérieur (voir, en ce sens, arrêt Commission/Espagne, C‑184/11, EU:C:2014:316, point 70 et jurisprudence citée).
|
122. As the European Union concept of joint and several liability for payment of a fine is merely the manifestation of an ipso jure legal effect of the concept of an ‘undertaking’, the determination of the amount of the fine in respect of which the Commission may demand payment in full by each of those held jointly and severally liable derives, in any individual case, from the application of that concept of an undertaking (see, to that effect, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission , paragraphs 51 and 57).
|
57. In particular, in so far as it is merely the manifestation of an ipso jure legal effect of the concept of an ‘undertaking’, the EU law concept of joint and several liability for payment of a fine concerns only the undertaking itself and not the companies of which it is made up.
|
23. It is apparent from the order for reference that the houseboat, without any system of propulsion, has been immobilised on that part of the river water for many years. It is attached to the demarcated part of the riverbed by means of anchors and is attached to the bank by chains and ropes. Those immobilisation measures cannot be removed easily, that is to say without effort and considerable cost. In accordance with the case‑law of the Court of Justice, it is not necessary for a construction to be indissociably incorporated into the ground in order to be regarded as immovable property for the purposes of applying the rules on VAT ( Maierhofer , paragraph 33).
|
68. It is necessary, therefore, to distinguish between the unequal treatment permitted under Article 73d(1)(a) of the Treaty and the discriminatory treatment prohibited by Article 73d(3). It is clear from the case-law that for national tax legislation such as that at issue in the main proceedings to be regarded as compatible with the provisions of the Treaty relating to the free movement of capital the difference in treatment must relate to situations which are not objectively comparable or be justified by an overriding reason in the public interest (see Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 43; Manninen, paragraph 29; and C‑512/03 Blanckaert [2005] ECR I-7685, paragraph 42).
|
42. However, unequal treatment permitted under Article 58(1)(a) EC must be distinguished from arbitrary discrimination, which is prohibited under Article 58(3) EC. According to case-law, a national provision such as that at issue in the main proceedings could be regarded as compatible with the provisions of the Treaty on the free movement of capital provided that the difference in treatment applies to situations which are not objectively comparable or is justified by overriding reasons in the general interest (Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 43, and Case C-319/02 Manninen [2004] ECR I-7477, paragraphs 28 and 29).
|
22 The Council then replaced the words "the spouse" by "the person entitled to the family benefits or family allowances, or the person to whom they are paid".
|
86. Consequently, the Court has already held that a criterion for charging higher taxation which by definition can never be fulfilled by similar domestic products cannot be considered to be compatible with the prohibition of discrimination laid down in Article 90 EC. Such a system has the effect of excluding domestic products in advance from the heaviest taxation (Case 319/81 Commission v Italy [1983] ECR 601, paragraph 17). Likewise, the Court has held that such differential taxation is incompatible with Community law if the products most heavily taxed are, by their very nature, imported products (Case 106/84 Commission v Denmark [1986] ECR 833, paragraph 21).
|
21 HOWEVER , SUCH DIFFERENTIAL TAXATION IS INCOMPATIBLE WITH COMMUNITY LAW IF THE PRODUCTS MOST HEAVILY TAXED ARE , AS IN THIS CASE , BY THEIR VERY NATURE , IMPORTED PRODUCTS .
|
77. As was pointed out in paragraphs 73 and 74 of this judgment, Article 10(1) of Decision No 1/80 imposes on each Member State, as regards the conditions of work for Turkish workers duly registered as belonging to its labour force, obligations analogous to those applying to nationals of other Member States.
|
50
With regard to the question whether Article 16 of the Charter precludes the possibility, for a NRA, to require an operator to update its prices on an annual basis and to submit them for periodic monitoring, it is appropriate to recall that, according to the settled case-law of the Court, the protection afforded by that provision covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition. In addition, freedom of contract includes, in particular, the freedom to choose with whom to do business and the freedom to determine the price of a service. However, the freedom to conduct a business does not constitute an absolute prerogative, but must be viewed in relation to its function in society (see, to that effect, judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraphs 42, 43, 45 and the case-law cited, and of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraphs 25 and 28).
|
42. The protection afforded by Article 16 of the Charter covers the freedom to exercise an economic or commercial activity, the freedom of contract and free competition, as is apparent from the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter (Case C-279/09 DEB [2010] ECR I-13849, paragraph 32).
|
46
In that regard, it should be noted that Directive 2004/18, as amended, is of general application, whereas Regulation No 1370/2007 applies only to public passenger transport services by rail and road.
|
27. In that regard, it must be recalled that, in proceedings under Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 43, and Case C‑414/07 Magoora [2008] ECR I‑0000, paragraph 22).
|
22. In that regard, it must be recalled that, in proceedings under Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑119/05 Lucchini [2007] ECR I-6199, paragraph 43; Case C‑162/06 International Mail Spain [2007] ECR I-9911, paragraph 23; and Case C‑221/07 Zablocka-Weyhermüller [2008] ECR I-0000, paragraph 20).
|
24. Finally, it should be noted that receipt of financial compensation if the employment relationship has ended by reason of the worker’s death is essential to ensure the effectiveness of the entitlement to paid annual leave granted to the worker under Directive 2003/88.
|
24. In that context, it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved. They may do so, however, only within the limits set by the Treaty and must, in particular, observe the principle of proportionality (see Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior and Publivía [1991] ECR I-4151, paragraph 16), which requires that the measures adopted be appropriate to secure the attainment of the objective which they pursue and not go beyond what is necessary in order to attain it (see, in particular, Säger , paragraph 15; Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 35; Corsten , paragraph 39; and Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 33).
|
15 Having regard to the particular characteristics of certain provisions of services, specific requirements imposed on the provider, which result from the application of rules governing those types of activities, cannot be regarded as incompatible with the Treaty. However, as a fundamental principle of the Treaty, the freedom to provide services may be limited only by rules which are justified by imperative reasons relating to the public interest and which apply to all persons or undertakings pursuing an activity in the State of destination, in so far as that interest is not protected by the rules to which the person providing the services is subject in the Member State in which he is established. In particular, those requirements must be objectively necessary in order to ensure compliance with professional rules and to guarantee the protection of the recipient of services and they must not exceed what is necessary to attain those objectives (see, most recently, the judgments in Cases C-154/89 Commission v France [1991] ECR I-659, C-180/89 Commission v Italy [1991] ECR I-709 and C-198/89 Commission v Greece [1991] ECR I-727.
|
77. Par conséquent, sans qu’il soit besoin d’examiner si les autres conditions énoncées à l’article 110 de la directive TVA sont remplies, force est de constater que la dérogation prévue à cette disposition ne saurait justifier la réglementation litigieuse.
|
54 It is for the national court to establish the existence of those two elements, evidence of which must be adduced in accordance with the rules of national law, provided that the effectiveness of Community law is not thereby undermined (see, to that effect, in particular, Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633, paragraphs 17 to 25 and 35 to 39; Case 222/82 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraphs 17 to 21; and Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Ministry of Agriculture, Fisheries and Food [1996] ECR I-389, paragraphs 49 to 51, and Joined Cases C-418/97 and C-419/97 ARCO Chemie Nederland and Others v Minister van Volkshuisvesting [2000] ECR I-4475, paragraph 41).
|
22 IN THE FIRST PLACE THE APPLICATION OF NATIONAL LAW MUST NOT AFFECT THE SCOPE AND EFFECTIVENESS OF COMMUNITY LAW . THAT WOULD BE THE CASE IN PARTICULAR IF THE APPLICATION OF NATIONAL LAW MADE IT IMPOSSIBLE IN PRACTICE TO RECOVER SUMS IRREGULARLY GRANTED . FURTHERMORE , THE EXERCISE OF ANY DISCRETION TO DECIDE WHETHER OR NOT IT WOULD BE EXPEDIENT TO DEMAND REPAYMENT OF COMMUNITY FUNDS UNDULY OR IRREGULARLY GRANTED WOULD BE INCONSISTENT WITH THE DUTY TO RECOVER SUCH SUMS WHICH ARTICLE 8 ( 1 ) OF REGULATION NO 729/70 IMPOSES ON THE NATIONAL ADMINISTRATION .
|
26 The levy in question cannot therefore be linked to formalities to which capital companies may be made subject by reason of their legal form. Thus, an undertaking whose owner adopts the form of a capital company in the course of a year is not required to pay it a second time. Moreover, if in the following year that new legal person does not pay the levy, it does not thereby lose the benefit of its registration as a company.
|
22. Thus, as the Commission of the European Communities rightly pointed out, Article 29 itself lays down the only limits to the power of the Member States in the sense that they cannot provide for grounds of exclusion other than those mentioned therein. That power of the Member States is also limited by the general principles of transparency and equal treatment (see, inter alia, Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraphs 91 and 92, and Case C-421/01 Traunfellner [2003] ECR I-11941, paragraph 29).
|
92. That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed (see Telaustria and Telefonadress , cited above, paragraph 62).
|
38 That being so, to require a development cooperation agreement concluded between the Community and a non-member country to be based on another provision as well as on Article 130y and, possibly, also to be concluded by the Member States whenever it touches on a specific matter would in practice amount to rendering devoid of substance the competence and procedure prescribed in Article 130y.
|
61THE POWER TO ESTABLISH PERMANENT RULES FOR FISHING BELONGS THEREFORE TO THE COMMUNITY AS SUCH AND , ACCORDING TO THE SETTLED CASE-LAW OF THE COURT , AS EXPRESSED IN PARTICULAR IN PARAGRAPH 31 OF THE DECISION IN THE JUDGMENT OF 31 MARCH 1971 IN CASE 22/70 , COMMISSION V COUNCIL ( 1971 ) ECR 263 , THIS POWER IS AN EXCLUSIVE ONE .
|
31 THESE COMMUNITY POWERS EXCLUDE THE POSSIBILITY OF CONCURRENT POWERS ON THE PART OF MEMBER STATES, SINCE ANY STEPS TAKEN OUTSIDE THE FRAMEWORK OF THE COMMUNITY INSTITUTIONS WOULD BE INCOMPATIBLE WITH THE UNITY OF THE COMMON MARKET AND THE UNIFORM APPLICATION OF COMMUNITY LAW .
|
45. It follows therefrom that Article 3(1) of Regulation No 2988/95 is applicable both to irregularities leading to the imposition of an administrative penalty for the purposes of Article 5 thereof and to irregularities which are the subject of an administrative measure for the purposes of Article 4 of that regulation, a measure which is intended to withdraw the wrongly obtained advantage without however constituting a penalty (see, to that effect, judgments in Handlbauer , EU:C:2004:388, paragraphs 33 and 34, and Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 22).
|
49. In particular, it is for that court to satisfy itself, having regard inter alia to the actual rules for applying the restrictive legislation concerned, that the legislation genuinely meets the concern to reduce opportunities for gambling, to limit activities in that area and to fight gambling-related crime in a consistent and systematic manner (see Dickinger and Ömer EU:C:2011:582, paragraphs 50 and 56).
|
50. The fact remains, however, that the restrictions imposed by the Member States must satisfy the conditions laid down in the Court’s case-law as regards their proportionality, a matter which it is for the national courts to determine ( Liga Portuguesa de Futebol Profissional and Bwin International , paragraphs 59 and 60, and Stoß and Others , paragraphs 77 and 78).
|
26 Consequently, none of the provisions relied on by the Greek Government offers the crews of sea-going vessels protection equivalent to that resulting from the directive .
|
17. It is settled case-law that, for a measure, as State aid, to come within Article 87(1) EC, first, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer an advantage on the recipient; fourth, it must distort or threaten to distort competition, on the assumption that all those conditions must be cumulatively fulfilled (see, inter alia, judgment in Commission v Deutsche Post , C‑399/08 P, EU:C:2010:481, paragraphs 38 and 39 and the case-law cited).
|
38. First of all, according to settled case-law, the classification as ‘aid’ within the meaning of Article 87(1) EC requires that all the conditions set out in that provision are fulfilled (Case C-142/87 Belgium v Commission [1990] ECR I-959 (‘ Tubemeuse ’), paragraph 25; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I-4777, paragraph 125; and Case C-206/06 Essent Netwerk Noord and Others [2008] ECR I-5497, paragraph 63).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
45. It none the less appears, subject to verification by the national court, that, in the sector concerned, a limit of 12 on the number of concessions and, therefore, of gaming establishments, which, according to information provided by the Austrian Government, represents one establishment for 750 000 inhabitants, of its very nature makes it possible to limit opportunities for gambling and thus to attain an objective in the public interest recognised by European Union law (see, to that effect, Gambelli and Others , paragraphs 62 and 67; Placanica and Others , paragraph 53; and Carmen Media Group , paragraph 84). Since consumers must travel to the premises of an establishment in order to be able to take part in the games of chance in question, the consequence of a limitation on the number of such establishments is to reinforce the barriers to taking part in such games.
|
53. With regard to the first type of objective, it is clear from the case-law that although restrictions on the number of operators are in principle capable of being justified, those restrictions must in any event reflect a concern to bring about a genuine diminution of gambling opportunities and to limit activities in that sector in a consistent and systematic manner (see, to that effect, Zenatti , paragraphs 35 and 36, and Gambelli and Others , paragraphs 62 and 67).
|
90. Where it is not possible to dissociate such a restriction from the main operation or activity without jeopardising its existence and aims, it is necessary to examine the compatibility of that restriction with Article 81 EC in conjunction with the compatibility of the main operation or activity to which it is ancillary, even though, taken in isolation, such a restriction may appear on the face of it to be covered by the prohibition rule in Article 81(1) EC.
|
39
As regards the ‘subject matter’, the Court has stated that this means the end the action has in view (see, by analogy, judgments of 6 December 1994, Tatry, C‑406/92, EU:C:1994:400, paragraph 41, and of 8 May 2003, Gantner Electronic, C‑111/01, EU:C:2003:257, paragraph 25); the concept of ‘subject matter’ cannot be restricted so as to mean two claims which are formally identical (see, by analogy, judgment of 8 December 1987, Gubisch Maschinenfabrik, 144/86, EU:C:1987:528, paragraph 17).
|
41 The question accordingly arises whether two actions have the same object when the first seeks a declaration that the plaintiff is not liable for damage as claimed by the defendants, while the second, commenced subsequently by those defendants, seeks on the contrary to have the plaintiff in the first action held liable for causing loss and ordered to pay damages.
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
44 The Court has consistently held that, whilst the principle of the protection of legitimate expectations is one of the fundamental principles of the Community, traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained (see the judgment in Joined Cases C-258 and C-259/90 Pesquerías de Bermeo y Naviera Laida v Commission [1992] ECR I-2901, paragraph 34). That is true in an area such as the common agricultural policy and the common organization of the markets whose purpose involves constant adjustments to meet changes in the economic situation (see the judgment in Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraph 33).
|
34 With respect to the alleged breach of the principle of the protection of legitimate expectations, it must be borne in mind that the Court has consistently held that whilst the principle of the protection of legitimate expectations is one of the fundamental principles of the Community, traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained (see, to that effect, the judgment in Case C-350/88 Delacre v Commission [1990] ECR I-395). That applies to a field like that of exploratory fishing, where the objective being pursued is constantly changing by reference, in particular, to the results of previous fishing voyages.
|
11 BUT FOR THIS EXCEPTION, AN UNDERTAKING ESTABLISHED IN THE TERRITORY OF A MEMBER STATE WOULD BE REQUIRED TO REGISTER ITS WORKERS, NORMALLY SUBJECT TO THE SOCIAL SECURITY LEGISLATION OF THAT STATE, WITH THE SOCIAL SECURITY SYSTEM OF OTHER MEMBER STATES WHERE THEY WERE SENT TO PERFORM WORK OF SHORT DURATION .
|
52. First, the European Union must be bound by those rules (see Joined Cases 21/72 to 24/72 International Fruit Company and Others [1972] ECR 1219, paragraph 7, and Intertanko and Others , paragraph 44).
|
7 BEFORE THE INCOMPATIBILITY OF A COMMUNITY MEASURE WITH A PROVISION OF INTERNATIONAL LAW CAN AFFECT THE VALIDITY OF THAT MEASURE, THE COMMUNITY MUST FIRST OF ALL BE BOUND BY THAT PROVISION .
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
31 It should next be borne in mind that, according to the Court' s case-law, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the act in question (see in particular Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19).
|
19 THE COURT HAS CONSISTENTLY HELD THAT THE STATEMENT OF REASONS FOR A DECISION ADVERSELY AFFECTING AN UNDERTAKING MUST BE SUCH AS TO ALLOW THE COURT TO REVIEW ITS LEGALITY AND TO PROVIDE THE UNDERTAKING CONCERNED WITH THE INFORMATION NECESSARY TO ENABLE IT TO ASCERTAIN WHETHER OR NOT THE DECISION IS WELL-FOUNDED . 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 FOR INFORMATION OF THE UNDERTAKINGS TO WHOM THE MEASURE IS ADDRESSED OR OF OTHER PARTIES TO WHOM IT IS OF DIRECT AND INDIVIDUAL CONCERN WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .
|
35 The care allowance thus takes the form of financial aid which enables the standard of living of persons requiring care to be improved as a whole, so as to compensate for the additional expense brought about by their condition.
|
31. As regards that taxation and as was stated at paragraph 27 of this judgment, Article 11A(1)(c) of the Sixth Directive provides that the taxation must be made on the basis of the full cost to the taxable person of providing the services at issue (see Charles and Charles-Tijmens , paragraph 25, and Case C‑460/07 Puffer [2009] ECR I‑3251, paragraph 41).
|
25. It follows from Article 6(2)(a) of the Sixth Directive that when the input VAT paid on goods forming part of the assets of a business is wholly or partly deductible, their use for the private purposes of the taxable person or of his staff or for purposes other than those of his business is treated as a supply of services for consideration. That use, which is therefore a taxable transaction within the meaning of Article 17(2) of that directive is, under Article 11A(1)(c) thereof, taxed on the basis of the cost of providing the services (see, to that effect, Lennartz , paragraph 26, Bakcsi, paragraph 30, and Seeling , paragraph 42).
|
38 As has already been pointed out by the Court in its judgment in Van Bennekom, supra, to which, moreover, the national court refers, although the external form given to a product may serve as strong evidence of the seller' s or manufacturer' s intention to market the product as a medicinal product, it cannot be the sole or conclusive evidence, since otherwise certain food products which are traditionally presented in a similar form to pharmaceutical products would also be covered.
|
32. Although that provision mentions only signs which are capable of being perceived visually, are two-dimensional or three-dimensional and can thus be represented by means of letters or written characters or by a picture, it is however clear from the language of both Article 2 of the Directive and the seventh recital in the preamble thereto, which refers to a ‘list [of] examples’ of signs which may constitute a trade mark, that that list is not exhaustive. Accordingly, the Court has held previously that Article 2 of the Directive, although it does not mention signs which are not in themselves capable of being perceived visually, such as sounds or smells, does not expressly exclude them ( Sieckmann , paragraphs 43 and 44, and Case C‑283/01 Shield Mark [2003] ECR I‑14313, paragraphs 34 and 35).
|
44. However, as is clear from the language of both Article 2 of the Directive and the seventh recital in the preamble thereto, which refers to a " list [of] examples" of signs which may constitute a trade mark, that list is not exhaustive. Consequently, that provision, although it does not mention signs which are not in themselves capable of being perceived visually, such as odours, does not, however, expressly exclude them.
|
40. It is common ground that those objectives can be achieved only if the compensatory aid is paid in full to the farmers affected by the consequences of the price reductions (see Kellinghusen and Ketelsen , cited above, paragraph 19).
|
44. In that regard, while the Court has already held that the overriding reasons relating to the public interest capable of justifying restrictions on the freedom to provide services include the protection of workers ( Arblade and Others , paragraph 36), it must be observed that Community law does not preclude Member States from applying their legislation, or collective labour agreements entered into by both sides of industry, to any person who is employed, even temporarily, within their territory, no matter in which country the employer is established, just as Community law does not prohibit Member States from enforcing those rules by appropriate means, when it is established that the protection conferred thereunder is not guaranteed by identical or essentially similar obligations by which the undertaking is already bound in the Member State where it is established ( Commission v Luxembourg , paragraph 21).
|
36 The overriding reasons relating to the public interest which have been acknowledged by the Court include the protection of workers (see Webb, cited above, paragraph 19, Joined Cases 62/81 and 63/81 Seco v EVI [1982] ECR 223, paragraph 14, and Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 18), and in particular the social protection of workers in the construction industry (Guiot, paragraph 16).
|
54. There is therefore no need to examine the Commission’s argument that the framework decision should in any event be annulled in part in so far as Articles 5(2), 6 and 7 leave the Member States free also to provide for penalties other than criminal penalties, even to choose between criminal penalties and other penalties, matters allegedly falling undeniably within the Community’s competence.
|
100
That said, where it is clear, without any need for the parties to adduce additional evidence in that regard, that the General Court infringed, in a sufficiently serious manner, its obligation to adjudicate on the case within a reasonable time, the Court of Justice may note that fact (see, to that effect, judgments of 9 October 2014 in ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 59, and of 12 November 2014 in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 20).
|
59. Cela étant, dès lors qu’il est manifeste, sans que soit nécessaire la production par les parties d’éléments supplémentaires à cet égard, que le Tribunal a violé de manière suffisamment caractérisée son obligation de juger l’affaire dans un délai raisonnable, la Cour peut le relever (arrêt Deltafina, C‑578/11, EU:C:2014:1742, point 90).
|
55. The second subparagraph of Article 22(2) of Regulation No 1408/71 lays down two conditions which, if both satisfied, render mandatory grant by the competent institution, regardless of the Member State to which it belongs, of the prior authorisation to which that provision refers (see Inizan , paragraph 37).
|
20 It follows that, for in order to calculate the independent benefit, account must be taken of periods of insurance determined under national legislation alone, in particular periods treated as periods of insurance by that legislation, provided however that Articles 48 to 51 of the Treaty are observed (see, to this effect, Case C-302/90 Faux [1991] ECR I-4875, paragraphs 25 to 28).
|
25 It is true, as the Court has pointed out on several occasions (see, for example, the judgment in Case 14/67 Landesversicherungsanstalt Rheinland-Pfalz v Welchner [1967] ECR 331) and as INAMI has argued, that both Regulation No 3 (Article 1(p)) and Regulation No 1408/71 (Article 1(r) ), applicable in the main proceedings, state that "insurance periods" mean periods defined or treated as such by the legislation under which they were completed.
|
38. Il convient de rappeler que, dans le cadre d’une procédure en manquement en vertu de l’article 258 TFUE, il incombe à la Commission d’établir l’existence du manquement allégué. C’est elle qui doit apporter à la Cour les éléments nécessaires à la vérification par celle-ci de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (voir, en ce sens, arrêts Commission/Italie, C‑297/08, EU:C:2010:115, point 101 et jurisprudence citée, ainsi que Commission/Grèce, C‑677/13, EU:C:2014:2433, point 57 et jurisprudence citée).
|
26. In the absence of EU legislation on the recovery of national taxes unduly levied, it is for each Member State, in accordance with the principle of procedural autonomy, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions at law for safeguarding the rights which taxpayers derive from EU law (see, to that effect, judgments in Rewe-Zentralfinanz and Rewe-Zentral , 33/76, EU:C:1976:188, paragraph 5; Aprile , C‑228/96, EU:C:1998:544, paragraph 18; and Test Claimants in the Franked Investment Income Group Litigation , C‑362/12, EU:C:2013:834, paragraph 31).
|
5 THE PROHIBITION LAID DOWN IN ARTICLE 13 OF THE TREATY AND THAT LAID DOWN IN ARTICLE 13 OF REGULATION NO 159/66/EEC HAVE A DIRECT EFFECT AND CONFER ON CITIZENS RIGHTS WHICH THE NATIONAL COURTS ARE REQUIRED TO PROTECT .
APPLYING THE PRINCIPLE OF COOPERATION LAID DOWN IN ARTICLE 5 OF THE TREATY , IT IS THE NATIONAL COURTS WHICH ARE ENTRUSTED WITH ENSURING THE LEGAL PROTECTION WHICH CITIZENS DERIVE FROM THE DIRECT EFFECT OF THE PROVISIONS OF COMMUNITY LAW .
ACCORDINGLY , IN THE ABSENCE OF COMMUNITY RULES ON THIS SUBJECT , IT IS FOR THE DOMESTIC LEGAL SYSTEM OF EACH MEMBER STATE TO DESIGNATE THE COURTS HAVING JURISDICTION AND TO DETERMINE THE PROCEDURAL CONDITIONS GOVERNING ACTIONS AT LAW INTENDED TO ENSURE THE PROTECTION OF THE RIGHTS WHICH CITIZENS HAVE FROM THE DIRECT EFFECT OF COMMUNITY LAW , IT BEING UNDERSTOOD THAT SUCH CONDITIONS CANNOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR ACTIONS OF A DOMESTIC NATURE .
WHERE NECESSARY , ARTICLES 100 TO 102 AND 235 OF THE TREATY ENABLE APPROPRIATE MEASURES TO BE TAKEN TO REMEDY DIFFERENCES BETWEEN THE PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION IN MEMBER STATES IF THEY ARE LIKELY TO DISTORT OR HARM THE FUNCTIONING OF THE COMMON MARKET .
IN THE ABSENCE OF SUCH MEASURES OF HARMONIZATION THE RIGHT CONFERRED BY COMMUNITY LAW MUST BE EXERCISED BEFORE THE NATIONAL COURTS IN ACCORDANCE WITH THE CONDITIONS LAID DOWN BY NATIONAL RULES .
THE POSITION WOULD BE DIFFERENT ONLY IF THE CONDITIONS AND TIME-LIMITS MADE IT IMPOSSIBLE IN PRACTICE TO EXERCISE THE RIGHTS WHICH THE NATIONAL COURTS ARE OBLIGED TO PROTECT .
THIS IS NOT THE CASE WHERE REASONABLE PERIODS OF LIMITATION OF ACTIONS ARE FIXED .
THE LAYING DOWN OF SUCH TIME-LIMITS WITH REGARD TO ACTIONS OF A FISCAL NATURE IS AN APPLICATION OF THE FUNDAMENTAL PRINCIPLE OF LEGAL CERTAINTY PROTECTING BOTH THE TAX-PAYER AND THE ADMINISTRATION CONCERNED .
|
23. Selon une jurisprudence constante, il découle des exigences tant de l’application uniforme du droit de l’Union que du principe d’égalité que les termes d’une disposition du droit de l’Union qui ne comporte aucun renvoi exprès au droit des États membres pour déterminer son sens et sa portée doivent normalement trouver, dans toute l’Union, une interprétation autonome et uniforme qui doit être recherchée en tenant compte du contexte de la disposition et de l’objectif poursuivi par la réglementation en cause (voir, notamment, arrêt du 27 juin 2013, Malaysia Dairy Industries, C‑320/12, point 25 et jurisprudence citée).
|
14 It is true that, in the case of contracts of employment, the Court has ruled that the place of performance of the relevant obligation should be determined by reference, not to the applicable national law in accordance with the conflict rules of the court seised, but to uniform criteria which it is for the Court to lay down on the basis of the scheme and the objectives of the Brussels Convention (Mulox IBC, paragraph 16). These criteria lead to the choice of the place where the employee actually performs the work covered by the contract with his employer (Mulox IBC, paragraph 20).
|
20 It follows that in relation to contracts of employment, the place of performance of the relevant obligation must be interpreted as meaning, for the purposes of Article 5(1) of the Convention, the place where the employee actually performs the work covered by the contract with his employer.
|
29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
|
15 According to the case-law of the Court of Justice, a regulation can validly enter into force on the date of its publication (see, inter alia, the judgment in Case 57/72 Westzucker [1973] ECR 321, paragraph 19). The Court has also held that, in the absence of evidence to the contrary, a regulation is to be regarded as published throughout the Community on the date borne by the Official Journal of the European Communities containing the text of that regulation (Case 98/78 Racke [1979] ECR 69, paragraph 17). The Court has stated in this respect that, should evidence be produced indicating that that date does not correspond to the date on which the issue was in fact available, in the version in the language of the party, at the Office of Official Publications of the European Communities at Luxembourg, regard must be had to the later date (Racke, cited above, paragraph 15, and Case C-370/96 Covita [1998] ECR I-7711, paragraph 27).
|
27 None the less, it should be observed that, as the Advocate General states at point 31 of his Opinion, it cannot be accepted that a trader such as Covita was aware that Regulation No 1591/92 had been adopted if it proves that the Official Journal of 23 June 1992 was not available on that date in its Greek language version at the Office for Official Publications of the European Communities, situated in Luxembourg. If evidence is produced that actual publication of the Official Journal was delayed, regard must be had to the date on which the issue was actually available (Case 98/78 Racke v Hauptzollamt Mainz [1979] ECR 69, paragraph 15).
|
39. The labelling, as defined in Article 1(3)(a) of that directive, is composed of any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on its packaging. Some of those items may in practice be misleading, erroneous, ambiguous, contradictory or incomprehensible.
|
95. It should be added that, according to settled case-law, the fact that a Member State seeks to approximate, by unilateral measures, the conditions of competition in a particular sector of the economy to those prevailing in other Member States cannot deprive the measures in question of their character as aid (Case C‑298/00 P Italy v Commission , paragraph 61 and case-law cited; Heiser , paragraph 54).
|
54. It should be borne in mind that, according to settled case-law, the fact that a Member State seeks to approximate, by unilateral measures, the conditions of competition in a particular sector of the economy to those prevailing in other Member States cannot deprive the measures in question of their character as aid (see, inter alia, Case C-372/97 Italy v Commission [2004] ECR I-0000, paragraph 67, and the case-law cited).
|
51. Cet objectif, ainsi que la Cour l’a déjà souligné, a notamment pour objet de sauvegarder la symétrie entre le droit d’imposition des bénéfices et la faculté de déduction des pertes (voir arrêts précités Lidl Belgium, point 33, et Philips Electronics UK, point 24), en particulier afin de prévenir que le contribuable choisisse librement l’État membre où faire valoir de tels bénéfices ou de telles pertes (voir, en ce sens, arrêts précités Oy AA, point 56, et Lidl Belgium, point 34).
|
48. In that regard, it should be borne in mind that, in some situations, the Courts of the European Union may take into account reports from international non-governmental organisations (see, to that effect, judgment in N.S. and Others , C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 90 and 91). A fortiori , it may take into account a report from an international organisation like the OSCE.
|
91. Thus, and contrary to the submissions of the Belgian, Italian and Polish Governments, according to which the Member States lack the instruments necessary to assess compliance with fundamental rights by the Member State responsible and, therefore, the risks to which the asylum seeker would be exposed were he to be transferred to that Member State, information such as that cited by the European Court of Human Rights enables the Member States to assess the functioning of the asylum system in the Member State responsible, making it possible to evaluate those risks.
|
73. In those circumstances, the examination of alternative solutions, which is a requirement set out in Article 6(4) of the Habitats Directive, cannot constitute a factor which the competent national authorities are obliged to take into account when they undertake the appropriate assessment laid down in Article 6(3) of that directive (see, to that effect, Commission v Netherlands , paragraph 28).
|
32. As regards, in the first place, the question whether the directive obliges Member States to adopt framework legislation in order to implement the requirements of the directive in national law, it should be noted that, according to settled case-law, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues (see, inter alia, Case C‑478/99 Commission v Sweden [2002] ECR I‑4147, paragraph 15, and Case C‑233/00 Commission v France [2003] ECR I‑6625, paragraph 75).
|
15 In that respect, it should be recalled that, according to settled case-law, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues (see in particular Case C-336/97 Commission v Italy [1999] ECR I-3771, paragraph 19, and Case C-97/00 Commission v France [2001] ECR I-2053, paragraph 9).
|
114 Whereas Article 61 of the EC Treaty (now, after amendment, Article 51 EC) precludes the Treaty provisions on the freedom to provide services from applying to transport services, the latter being governed by the provisions of the title concerning transport, there is no article in the Treaty which precludes its provisions on freedom of establishment from applying to transport.
|
43. In the third place, with respect to the judgment in Pammer and Hotel Alpenhof , the Court held in paragraphs 86 and 87 of that judgment, in response to the arguments put forward by Hotel Alpenhof to the effect that Article 15(1)(c) of the Brussels I Regulation could not apply because the contract with the consumer had been concluded on the spot and not at a distance, that those arguments were ineffective in that case because, on the facts, the hotel room had been reserved and the reservation confirmed at a distance.
|
87. In that regard, the fact that the keys are handed over to the consumer and that payment is made by him in the Member State in which the trader is established does not prevent that provision from applying if the reservation was made and confirmed at a distance, so that the consumer became contractually bound at a distance.
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
33. It should be recalled in that context that, according to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures, and that, for that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The European Convention on Human Rights and Fundamental Freedoms has special significance in that respect (see, inter alia, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37; Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 25; Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 71).
|
71. According to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, inter alia , Case C-260/89 ERT [1991] ECR I-2925, paragraph 41; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37, and Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 25).
|
33. By contrast, the interpretation of Article 18 of Directive 96/67 provided by the Italian Government, particularly as regards the taking into account of social considerations, would make the entry of new suppliers of services in the groundhandling market unduly difficult, as they would be obliged to take over the staff employed by the previous supplier. As a result, the rational use of airport infrastructures and the reduction of the costs of the services charged to users would be impaired.
|
En effet, ainsi que l’a rappelé le Tribunal aux points 381 et 383 de l’arrêt attaqué, il est de jurisprudence constante de
la Cour, d’une part, que, afin de vérifier si une filiale détermine de façon autonome son comportement sur le marché, il convient
de prendre en considération l’ensemble des éléments pertinents relatifs aux liens économiques, organisationnels et juridiques
qui unissent cette filiale à la société mère, lesquels peuvent varier selon les cas et ne sauraient donc faire l’objet d’une
énumération exhaustive. D’autre part, lorsqu’une société mère et sa filiale font partie d’une seule entreprise au sens de
l’article 101 TFUE, c’est non pas nécessairement une relation d’instigation relative à l’infraction entre la société mère
et la filiale, ni, à plus forte raison, une implication de la première dans ladite infraction, qui habilite la Commission
à adresser la décision imposant des amendes à la société mère, mais le fait que les sociétés concernées constituent une seule
entreprise, au sens de l’article 101 TFUE (arrêt du 29 septembre 2011, Elf Aquitaine/Commission, C‑521/09 P, EU:C:2011:620,
points 58 et 88).
|
58. It also emerges from the case-law that, in order to ascertain whether a subsidiary determines its conduct on the market independently, account must be taken of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, to that effect, Akzo Nobel and Others v Commission , paragraphs 73 and 74).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
60. Nevertheless, according to case-law that is also well-established, it is incompatible with the rules governing the right of deduction under Directive 2006/112 to impose a penalty, in the form of refusal of that right, on a taxable person who did not know, and could not have known, that the transaction concerned was connected with fraud committed by the supplier, or that another transaction forming part of the chain of supply prior or subsequent to the transaction carried out by the taxable person was vitiated by VAT fraud (see, inter alia, Joined Cases C-354/03, C-355/03 and C-484/03 Optigen and Others [2006] ECR I-483, paragraphs 52 and 55; Kittel and Recolta Recycling , paragraphs 45, 46 and 60; Mahagében and Dávid , paragraph 47; and Bonik , paragraph 41).
|
47. By contrast, it is incompatible with the rules governing the right to deduct under that directive, as noted in paragraphs 37 to 40 of the present judgment, to impose a penalty, in the form of refusing that right to a taxable person who did not know, and could not have known, that the transaction concerned was connected with fraud committed by the supplier, or that another transaction forming part of the chain of supply prior or subsequent to that transaction carried out by the taxable person was vitiated by VAT fraud (see, to that effect, Optigen and Others , paragraphs 52 and 55, and Kittel and Recolta Recycling , paragraphs 45, 46 and 60).
|
58 It follows from a consistent line of decisions that in the context of the organisation of the powers of the Community the choice of a legal basis for a measure must rest on objective factors which are amenable to judicial review. Those factors include in particular the aim and the content of the measure (see, in particular, Case C-269/97 Commission v Council [2000] ECR I-2257, paragraph 43).
|
21
In order to determine whether a person should be considered to be normally employed in two or more Member States or, conversely, whether they work merely occasionally in several Member States, regard must be had, in particular, to the duration of periods of activity and to the nature of the employment as defined in the contractual documents, as well as to the actual work performed, where appropriate (see, to that effect, judgments of 12 July 1973, Hakenberg, 13/73, EU:C:1973:92, paragraph 20, and of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 44).
|
20 FOR THIS PURPOSE NOT ONLY MUST THE DURATION OF PERIODS OF ACTIVITY BE CONSIDERED, BUT ALSO THE NATURE OF THE EMPLOYMENT IN QUESTION .
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
32. In that regard, it is apparent from the case-law of the Court of Justice that an error of law committed by the General Court does not invalidate the judgment under appeal if the operative part of that judgment appears to be well founded on other legal grounds (see, to that effect, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 47, and Case C‑352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I‑2359, paragraph 136).
|
47 The error of law thus committed by the Court of First Instance does not, however, invalidate its judgment, since, as the Commission has conceded, the decision in question was of direct and individual concern to the complainants. In finding in its decision that the investigation had revealed no grounds for concluding that State aid existed within the meaning of Article 92 of the Treaty, the Commission implicitly refused to initiate the procedure under Article 93(2). It follows from the judgments of the Court cited in paragraphs 40 and 41 above that, in such a situation, the persons intended to benefit from the procedural guarantees afforded by Article 93(2) may secure compliance therewith only if they are able to challenge the decision in question before the Community judicature under the fourth paragraph of Article 173 of the Treaty. That principle is of equal application, whether the ground on which the decision is taken is that the Commission regards the aid as compatible with the common market or that, in its view, the very existence of aid must be discounted.
|
37 Such a restriction of the freedom to provide services is justifiable only if it is necessary in order to pursue, effectively and by appropriate means, an objective in the public interest.
|
34
Thus, an interpretation by the Court of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way in order to ensure that internal situations and situations governed by EU law are treated in the same way (see, to that effect, judgments of 18 October 2012, Nolan, C‑583/10, EU:C:2012:638, paragraph 47; of 7 November 2013, Romeo, C‑313/12, EU:C:2013:718, paragraphs 22 and 23; and of 14 January 2016, Ostas celtnieks, C‑234/14, EU:C:2016:6, paragraph 20).
|
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).
|
27
It should be noted that, where the wording of a provision of EU law is unclear, account should be taken of the context of that provision and of its objectives (judgment in PPG and SNF v ECHA, C‑625/11 P, EU:C:2013:594, paragraph 34 and the case-law cited).
|
En effet, conformément à la jurisprudence de la Cour, un règlement prévoyant des mesures restrictives doit être interprété
à la lumière non seulement de la décision adoptée dans le cadre de la politique étrangère et de sécurité commune, visée à
l’article 215, paragraphe 2, TFUE, mais également du contexte historique dans lequel s’inscrivent les dispositions adoptées
par l’Union et dans lesquelles ce règlement s’insère (voir, en ce sens, arrêt du 28 novembre 2013, Conseil/Manufacturing Support
& Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, point 75, ainsi que ordonnance du 1er décembre 2015, Georgias e.a./Conseil et Commission, C‑545/14 P, EU:C:2015:791, point 33). Il en va de même d’une décision
adoptée dans le domaine de la politique étrangère et de sécurité commune, qui doit être interprétée en prenant en considération
le contexte dans lequel elle s’insère (arrêt du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 78).
|
78
According to the Court’s case-law, a regulation providing for restrictive measures must be interpreted in the light not only of the decision adopted in the framework of the Common Foreign and Security Policy referred to in Article 215(2) TFEU, but also of the historical context in which the provisions were adopted by the European Union, that regulation being one such provision (see, to that effect, judgment in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 75, and order in Georgias and Others v Council and Commission, C‑545/14 P, EU:C:2015:791, point 33). The same applies to a decision adopted in the area of the common foreign and security policy, which must be interpreted taking into account the context in which it is adopted.
|
38. The distributor resells the phonecards in its own name and on its own behalf and, as regards at least part of that resale, also uses other intermediary operators such as wholesalers or retailers. In addition, the amount which the end user actually pays at the time of purchasing the phonecard from the distributor or from an intermediary retailer is not necessarily the same as the price paid by the distributor to the telecommunications services operator or the face value of the card, and the telecommunications services operator is not in a position to know that amount. Moreover, the identity of the end user of a phonecard is not necessarily known at the time of the payment made by the distributor to the telecommunications services operator, in particular where the card is to be resold by another intermediary operator.
|
49 Suffice it to say, in any event, that the Court held in Case 22/77 Fonds National de Retraite des Ouvriers Mineurs v Mura [1977] 1699, paragraphs 9 and 10, on the one hand, that if the application of Community provisions causes migrant workers to obtain an advantage over non-migrant workers, this is not, for all that, discriminatory, since migrant workers are not in a situation comparable to that of workers who have never left their own country and, on the other hand, that any differences which may exist to the benefit of migrant workers do not result from the interpretation of Community law but rather from the lack of any common social security system or of any harmonization of the existing national schemes, which cannot be mitigated by the mere coordination at present practised.
|
10 ANY DIFFERENCES WHICH MAY EXIST TO THE BENEFIT OF MIGRANT WORKERS DO NOT RESULT FROM THE INTERPRETATION OF COMMUNITY LAW BUT RATHER FROM THE LACK OF ANY COMMON SOCIAL SECURITY SYSTEM OR OF ANY HARMONIZATION OF THE EXISTING NATIONAL SCHEMES , WHICH CANNOT BE MITIGATED BY THE MERE CO-ORDINATION AT PRESENT PRACTISED .
|
41. However, since the fact that the newspaper publisher proceeds with such publications which are liable to promote – possibly indirectly – the products and services of a third party is not liable to alter significantly the economic behaviour of the consumer in his decision to purchase or take possession of the (free) newspaper in question (on this aspect see Mediaprint Zeitungs- und Zeitschriftenverlag , paragraphs 44 and 45), such a publishing practice is not in itself liable to be classified as a ‘commercial practice’ within the meaning of Article 2(d) of Directive 2005/29.
|
12. It must be borne in mind in this regard that, as follows from settled case-law, partial annulment of a Community act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (see, inter alia, Case C-29/99 Commission v Council [2002] ECR I-11221, paragraphs 45 and 46; Case C-378/00 Commission v Parliament and Council [2003] ECR I‑937, paragraph 30; and Case C-239/01 Germany v Commission [2003] ECR I‑10333, paragraph 33).
|
46. The elements whose omission would render the decision unlawful are not, by definition, set out therein and are accordingly separable from its provisions. The annulment of the third paragraph of the declaration for failure to refer to certain articles of the Convention would in no way affect the legal scope of the provisions on which the Council has already taken a view. Such an annulment therefore would not alter the substance of the contested decision. Accordingly, those elements may be severed from the remainder of the contested decision.
|
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.
|
30. On the other hand, it is apparent from paragraphs 56 to 63 of the judgment in Italy v Council , in which the Court examined the plea alleging lack or inadequacy of a statement of the reasons on which Regulation No 1361/98 was based in the light of Article 190 of the EC Treaty (now Article 253 EC), that that reasoning was held to be in keeping with the requirements of that provision. Indeed, in paragraph 63 of that judgment, the Court found that, in the context of the set of rules in issue and the way in which the market concerned had developed, the statement of reasons given in Regulation No 1361/98 for the classification of Italy as a non-deficit area for the marketing year 1998/99, whilst very succinct, sufficiently fulfilled the requirements laid down in the Court’s case-law regarding the statement of reasons.
|
63 It follows from the foregoing that, in the context of the set of rules in issue and the way in which the market concerned has developed, the statement of reasons given in Regulation No 1361/98 for the classification of Italy as a non-deficit area for the 1998/99 marketing year, whilst very succinct, sufficiently fulfils the requirements laid down in the Court's case-law regarding the statement of reasons.
The complaint alleging the absence of a statement of reasons for a change in forecasting method
Arguments of the parties
|
32FURTHERMORE , OPPORTUNITIES FOR PROMOTION DO EXIST .
|
102. In particular, as regards the application of the private market economy investor test, the Court has held that, where the Commission examines whether a State acted as a shareholder and whether, therefore, the private investor test is applicable in the circumstances of the case, it is for the Commission to carry out a global assessment, taking into account, in addition to the evidence provided by that Member State, all other relevant evidence enabling it to determine whether the Member State took the measure in question in its capacity as shareholder or as a public authority. The nature and subject-matter of that measure may be relevant in that regard, as may its context, the objective pursued and the rules to which the measure is subject (see, to that effect, judgment in Commission v EDF , C‑124/10 P, EU:C:2012:318, paragraph 86).
|
86. If the Member State concerned provides the Commission with the requisite evidence, it is for the Commission to carry out a global assessment, taking into account — in addition to the evidence provided by that Member State — all other relevant evidence enabling it to determine whether the Member State took the measure in question in its capacity as shareholder or as a public authority. In particular, as the General Court held in paragraph 229 of the judgment under appeal, the nature and subject-matter of that measure are relevant in that regard, as is its context, the objective pursued and the rules to which the measure is subject.
|
79. Plus particulièrement, la Cour a déjà eu l’occasion de juger que l’adoption de mesures provisoires pouvait être nécessaire afin d’assurer la pleine efficacité du droit de l’Union (voir en ce sens, notamment, arrêts Factortame e.a., C‑213/89, EU:C:1990:257, point 21, ainsi que Križan e.a., C‑416/10, EU:C:2013:8, point 107 et jurisprudence citée).
|
31. Additionally, in so far as Regulation No 44/2001 replaces, in the relations between Member States, the Brussels Convention, the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of the regulation whenever the provisions of those instruments may be regarded as equivalent ( Zuid-Chemie , paragraph 18, and eDate Advertising and Others , paragraph 39).
|
39. Second, in so far as the Regulation now replaces, in the relations between Member States, the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of the Regulation whenever the provisions of those Community instruments may be regarded as equivalent ( Zuid‑Chemie , paragraph 18).
|
56. À cet égard, il ressort d’une jurisprudence constante que la date de référence pour l’application de l’article 108, paragraphe 2, deuxième alinéa, TFUE est celle prévue dans la décision dont l’inexécution est contestée ou, le cas échéant, celle que la Commission a fixée par la suite (arrêt Commission/Italie, EU:C:2013:832, point 30 et jurisprudence citée).
|
17 It is thus clear from the settled case-law of the Court that activities pursued as public authorities within the meaning of the first subparagraph of Article 4(5) of the Sixth Directive are those engaged in by bodies governed by public law under the special legal regime applicable to them and do not include activities pursued by them under the same legal conditions as those that apply to private economic operators (see in particular Case C-276/97 Commission v France, paragraph 40, Case C-358/97 Commission v Ireland, paragraph 38, Case C-359/97 Commission v United Kingdom, paragraph 50, Case C-408/97 Commission v Netherlands, paragraph 35, and Case C-260/98 Commission v Greece, paragraph 35, not yet reported in the ECR).
|
35 As regards the latter condition, it is clear from the settled case-law of the Court of Justice (Joined Cases 231/87 and 129/88 Ufficio Distrettuale delle Imposte Dirette di Fiorenzuola and Others v Comune di Carpaneto Piacentino and Others [1989] ECR 3233, paragraph 16; Case C-4/89 Comune di Carpaneto Piacentino and Others v Ufficio Provinciale Imposta sul valore aggiunto di Piacenza [1990] ECR I-1869, paragraph 8, and Case C-247/95 Finanzamt Augsburg-Stadt v Marktgemeinde Welden [1997] ECR I-779, paragraph 17) that activities pursued as public authorities within the meaning of the first paragraph of Article 4(5) of the Sixth Directive are those engaged in by bodies governed by public law under the special legal regime applicable to them and do not include activities pursued by them under the same legal conditions as those that apply to private traders.
|
24. The borrowers also discontinued their payments to the Bank.
|
33. It is settled case-law that restrictions on the 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).
|
25. Restrictions on freedom of establishment which are applicable without discrimination on grounds of nationality may be justified by overriding reasons in 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 (see Hartlauer , paragraph 44).
|
27. While that is the position where tax evasion is committed by the taxable person himself, the same is also true where a taxable person knew, or should have known, that, by his acquisition, he was taking part in a transaction connected with the evasion of VAT. He must therefore, for the purposes of Directive 2006/112, be regarded as a participant in that evasion, whether or not he profits from the resale of the goods or the use of the services in the context of the taxable transactions subsequently carried out by him (see Bonik , paragraphs 38 to 39 and the case-law cited).
|
58. Such an obligation might consist in a simple prior declaration which would enable the Netherlands authorities to check the particulars provided and to take the necessary measures in the event that the situation of the workers concerned is unlawful. In addition, that obligation could take the form of a succinct communication of the documents required, particularly when the length of the posting does not allow such a check to be effectively carried out (see judgment in Commission v Germany , EU:C:2006:49, paragraph 41).
|
41. However, as the Advocate General observed in point 27 of his Opinion, a requirement that the service provider furnishes a simple prior declaration certifying that the situation of the workers concerned is lawful, particularly in the light of the requirements of residence, work visas and social security cover in the Member State where that provider employs them, would give the national authorities, in a less restrictive but as effective a manner as checks in advance of posting, a guarantee that those workers’ situation is lawful and that they are carrying on their main activity in the Member State where the service provider is established (see, to that effect, Commission v Luxembourg , paragraph 46). Such a requirement would enable the national authorities to check that information subsequently and to take the necessary measures if those workers’ situation was not regular. Such a requirement could in addition take the form of a succinct communication of the documents required, particularly when the length of the posting does not allow such a check to be effectively carried out.
|
33
In that regard, it should be noted that it is clear from Article 3(u) of Directive 2003/87 that an installation that produces electricity for sale to third parties and in which none of the activities listed in Annex I to that directive, other than fuel combustion, have taken place must be classified as an electricity generator.
|
34. First, Article 5(1) and (2) of Directive 89/104 must be interpreted as covering the use of a sign identical with, or similar to, the trade mark in respect of goods marketed or services supplied by the third party (see, to that effect, as regards Article 5(1)(a) of Directive 89/104, Case C‑48/05 Adam Opel [2007] ECR I‑1017, paragraph 28).
|
28. Apart from that specific case of use of a trade mark by a third-party provider of services having as subject-matter the products bearing that trade mark, Article 5(1)(a) of the directive must be interpreted as covering the use of a sign identical to the trade mark in respect of goods marketed or services supplied by the third party which are identical to those in respect of which the trade mark is registered.
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
40. That division of powers results from the fact that the claim and the instrument permitting enforcement are established on the basis of the law in force in the Member State in which the applicant authority is situated, whilst, for enforcement measures in the Member State in which the requested authority is situated, the latter applies, pursuant to Articles 5 and 6 of Directive 76/308, the provisions which its national law lays down for corresponding measures, that authority being the best placed to judge the legality of the measure according to its national law (see, by analogy, Case C‑184/05 Twoh International [2007] ECR I‑7897, paragraph 36, and Case C-318/07 Persche [2009] ECR I‑0000, paragraph 63).
|
36. The information which the mutual assistance directive allows the competent authorities of a Member State to request is in fact all the information which appears to them to be necessary in order to ascertain the correct amount of tax in relation to the legislation which they have to apply themselves. That directive does not in any way affect the competence of those authorities to assess in particular whether the conditions to which that legislation subjects the exemption of an operation are fulfilled (see, by analogy, Vestergaard , paragraph 28).
|
44. In those circumstances, the General Court cannot be criticised for not having applied the case-law arising out of the judgment in T.I.M.E. ART v OHIM (C‑171/06 P, EU:C:2007:171) in the judgment under appeal.
|
112 In reaching that conclusion, the Court found that the sectoral pension funds in question in the cases mentioned in the paragraph above themselves determined the amount of the contributions and benefits, that they operated in accordance with the principle of capitalisation and that, by contrast with the benefits provided by bodies charged with the management of compulsory social security schemes of the kind in point in Poucet and Pistre, the amount of benefits provided by the funds depended on the performance of the investments which they made and in respect of which they were subject, like an insurance company, to supervision by the Insurance Board. Furthermore, the fact that a sectoral pension fund was in certain circumstances required or empowered to exempt undertakings from membership meant that it was carrying on an economic activity in competition with insurance companies (see Albany, paragraphs 81 to 84, Brentjens', paragraphs 81 to 84, and Drijvende Bokken, paragraphs 71 to 74).
|
84 It follows that a sectoral pension fund of the kind at issue in the main proceedings engages in an economic activity in competition with insurance companies.
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
60 It is settled case-law that a provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see, in particular, Case 12/86 Demirel [1987] ECR 3719, paragraph 14; Case C-18/90 Kziber [1991] ECR I-199, paragraph 15, and Case C-162/96 Racke [1998] ECR I-3655, paragraph 31). In Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraphs 14 and 15, the Court made it clear that the same conditions apply in determining whether the provisions of a decision of the EEC-Turkey Association Council may have direct effect.
|
31 The Court has consistently held that a provision of an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure (see, in particular, Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, paragraph 14).
|
87
The background to Directive 2012/30 is the attainment of freedom of establishment in the internal market, and its principal objective is the protection of the interests of shareholders and others. The directive is intended to reassure investors that their rights will be respected throughout the internal market by the governing bodies of the companies in which they have invested, particularly when a company is formed and when its share capital is increased and reduced. Consequently, the measures provided for by Directive 2012/30 in order to guarantee that protection relate to the normal operation of public limited liability companies.
|
48. In that case, as such a project has been authorised before the expiry of the time-limit for transposing the Habitats Directive, it would not be subject to the requirements relating to the procedure for prior assessment of the implications of the project for the site concerned, set out in that directive (see, to that effect, Case C-209/04 Commission v Austria [2006] ECR I-2755, paragraphs 53 to 62).
|
61. Accordingly, the procedure for authorisation of the project for the construction of the S 18 carriageway was formally initiated prior to the date of accession of the Republic of Austria to the European Union.
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
53. In this connection, the Court has already held that Member States may establish the criteria and/or thresholds necessary to determine which of the projects covered by Annex II to Directive 85/337, in its original version, are to be subject to an assessment. However, the discretion thus granted to the Member States is limited by the obligation, set out in Article 2(1) of that directive, to subject projects likely to have significant effects on the environment, particularly by virtue of their nature, size or location, to an assessment with regard to their effects (see, to that effect, Kraaijeveld and Others , paragraph 50, and judgment of 16 March 2006 in Case C‑332/04 Commission v Spain , not published in the ECR, paragraph 76). Accordingly, when establishing those thresholds and/or criteria, Member States must take account not only of the size of projects, but also of their nature and location (see, to that effect, Case C‑392/96 Commission v Ireland [1999] ECR I-5901, paragraph 65, and Commission v Spain , paragraph 76).
|
50 However, although the second paragraph of Article 4(2) of the directive confers on Member States a measure of discretion to specify certain types of projects which will be subject to an assessment or to establish the criteria or thresholds applicable, the limits of that discretion are to be found in the obligation set out in Article 2(1) that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment.
|
99. Le respect de l’obligation de motivation doit, par ailleurs, être apprécié au regard non seulement du libellé de l’acte, mais aussi de son contexte ainsi que de l’ensemble des règles juridiques régissant la matière concernée (voir, notamment, arrêts précités du 29 février 1996, Commission/Conseil, point 29; Alliance for Natural Health e.a., point 134, ainsi que Allemagne/Parlement et Conseil, point 108). En particulier, un acte est suffisamment motivé dès lors qu’il est intervenu dans un contexte connu de l’institution concernée, qui lui permet de comprendre la portée de la mesure prise (voir, en ce sens, notamment, arrêts du 29 octobre 1981, Arning/Commission, 125/80, Rec. p. 2539, point 13; du 22 juin 2004, Portugal/Commission, C‑42/01, Rec. p. I‑6079, points 69 et 70, ainsi que du 15 novembre 2012, Conseil/Bamba, C‑417/11 P, point 54).
|
33
The referring court will also have to determine whether such assets were made available to ICTS and Securitas by Portos dos Açores. In that regard, it should be recalled that the fact that the tangible assets essential to the performance of the activity at issue in the main proceedings and taken over by the new contractor did not belong to its predecessor but were merely provided by the contracting entity cannot preclude the existence of a transfer of an undertaking within the meaning of Directive 2001/23 (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraphs 38 and 39). However, only the equipment that is actually used in order to provide the security guard services, excluding the facilities that are the subject of those services, must, where appropriate, be taken into consideration for the purpose of establishing the existence of a transfer of an entity which retains its identity within the meaning of Directive 2001/23 (judgment of 29 July 2010, UGT-FSP, C‑151/09, EU:C:2010:452, paragraph 31).
|
31. As stated by the Advocate General in point 39 of her Opinion, the fact that, in the main proceedings, there was no transfer of the assets in relation to which the outsourced services were provided by the private undertakings, such as school buildings, streets, parks and civic gardens, has no bearing whatsoever on the issue. The assets which should, where appropriate, be taken into consideration are the plant, machinery and/or equipment that are actually used in order to provide the caretaking, cleaning and maintenance services.
|
122. As regards the third condition, namely the requirement for a causal link between the breach of the obligation resting on the State and the loss or damage sustained by the injured parties, it is for the national court to assess whether the loss and damage claimed flows sufficiently directly from the breach of Community law to render the State liable to make it good ( Test Claimants in the FII Group Litigation , paragraph 218 and the case-law cited there).
|
39. The European Union legislature thus replaced the conditions requiring, first, the trader to have addressed a specific invitation to the consumer or to have advertised in the State of the consumer’s domicile and, secondly, the consumer to have taken in that State the steps necessary for the conclusion of the contract with conditions applicable to the trader alone ( Pammer and Hotel Alpenhof , paragraph 60).
|
60. The European Union legislature has thus removed the conditions requiring, first, the trader to have addressed a specific invitation to the consumer or to have advertised in the State of the consumer’s domicile and, second, the consumer to have taken in that State the steps necessary for the conclusion of the contract, replacing them with conditions applicable to the trader alone. The trader must pursue its commercial activities in the Member State of the consumer’s domicile or, by any means, direct such activities to that Member State or to several States including that Member State, and the contract must fall within the scope of such activities.
|
24. However, the Court has also repeatedly ruled that, although it is not its task, in proceedings brought under Article 234 EC, to rule upon the compatibility of provisions of domestic law with Community law or to interpret domestic legislation or regulations, it may nevertheless provide the national court with an interpretation of Community law on all such points as may enable that court to determine the issue of compatibility for the purposes of the case before it (see, inter alia, Case C-292/92 Hünermund and Others [1993] ECR I-6787, paragraph 8; Case C-28/99 Verdonck and Others [2001] ECR I-3399, paragraph 28; Case C‑399/98 Ordine degli Architetti and Others [2001] ECR I‑5409, paragraph 48; and Joined Cases C-285/99 a nd C-286/99 Lombardini and Mantovani [2001] ECR I-9233, paragraph 27).
|
32. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 25; Joined Cases C‑317/08 to C‑320/08 Alassini and Others [2010] ECR I‑0000, paragraph 26; and Schmelz , paragraph 29).
|
25. As regards Mr Cipolla’s pleas of inadmissibility, it should be recalled that questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑300/01 Salzmann [2003] ECR I-4899, paragraphs 29 and 31). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39, and Case C-466/04 Acereda Herrera [2006] ECR I-0000, paragraph 48).
|
38. Or, il convient de rappeler, à cet égard, que les déchets ont une nature particulière, si bien que leur accumulation, avant même qu’ils ne deviennent dangereux pour la santé, constitue, compte tenu notamment de la capacité limitée de chaque région ou localité à les recevoir, un danger pour l’environnement (arrêt Commission/Italie, C‑297/08, EU:C:2010:115, point 105).
|
45. That argument cannot be upheld. Whilst certain objects connected with the promotion at national level of culture and high-level training may constitute overriding reasons in the general interest (see, to that effect, Case C-198/89 Commission v Greece [1991] ECR I-727, and Case C-153/02 Neri [2003] ECR I‑13555, paragraph 46), the fact remains that it does not appear, in the light of the information available to the Court, that the tax exemption scheme at issue pursues such objectives or constitutes aid governed by Articles 92 and 93 of the EC Treaty. It is clear from the order for reference that Paragraph 52 of the AO is not based on the premiss that the activities pursued by charitable foundations must benefit the national general public.
|
46. However whilst the aim of ensuring high standards of university education appears legitimate to justify restrictions on fundamental freedoms, such restrictions must be suitable for securing the attainment of the objective which they pursue and must not go beyond what is necessary in order to attain it (see Case C-439/99 Commission v Italy cited above, paragraph 23).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
39. As regards the first of those two aspects, it is clear from Franzén (paragraphs 44 and 51) that, first, the selection system of a sales monopoly must be based on criteria that are independent from the origin of the products and must be transparent by providing both for an obligation to state reasons for decisions and for an independent monitoring procedure.
|
51 Fifth, traders are entitled to be told the reasons for decisions taken by the monopoly regarding the selection of beverages and their maintenance in the `basic' assortment and may challenge such decisions before a board offering every guarantee of independence.
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
57. According to settled case-law, that principle of invalidity can be relied on by anyone, and the courts are bound by it once the conditions for the application of Article 81(1) EC are met and so long as the agreement concerned does not justify the grant of an exemption under Article 81(3) EC (see on the latter point, inter alia, Case 10/69 Portelange [1969] ECR 309, paragraph 10). Since the invalidity referred to in Article 81(2) EC is absolute, an agreement which is null and void by virtue of this provision has no effect as between the contracting parties and cannot be invoked against third parties (Case 22/71 Béguelin [1971] ECR 949, paragraph 29). Moreover, it is capable of having a bearing on all the effects, either past or future, of the agreement or decision concerned (see Case 48/72 Brasserie de Haecht [1973] ECR 77, paragraph 26, and Courage and Crehan , cited above, paragraph 22).
|
10 TO TREAT A GIVEN AGREEMENT, OR CERTAIN OF ITS CLAUSES, AS AUTOMATICALLY VOID PRESUPPOSES THAT THAT AGREEMENT FALLS WITHIN THE PROHIBITION OF PARAGRAPH ( 1 ) OF THE SAID ARTICLE AND THAT IT MAY NOT BENEFIT FROM THE PROVISIONS OF PARAGRAPH ( 3 ).
|
22 THE ANSWER TO THE SECOND QEUSTION MUST THEREFORE BE THAT THE LEGALITY OF THE LEVYING OF A CHARGE FOR HEALTH CONTROLS ON FRESH MEAT IMPORTED FROM NON-MEMBER COUNTRIES CANNOT BE SUBJECT TO PROOF OF THE EXISTENCE OF COMPARABLE CHARGES IN ALL THE OTHER MEMBER STATES OF THE COMMUNITY , IF THE AMOUNT OF THE CHARGE CORRESPONDS TO THE COST OF THE CONTROLS .
|
42. In any event, the Member State in which the immovable property which is the subject of the gift is located cannot, in order to justify a restriction on the free movement of capital arising from its own legislation, rely on the possibility, beyond its control, of the donee benefiting from a similar allowance by another Member State, such as that in which the donor and the donee resided on the date of the gift, which might wholly or partly offset the loss incurred by the donee as a result of the smaller allowance when calculating the gift tax payable in the former Member State (see, by analogy, Eckelkamp and Others , paragraph 68, and Arens‑Sikken , paragraph 65).
|
68. The Member State in which the immovable property included in the estate is situated cannot, in order to justify a restriction on the free movement of capital arising from its legislation, rely on the existence of a possibility, beyond its control, of a tax credit being granted by another Member State – such as the Member State in which the person whose estate is being administered was residing at the time of death – which could, wholly or partly, offset the loss incurred by that person’s heirs as a result of the fact that, in the Member State in which the property inherited is situated, debts secured on that property are not deductible for the purposes of assessing transfer duties (see, to that effect, Arens‑Sikken , paragraph 65).
|
33 Next, it is to be noted that Article 26 of the Sixth Directive makes no reference to in-house services, and that the essential aim of that provision is to avoid the difficulties to which traders would be exposed by application of the general principles of the Sixth Directive concerning transactions involving the supply of services bought in from third parties.
|
45. So far as prevention of abuse is concerned, it follows from the case-law, in particular from Case C-212/97 Centros [1999] ECR I-1459, paragraph 24, that a Member State is entitled to take measures designed to prevent certain of its nationals from attempting, under cover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent individuals from improperly or fraudulently taking advantage of provisions of Community law.
|
24 It is true that according to the case-law of the Court a Member State is entitled to take measures designed to prevent certain of its nationals from attempting, under cover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent individuals from improperly or fraudulently taking advantage of provisions of Community law (see, in particular, regarding freedom to supply services, Case 33/74 Van Binsbergen v Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299, paragraph 13, Case C-148/91 Veronica Omroep Organisatie v Commissariaat voor de Media [1993] ECR I-487, paragraph 12, and Case C-23/93 TV 10 v Commissariaat voor de Media [1994] ECR I-4795, paragraph 21; regarding freedom of establishment, Case 115/78 Knoors [1979] ECR 399, paragraph 25, and Case C-61/89 Bouchoucha [1990] ECR I-3551, paragraph 14; regarding the free movement of goods, Case 229/83 Leclerc and Others v `Au Blé Vert' and Others [1985] ECR 1, paragraph 27; regarding social security, Case C-206/94 Brennet v Paletta [1996] ECR I-2357, `Paletta II', paragraph 24; regarding freedom of movement for workers, Case 39/86 Lair v Universität Hannover [1988] ECR 3161, paragraph 43; regarding the common agricultural policy, Case C-8/92 General Milk Products v Hauptzollamt Hamburg-Jonas [1993] ECR I-779, paragraph 21, and regarding company law, Case C-367/96 Kefalas and Others v Greece [1988] ECR I-2843, paragraph 20).
|
45. It does not follow that objectives such as the fight against crime in connection with dealing in narcotics as part of an organised group are necessarily excluded from that concept.
|
35. The Court has indeed held that the deduction of input VAT is linked to the collection of output VAT (see Case C-184/04 Uudenkaupungin kaupunki [2006] ECR I-3039, paragraph 24, and Case C-72/05 Wollny [2006] ECR I-8297, paragraph 20).
|
24. First, according to the structure of the system introduced by the Sixth Directive, input taxes on goods or services used by a taxable person for his taxable transactions may be deducted. The deduction of input taxes is linked to the collection of output taxes. Where goods or services acquired by a taxable person are used for purposes of transactions that are exempt or do not fall within the scope of VAT, no output tax can be collected or input tax deducted. However, where goods or services are used for the purposes of transactions that are taxable as outputs, deduction of the input tax on them is required in order to avoid double taxation.
|
35 Furthermore, since the effect of procedural issues is to delay the enforcement in one Contracting State of a judgment given in another Contracting State, they represent a derogation from the Convention' s object of establishing a simple and rapid machinery for the enforcement of judgments which are enforceable in the State of origin, and hence the rules relating to them must be interpreted strictly.
|
21
It follows that Regulation No 261/2004 must be interpreted as meaning that passengers of flights delayed for three hours or more must receive the same compensation as passengers whose flights are cancelled, who are re-routed under conditions which do not comply with the limits laid down in Article 5(1)(c)(iii) of Regulation No 261/2004 (judgment of 23 October 2012, Nelson and Others, C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 38).
|
38. In order to alleviate such unequal treatment, Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are the subject of long delay may receive the same compensation, namely that laid down in Article 5(1)(c)(iii) of that regulation, as passengers whose flights are cancelled (see Sturgeon and Others , paragraph 61).
|
35. D’après ce cadre réglementaire, la distinction entre les cas de figure ouvrant droit à la déduction de la TVA et ceux ouvrant droit au remboursement de celle-ci n’est opérée qu’en fonction du lieu d’établissement de l’assujetti. De même, le lieu d’établissement de l’assujetti est décisif pour distinguer les différents modes de remboursement de la TVA, à savoir d’après la huitième ou d’après la treizième directive.
|
28. In the first place, although Article 214(1) of Directive 2006/112 provides that Member States must take the measures necessary to ensure that taxable persons for VAT purposes are identified, the fact remains that, under Article 213(1) of that directive, it is for the interested party to state when his activity as a taxable person commences, changes or ceases. Furthermore, the Court has also held that it follows from the wording of Article 214(1) of that directive that Member States have a certain discretion when they adopt measures to ensure the identification of taxable persons for the purposes of VAT (judgment in Ablessio , C‑527/11, EU:C:2013:168, paragraph 22).
|
22. It must be observed that, although Article 214 of Directive 2006/112 lists the categories of persons who must be identified by an individual number, that provision does not stipulate the conditions which may be placed on the issuing of the VAT identification number. Indeed, it follows from the wording of that article and Article 213 of Directive 2006/112 that Member States have a certain discretion when they adopt measures to ensure the identification of taxable persons for the purposes of VAT.
|
48. L’exception d’irrecevabilité, prévue tant à l’article 91 du règlement de procédure de la Cour qu’à l’article 114 du règlement de procédure du Tribunal de première instance comme incident de procédure, permet, pour des raisons d’économie de procédure, de restreindre, dans une première phase, le débat et l’examen à la question de savoir si le recours en cause est recevable. Ainsi, cet incident de procédure permet d’éviter que les mémoires des parties ainsi que l’examen du juge portent sur le fond de l’affaire, bien que le recours soit irrecevable.
|
55. It also follows from settled case-law that the wording used in one language version of a Community provision cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of Community law (see Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 16; Case C‑187/07 Endendijk [2008] ECR I‑2115, paragraph 23; and Case C‑239/07 Sabatauskas and Others [2008] ECR I‑7523, paragraph 38).
|
38. It is settled case-law that the wording used in one language version of a Community provision cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement for uniform application of Community law (see Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 16, and Case C‑187/07 Endendijk [2008] ECR I‑0000, paragraph 23).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
48. A prohibition on the marketing of foodstuffs to which nutrients have been added must therefore be based on a detailed assessment of the risk alleged by the Member State invoking Article 36 of the Treaty (see Commission v Denmark , paragraph 47; and Commission v France , paragraph 54).
|
47. A prohibition on the marketing of foodstuffs to which nutrients have been added must therefore be based on a detailed assessment of the risk alleged by the Member State invoking Article 30 EC (see, to that effect, EFTA Surveillance Authority v Norway , cited above, paragraph 30).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
17 It is settled case-law that, in order to determine whether a body making a reference for a preliminary ruling is a court or tribunal within the meaning of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, as the most recent authority, Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, paragraph 23, and Case 61/65 Vaassen (neé Göbbels) [1966] ECR 261; Case 14/86 Pretore di Salò v Persons unknown [1987] ECR 2545, paragraph 7; Case 109/88 Danfoss [1989] ECR 3199, paragraphs 7 and 8; Case C-393/92 Almelo and Others [1994] ECR I-1477; and Case C-111/94 Job Centre [1995] ECR I-3361, paragraph 9).
|
7 IT MUST BE OBSERVED THAT THE PRETORI ARE JUDGES WHO, IN PROCEEDINGS SUCH AS THOSE IN WHICH THE QUESTIONS REFERRED TO THE COURT IN THIS CASE WERE RAISED, COMBINE THE FUNCTIONS OF A PUBLIC PROSECUTOR AND AN EXAMINING MAGISTRATE . THE COURT HAS JURISDICTION TO REPLY TO A REQUEST FOR A PRELIMINARY RULING IF THAT REQUEST EMANATES FROM A COURT OR TRIBUNAL WHICH HAS ACTED IN THE GENERAL FRAMEWORK OF ITS TASK OF JUDGING, INDEPENDENTLY AND IN ACCORDANCE WITH THE LAW, CASES COMING WITHIN THE JURISDICTION CONFERRED ON IT BY LAW, EVEN THOUGH CERTAIN FUNCTIONS OF THAT COURT OR TRIBUNAL IN THE PROCEEDINGS WHICH GAVE RISE TO THE REFERENCE FOR A PRELIMINARY RULING ARE NOT, STRICTLY SPEAKING, OF A JUDICIAL NATURE .
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
40. Dans cette perspective, il convient de tenir compte du fait que, s’agissant de vérifier l’application correcte, en pratique, des dispositions nationales destinées à assurer la mise en œuvre effective des directives, dont celles adoptées dans le domaine de l’environnement, la Commission, qui ne dispose pas de pouvoirs propres d’investigation en la matière, est largement tributaire des éléments fournis par d’éventuels plaignants, des organismes privés ou publics actifs sur le territoire de l’État membre concerné ainsi que par ledit État membre lui-même (arrêt Commission/Italie, C‑135/05, EU:C:2007:250, point 28 et jurisprudence citée). De même, tout document officiel émis par les autorités de l’État membre concerné peut être considéré comme une source valable d’informations aux fins de l’engagement, par la Commission, de la procédure visée à l’article 258 TFUE (Commission/Grèce, C‑677/13, EU:C:2014:2433, point 66 et jurisprudence citée).
|
66. À cet effet, tout document officiel émis par les autorités de l’État membre concerné peut être considéré comme une source valable d’information aux fins de l’engagement par la Commission de la procédure visée à l’article 258 TFUE (voir, en ce sens, arrêt Commission/Italie, EU:C:2007:250, point 29).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
34. In that regard, as the Advocate General has observed in points 40 and 41 of his Opinion, in order to assess whether that employer-employee relationship exists, it is necessary to check whether the person concerned performs his activities in his own name, on his own behalf and under his own responsibility, and whether he bears the economic risk associated with carrying out those activities. In order to find that the activities at issue are independent, the Court has thus taken into account the complete absence of any employer-employee relationship between public authorities and operators who were not integrated into the public administration, as well as the fact that such operators acted on their own account and under their own responsibility, were free to arrange how they performed their work and themselves received the emoluments which made up their income (see, to that effect, judgments in Commission v Netherlands , 235/85, EU:C:1987:161, paragraph 14; Heerma , C‑23/98, EU:C:2000:46, paragraph 18; and van der Steen , C‑355/06, EU:C:2007:615, paragraphs 21 to 25).
|
23. Secondly, Mr van der Steen, at the time of providing services in his capacity as employee, did not act in his own name, on his behalf and under his own responsibility, but on behalf and under the responsibility of the company.
|
33. In order to answer the first part of this question, it is first necessary to bear in mind that the system of protection established by the Directive is based on the idea that the consumer is in a weak position vis-à-vis the trader as regards both his bargaining power and his level of knowledge, which leads to the consumer agreeing to terms drawn up in advance by the trader without being able to influence the content of those terms (Case C‑453/10 Pereničová and Perenič , paragraph 27 and the case‑law cited).
|
15 Lastly, as the Court has consistently held, the application of national provisions to providers of services established in other Member States must be such as to guarantee the achievement of the intended aim and must not go beyond that which is necessary in order to achieve that objective. In other words, it must not be possible to obtain the same result by less restrictive rules (see, most recently, Case C-154/89 Commission v France, cited above, paragraphs 14 and 15; Case C-180/89 Commission v Italy, cited above, paragraphs 17 and 18; Case C-198/89 Commission v Greece, cited above, paragraphs 18 and 19).
|
18 However, in view of the specific requirements in relation to certain services, the fact that a Member State makes the provision thereof subject to conditions as to the qualifications of the person providing them, pursuant to rules governing such activities within its jurisdiction, cannot be considered incompatible with Articles 59 and 60 of the Treaty. Nevertheless, as one of the fundamental principles of the Treaty the freedom to provide services may be restricted only by rules which are justified in the general interest and are applied to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established. In addition, such requirements must be objectively justified by the need to ensure that professional rules of conduct are complied with and that the interests which such rules are designed to safeguard are protected (see inter alia the judgment in Case 205/84 Commission v Germany [1986] ECR 3755, at paragraph 27).
|
5 THIS ACTION AIMS ONLY AT THE RECOGNITION OF A RIGHT TO COMPENSATION AND AS A RESULT TO A BENEFIT INTENDED TO HAVE EFFECT SOLELY WITH REGARD TO THE APPLICANT .
THE ACTION IS THEREFORE ADMISSIBLE .
SUBSTANCE
|
29 As regards the setting of the amount of duties paid by way of fees or dues, the Court stated in Ponente Carni, at paragraph 43, that it may be difficult to determine the cost of certain transactions such as the registration of a company. In such a case the assessment of the cost can only be on a flat-rate basis and must be fixed in a reasonable manner, taking account, in particular, of the number and qualification of the officials, the time taken by them and the various material costs necessary for carrying out the transaction.
|
43 For certain transactions such as, for example, the registration of a company, it may be difficult to determine their cost. In such a case the assessment of the cost can only be on a flat-rate basis and must be fixed in a reasonable manner, taking account, in particular, of the number and qualification of the officials, the time they take and the various material costs necessary for carrying out the transaction.
Duties of amounts varying according to the legal form of the company
|
26 So, since the WHPC was adopted on 14 July 1991, the requirements laid down in Article 13 of the Law must be examined in the light of Directive 83/189 as amended by Directive 88/182.
|
21. It is not disputed that legislation of a Member State such as that at issue in the main proceedings, which, in principle, prohibits the advertising, organisation and facilitation of games of chance via the internet, constitutes a restriction on the freedom to provide services guaranteed by Article 56 TFEU (see Joined Cases C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07 Stoß and Others EU:C:2010:504, paragraph 68 and the case-law cited).
|
68. By way of preliminary observation, it is common ground that legislation of a Member State such as the legislation at issue in the main proceedings constitutes a restriction on the freedom to provide services guaranteed by Article 49 EC or, alternatively, to the freedom of establishment guaranteed by Article 43 EC (see, to that effect, Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 52).
|
51. The French Government submits, however, that success in the final examination of the ENSP course leads to the permanent appointment of the trainee public servant to the hospital public service and is not evidenced by a diploma or any other document. Accordingly, that training does not lead to a diploma within the meaning of the Directive.
|
27. The Portuguese Government submits that the questions concerning the validity of Decision 2011/346 are inadmissible. Referring to the judgment in TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), the Portuguese Government argues that, since it did not bring any action for the annulment of Decision 2011/346 before the General Court, that decision has become definitive as against it, with the result that its validity can no longer be called into question before a national court. Moreover, no application for suspension of operation of Decision 2011/346 has been made. That decision must therefore be applied in such a way as to allow the immediate and effective recovery of the aid.
|
17 It follows from the same requirements of legal certainty that it is not possible for a recipient of aid, forming the subject-matter of a Commission decision adopted on the basis of Article 93 of the Treaty, who could have challenged that decision and who allowed the mandatory time-limit laid down in this regard by the third paragraph of Article 173 of the Treaty to expire, to call in question the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities for implementing that decision.
|
31. Moreover, the rights conferred by the trade mark are exhausted only in respect of the individual items of the product which have first been put on the market in the EEA by the proprietor or with his consent. By contrast, the proprietor may continue to prohibit the use of the mark in pursuance of the exclusive right conferred on him by Directive 89/104 in respect of other items of that product which have not first been put on the market in the EEA in that way (see, to that effect, Case C‑173/98 Sebago and Maison Dubois [1999] ECR I-4103, paragraphs 19 and 20).
|
27. Article 7(1) of Directive 96/9 entitles the maker of a database which required substantial investment from a quantitative or qualitative point of view to prevent acts of extraction in respect of all or a substantial part of the contents of that database. Furthermore, Article 7(5) is intended to enable that maker to prevent acts of repeated and systematic extraction in respect of an insubstantial part of the contents of that database, which, by their cumulative effect, would lead to the reconstitution of the database as a whole or, at least, of a substantial part of it, without the authorisation of the maker, and which would therefore seriously prejudice the investment of that maker just as the extractions referred to in Article 7(1) of the directive would (see The British Horseracing Board and Others , paragraphs 86 to 89).
|
89. Under those circumstances, ‘acts which conflict with a normal exploitation of [a] database or which unreasonably prejudice the legitimate interests of the maker of the database’ refer to unauthorised actions for the purpose of reconstituting, through the cumulative effect of acts of extraction, the whole or a substantial part of the contents of a database protected by the sui generis right and/or of making available to the public, through the cumulative effect of acts of re-utilisation, the whole or a substantial part of the contents of such a database, which thus seriously prejudice the investment made by the maker of the database.
|
30. It is only where the Community has intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the Community measure in question in the light of the WTO rules (Case C‑149/96 Portugal v Council [1999] ECR I‑8395, paragraph 49; Biret International v Council , paragraph 53; and Van Parys , paragraph 40 and the case-law cited).
|
58
Lastly, it must be emphasised that a refusal of the right to deduct in circumstances characterising the existence of tax evasion on the part of the taxable person seeking to benefit from that right cannot be considered contrary to the principle of fiscal neutrality, since that principle cannot legitimately be invoked by a taxable person who has intentionally participated in tax evasion and who has jeopardised the operation of the common system of VAT (see, by analogy, judgment of 7 December 2010 in R., C‑285/09, EU:C:2010:742, paragraphs 51 and 54 and, to that effect, judgment of 18 December 2014 in Schoenimport ‘Italmoda’ Mariano Previti and Others, C‑131/13, C‑163/13 and C‑164/13, EU:C:2014:2455, paragraph 48).
|
48. In this regard, it is appropriate to note that it follows from the case-law cited in paragraph 44 of the present judgment that the central function of the right of deduction provided for in Article 17(3) of the Sixth Directive, in the VAT mechanism designed to ensure complete neutrality of the tax, does not preclude that right from being refused to a taxable person in the event of participation in fraud (see to that effect, inter alia, judgments in Bonik , EU:C:2012:774, paragraphs 25 to 27 and 37, and Maks Pen , EU:C:2014:69, paragraphs 24 to 26). Similarly, the specific function of the right to a VAT refund, intended to ensure the neutrality of VAT, cannot preclude that right from being refused to a taxable person in such a situation.
|
31. The fact that payment of the customs debt in the five days following the deadline entitles the authorities to waive the interest on arrears necessarily means that that deadline must also be the starting point for calculating that interest.
|
37 It is settled case-law that Community law does not preclude more favourable rules under national law than those under Community law itself provided that such rules are compatible with Community law (see Case 34/69 Duffy [1969] ECR 597, paragraph 9; Case 100/78 Rossi [1979] ECR 831, paragraph 14; Case 733/79 Laterza [1980] ECR 1915, paragraph 8; Case 807/79 Gravina and Others [1980] ECR 2205, paragraph 7; Rönfeldt, cited above, paragraph 26, and Case C-370/90 Singh [1992] ECR I-4265, paragraph 23).
|
26 According to the case-law of the Court (see in particular the judgments of 24 October 1975 in Case 24/75 Petroni v ONPTS [1975] ECR 1149, at paragraph 13, 25 February 1986 in Case 254/84 De Jong v Sociale Verzekeringsbank [1986] ECR 671, at paragraph 15, and 14 December 1989 in Case C-168/88 Dammer v Securex Kinderbijslagfonds [1989] ECR 4553, at paragraph 21), the aim of Articles 48 to 51 of the Treaty would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the legislation of a single Member State. In its judgment of 9 July 1980 in Case 807/79 (Gravina v Landesversicherungsanstalt Schwaben [1980] ECR 2205, at paragraph 7), the Court accordingly concluded that the application of Community rules could not bring about a reduction in the benefits awarded by virtue of the legislation of a single Member State.
|
35
In the circumstances of the main proceedings, it was Archus and Gama as tenderers who sent the contracting authority a request for their tender to be corrected, based on Article 87(2)(3) of the Pzp, in order to replace the sample which they had annexed to their bid, which did not comply with the specifications in the tender specification, with a new microfilm sample.
|
36. One of the consequences of the principle of fiscal neutrality, which is the reflection in the field of VAT of the principle of equal treatment, is that taxable persons must not be treated differently, with regard to the method of rounding applied when VAT is calculated, in respect of similar services which are in competition with each other (see, to that effect, Joined Cases C‑443/04 and C‑444/04 Solleveld and van den Hout-van Eijnsbergen [2006] ECR I‑3617, paragraph 35 and case‑law there cited). By virtue of the same principle, the amount of VAT to be collected by the tax authority must correspond exactly to the amount of VAT declared on the invoice and paid by the final consumer to the taxable person (see, to that effect, Case C‑317/94 Elida Gibbs [1996] ECR I‑5339, paragraph 24).
|
35. However, it follows from the Court’s case-law that the requirement of a correct and straightforward application of the exemptions does not allow the Member States to prejudice the objectives of the Sixth Directive or the principles of Community law, in particular the principle of equal treatment, which is reflected, in the field of VAT, by the principle of fiscal neutrality (see Dornier , paragraphs 42 and 69; Case C‑498/03 Kingscrest Associates and Montecello [2005] ECR I‑4427, paragraphs 29 and 52; and Case C-246/04 Turn- und Sportunion Waldburg [2006] ECR I-0000, paragraphs 44 to 46).
|
22. À cet égard, il suffit de rappeler que, selon une jurisprudence constante de la Cour, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêt Commission/Pologne, C‑303/14, EU:C:2015:423, point 18 et jurisprudence citée).
|
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).
|
40. The national court is also uncertain as to the effect of Decision 2007/445, given the assertion made in the indictment that the inclusion of DHKP‑C on the list had, in any event, been legitimated ex post facto in view of the procedure which the Council followed for the purposes of adopting that decision, in the course of which the reasons for including DHKP‑C were stated.
|
30. As regards that weaker position, Article 6(1) of that directive provides that unfair terms are not binding on the consumer. As is apparent from case-law, that is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them ( Mostaza Claro , paragraph 36, and Case C‑243/08 Pannon GSM [2009] ECR I‑0000, paragraph 25).
|
64. While those rights include the freedom for recipients of services to go to another Member State in order to receive a service there without being obstructed by restrictions ( Ciola , paragraph 11, and Case C‑55/98 Vestergaard [1999] ECR I‑7641, paragraph 20), it is also apparent from settled case-law of the Court that the recipient of services may rely on those rights even if neither he nor the service provider moves within the Community (see, to that effect, Eurowings Luftverkehr , paragraph 34; Case C‑243/01 Gambelli and Others [2003] ECR I‑13031, paragraphs 55 and 57; and Case C‑36/02 Omega [2004] ECR I‑9609, paragraph 25).
|
25. In that respect, this Court finds that the contested order, by prohibiting Omega from operating its ‘laserdrome’ in accordance with the form of the game developed by Pulsar and lawfully marketed by it in the United Kingdom, particularly under the franchising system, affects the freedom to provide services which Article 49 EC guarantees both to providers and to the persons receiving those services established in another Member State. Moreover, in so far as use of the form of the game developed by Pulsar involves the use of specific equipment, which is also lawfully marketed in the United Kingdom, the prohibition imposed on Omega is likely to deter it from acquiring the equipment in question, thereby infringing the free movement of goods ensured by Article 28 EC.
|
47. However, as stated both by the Advocate General in point 178 of her Opinion and by the European Commission in its written observations, the finding made in the preceding paragraph does not mean that Directive 2003/88 precludes national provisions giving entitlement to more than four weeks’ paid annual leave, granted under the conditions for entitlement to, and granting of, the right to paid annual leave laid down by that national law.
|
37. The same is true of Article 22(8) of the Sixth Directive, pursuant to which the Member States may impose other obligations which they deem necessary for the correct collection of the tax and for the prevention of evasion. Although that provision allows Member States to take certain measures, those measures must not however go further than is necessary to attain that objective and may not therefore be used in such a way that they would have the effect of systematically undermining the right to deduct VAT, which is a fundamental principle of the common system of VAT (see Joined Cases C‑286/94, C‑340/95, C‑401/95 and C‑47/96 Molenheide and Others [1997] ECR I‑7281, paragraph 47, Gabalfrisa and Others , paragraph 52 and Ecotrade , paragraphs 65 and 66).
|
47 Accordingly, whilst it is legitimate for the measures adopted by the Member States to seek to preserve the rights of the Treasury as effectively as possible, they must not go further than is necessary for that purpose. They may not therefore be used in such a way that they would have the effect of systematically undermining the right to deduct VAT, which is a fundamental principle of the common system of VAT established by the relevant Community legislation.
|
21 Thus, a proportion of the charges at issue in the main proceedings, payable pursuant to a rule of law laid down by the State, is paid by a private person to the State for the financing of its official business (Modelo I, paragraph 21).
|
74
In view of the objective of ensuring the stability of the banking system in the euro area, and having regard to the imminent risk of financial losses to which depositors with the two banks concerned would have been exposed if the latter had failed, such measures do not constitute a disproportionate and intolerable interference impairing the very substance of the appellants’ right to property. Consequently, they cannot be regarded as unjustified restrictions on that right (see, by analogy, judgment of 10 July 2003, Booker Aquaculture and Hydro Seafood, C‑20/00 and C‑64/00, EU:C:2003:397, paragraphs 79 to 86).
|
85. Admittedly, the Community legislature may consider, in the context of its broad discretion in the field of agricultural policy (see Case C-315/93 Flip and Verdegem [1995] ECR I-913, paragraph 26), that full or partial compensation is appropriate for owners of farms on which animals have been destroyed and slaughtered. Nonetheless, the existence, in Community law, of a general principle requiring compensation to be paid in all circumstances cannot be inferred from that fact.
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
34. According to settled case‑law, the choice of the legal basis for a Community measure must rest on objective factors amenable to judicial review, which include the aim and content of that measure (see, to that effect, inter alia, Case C‑300/89 Commission v Council (‘Titanium dioxide’) [1991] ECR I-2867, paragraph 10, and Case C‑338/01 Commission v Council [2004] ECR I‑4829, paragraph 54), and not on the legal basis used for the adoption of other Community measures which might, in certain cases, display similar characteristics (see, to that effect, Case 131/86 United Kingdom v Council [1988] ECR 905, paragraph 29, and Case C‑91/05 Commission v Council [2008] ECR I‑0000, paragraph 106). In addition, where the Treaty contains a more specific provision that is capable of constituting the legal basis for the measure in question, the measure must be founded on that provision (see, to that effect, Case C‑338/01 Commission v Council , paragraph 60, and Case C‑533/03 Commission v Council [2006] ECR I‑1025, paragraph 45).
|
29 ON THAT POINT IT IS SUFFICIENT TO STATE THAT THE DETERMINATION OF THE APPROPRIATE LEGAL BASIS FOR A MEASURE DOES NOT DEPEND ON THE DISCRETION OF THE COMMUNITY LEGISLATURE BUT MUST BE BASED ON OBJECTIVE FACTORS WHICH ARE AMENABLE TO JUDICIAL REVIEW ( SEE THE JUDGMENT OF 26 MARCH 1987 IN CASE 45/86, REFERRED TO ABOVE ). A PREVIOUS COUNCIL PRACTICE OF ADOPTING LEGISLATIVE MEASURES IN A PARTICULAR FIELD ON A DUAL LEGAL BASIS CANNOT DEROGATE FROM THE RULES LAID DOWN IN THE TREATY . SUCH A PRACTICE CANNOT THEREFORE CREATE A PRECEDENT BINDING ON THE COMMUNITY INSTITUTIONS WITH REGARD TO THE DETERMINATION OF THE CORRECT LEGAL BASIS .
|
25 As regards Article 94(2) of Regulation No 1408/71, it must be borne in mind that the expression period of insurance used in that provision is defined in Article 1(r) of Regulation No 1408/71 as meaning periods of contribution or periods of employment or self-employment as defined or recognised as periods of insurance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance.
|
23
In accordance with the settled case-law of the Court, the measures prohibited by Article 63(1) TFEU as restrictions on the movement of capital include those that are such as to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (judgment of 17 September 2015 in Miljoen and Others, C‑10/14, C‑14/14 and C‑17/14, EU:C:2015:608, paragraph 44 and the case-law cited).
|
44. According to settled case-law of the Court, the measures prohibited by Article 63(1) TFEU as restrictions on the movement of capital include those that are such as to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (judgment in Santander Asset Management SGIIC and Others , C‑338/11 to C‑347/11, EU:C:2012:286, paragraph 15 and the case-law cited).
|
153. While it is true that the situation of the former company is improved by the fact that the tax paid in advance which cannot be offset against the amount due in respect of corporation tax may be repaid, such a company remains in a less favourable situation than that of a company receiving nationally-sourced dividends, in that it suffers a cash-flow disadvantage.
|
34. Moreover, the exercise of rights granted to a woman under that Article cannot be made subject to unfavourable treatment regarding conditions to be fulfilled in order for her to attain a higher grade in the professional hierarchy. From that point of view, Directive 76/207 is intended to bring about equality in substance rather than in form (see, to that effect, Merino Gómez , paragraph 37, and Thibault , paragraph 26).
|
37. The directive is intended to bring about equality in substance rather than in form. The exercise of rights conferred on women as referred to in Article 2(3) of Directive 76/207 by provisions intended to protect women in relation to pregnancy and maternity cannot be made subject to unfavourable treatment regarding their working conditions (see Thibault , paragraph 26).
|
64. While the appellants seek to have the judgment under appeal set aside or, in the alternative, to have the judgment set aside in so far as it confirms the fine imposed or to obtain a reduction in the amount of the fine, it should be noted that, in the absence of any evidence that the excessive duration of the proceedings before the General Court had an effect on the outcome of the dispute, failure on the part of the General Court to adjudicate within a reasonable time cannot lead to the judgment under appeal being set aside. Indeed, where failure to adjudicate within a reasonable time has no effect on the outcome of the dispute, the setting aside of the judgment under appeal would not provide a remedy for any infringement by the General Court of the principle of effective judicial protection (Case C‑40/12 P Gascogne Sack Deutschland v Commission EU:C:2013:768, paragraphs 81 and 82; Case C‑50/12 P Kendrion v Commission EU:C:2013:771, paragraphs 82 and 83; and Case C‑58/12 P Groupe Gascog ne v Commission EU:C:2013:770, paragraphs 81 and 82).
|
16. It must be recalled that a reference for a preliminary ruling made by a national court may be declared inadmissible only where it is quite obvious that the interpretation of European Union law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 61, and Case C‑450/09 Schröder [2011] ECR I‑0000, paragraph 17).
|
17. In that regard, it should be recalled that the Court may reject a reference for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of European Union law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 61, and Case C‑97/09 Schmelz [2010] ECR I‑0000, paragraph 29).
|
33. Pursuant to Article 3 of Regulation No 1515/2001, any measures adopted pursuant to that regulation are to take effect from the date of their entry into force and may not serve as basis for the reimbursement of the duties collected prior to that date, unless otherwise provided for. Recital (6) in the preamble to the regulation provides in that connection that the recommendations in reports adopted by the DSB only have prospective effect. Therefore, ‘any measures taken under [Regulation No 1515/2001] will take effect from the date of their entry into force, unless otherwise specified, and … do not provide any basis for the reimbursement of the duties collected prior to that date’.
|
43. As the Court has already held, national legislation such as that at issue in the main proceedings, providing that terms declared unfair are invalid, satisfies the requirements of Article 6(1) of Directive 93/13 (see, to that effect, Case C‑472/10 Invitel [2012] ECR I‑0000, paragraphs 39 and 40).
|
39. In the main proceedings, the national legislation provides that the declaration, by a court, of the invalidity of a term appearing in the GBC of consumer contracts is to apply to any consumer who has concluded a contract with a seller or supplier which includes that term. As is apparent from the case-file in the main proceedings, the subject-matter of the dispute concerns the use by the supplier of standard terms featuring the disputed term in contracts concluded with numerous consumers. It should be noted that, as the Advocate General pointed out in points 57 to 61 of her Opinion, national legislation such as that referred to in the present paragraph satisfies the requirements of Article 6(1), read in conjunction with Article 7(1) and (2), of the Directive.
|
10. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 19 juin 2003, Commission/France, C‑161/02, Rec. p. I‑6567, point 6, et du 26 avril 2007, Commission/Italie, C‑135/05, Rec. p. I‑3475, point 36).
|
33. It must still be established whether a national measure such as that in Paragraph 8a(1), Head 2, of the KStG pursues a legitimate aim which is compatible with the Treaty and is justified by pressing reasons of public interest. In that event, it must also be such as to ensure achievement of the aim in question and not go beyond what is necessary for that purpose (see, in particular, Case C-250/95 Futura Participations and Singer [1997] ECR I-2471, paragraph 26, and Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 43).
|
43 In addition, the possibility granted to the Member States by Article 73d(1)(a) of the Treaty of applying the relevant provisions of their tax legislation which distinguish between taxpayers according to their place of residence or the place where their capital is invested has already been upheld by the Court. According to that case-law, before the entry into force of Article 73d(1)(a) of the Treaty, national tax provisions of the kind to which that article refers, in so far as they establish certain distinctions based, in particular, on the residence of taxpayers, could be compatible with Community law provided that they applied to situations which were not objectively comparable (see, in particular, Case C-279/93 Schumacker [1995] ECR I-225) or could be justified by overriding reasons in the general interest, in particular in relation to the cohesion of the tax system (Case C-204/90 Bachmann v Belgian State [1992] ECR I-249 and Case C-300/90 Commission v Belgium [1992] ECR I-305).
|
65. À cette fin, il incombe au juge de l’Union de procéder à cet examen en demandant, le cas échéant, à l’autorité compétente de l’Union de produire des informations ou des éléments de preuve, confidentiels ou non, pertinents aux fins d’un tel examen (voir arrêt Kadi II, point 120 et jurisprudence citée).
|
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).
|
39 Accordingly, the answer to the first question must be that a Member State which is an addressee of Decisions 98/692 and 1999/514 and which has not challenged the legality of those decisions within the time-limit laid down by the fifth paragraph of Article 230 EC does not have standing subsequently before a national court to invoke their unlawfulness in order to dispute the merits of an action brought against it.
The second question
|
14 In view of those findings, it must be concluded that by taking into consideration the sales subsidiary' s prices it is possible to ensure that costs which manifestly form part of the selling price of a product where the sale is made by an internal sales department of the manufacturing organization are not left out of account where the same selling activity is carried out by a company which, despite being financially controlled by the manufacturer, is a legally distinct entity .
|
31. It must be borne in mind that the term ‘part’ implies a whole for the operation of which the part is essential ( Peacock , paragraph 21, and Case C-276/00 Turbon International [2002] ECR I-1389, paragraph 30).
|
30 In that connection, it should be observed that the word part, within the meaning of CN heading 8473, implies a whole for the operation of which the part is essential (see Peacock, cited above, paragraph 21) and this is not so in the case of the cartridge at issue in the main proceedings. While it is true that, without an ink-cartridge, a printer is not able to carry out its intended functions, the fact remains that the mechanical and electronic functioning of the printer in itself is not in any way dependent on such a cartridge. The inability of the printer, in the absence of an ink-cartridge, to transcribe on to paper the work produced with the aid of a computer is caused by lack of ink rather than a malfunctioning of the printer.
|
50. Il convient de constater que M me Lindorfer, en invoquant la méconnaissance par le Tribunal du principe de non‑discrimination et celui d’égalité de traitement des sexes estime, en effet, que l’un des principes généraux protégés par l’ordre juridique communautaire a été violé. À cet égard, il y a également lieu de relever que l’article 141 CE et les diverses dispositions du droit dérivé auxquelles M me Lindorfer fait référence, ainsi que l’article 1 er bis, paragraphe 1, du statut, sont des expressions spécifiques du principe général d’égalité des sexes.
|
46. It must also be noted that, in the absence of any unifying or harmonising measures at European Union level, the Member States retain the power to define, by conventions or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (Case C‑336/96 Gilly [1998] ECR I‑2793, paragraphs 24 and 30; Case C‑307/97 Saint-Gobain ZN [1999] ECR I‑6161, paragraph 57; Amurta , paragraph 17; Commission v Italy , paragraph 29; and Commission v Spain , paragraph 38).
|
24 The Member States are competent to determine the criteria for taxation on income and wealth with a view to eliminating double taxation - by means, inter alia, of international agreements - and have concluded many bilateral conventions based, in particular, on the model conventions on income and wealth tax drawn up by the Organisation for Economic Cooperation and Development (`OECD').
|
58
Secondly, as regards the criterion relating to urgency, it is necessary, in accordance with the settled case-law of the Court, to take into account the fact that the person concerned in the case in the main proceedings is currently deprived of his liberty and that the question as to whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings. Moreover, the situation of the person concerned must be assessed as it stood at the time when consideration was given to whether the reference should be dealt with under the urgent preliminary ruling procedure (judgments of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 45 and the case-law cited, and of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629, paragraph 72 and the case-law cited).
|
42. Nor are the legal principles referred to by the Netherlands Government and the Productschap such as to bring into question the assessment that, in a sector covered by a common organisation, a fortiori where that organisation is based on a common pricing system, Member States can no longer take action, through national provisions taken unilaterally, affecting the machinery of price formation at the production and marketing stages established under the common organisation (see Toffoli and Others , cited above, paragraph 12; Case 166/82 Commission v Italy [1984] ECR 459, paragraph 5; Case 127/87 Commission v Greece [1988] ECR 3333, paragraph 8; and Milk Marque and National Farmers’ Union , cited above, paragraph 63).
|
63. Admittedly, in a sector covered by a common organisation of the market, a fortiori where that organisation is based on a common price system, the Member States are under an obligation to refrain from taking any measures which might undermine or create exceptions to it (see, inter alia , Case 111/76 Van den Hazel [1977] ECR 901, paragraph 13, Pigs Marketing Board , cited above, paragraph 56, and Case C-462/01 Hammarsten [2003] ECR I-781, paragraph 28). In particular, Member States can no longer take action, through national provisions taken unilaterally, affecting the machinery of price formation at the production and marketing stages established under the common organisation (see, inter alia , Toffoli and Others , cited above, paragraph 12).
|
90 It should be noted that Article 1(a) of the Directive does not require that, in order to be classed as a contractor, a person who enters into a contract with a contracting authority must be capable of direct performance using his own resources. The person in question need only be able to arrange for execution of the works in question and to furnish the necessary guarantees in that connection.
|
64. In paragraph 165 of the judgment under appeal, the General Court rightly pointed out that where, following the annulment of a decision penalising undertakings which have infringed Article 81(1) EC because of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission is to adopt a fresh decision, with substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 83 to 111).
|
97 Moreover, contrary to the claims made both by LVM and DSM and by Elf Atochem, the mere existence of differences between the two successive decisions
of the Commission did not in itself render new hearings necessary, since those differences did not involve the consideration of new objections.
|
25 It must be borne in mind that the Court has consistently held that Article 177 of the Treaty lays down the framework for close cooperation between the national courts and the Court of Justice, based on a division of functions between them. Accordingly, it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to decide, having regard to the particular features of each case, as to both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court of Justice.
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.