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31. The Court has also held that those rules of special jurisdiction must be interpreted restrictively and cannot give rise to an interpretation going beyond the cases expressly envisaged by the regulation (see, to that effect, Zuid-Chemie , paragraph 22 and the case-law cited).
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22. The Court has also held that those rules of special jurisdiction must be interpreted restrictively and cannot give rise to an interpretation going beyond the cases expressly envisaged by that convention (see Case 189/87 Kalfelis [1988] ECR 5565, paragraph 19; Case C-433/01 Blijdenstein [2004] ECR I‑981, paragraph 25; and Kronhofer , paragraph 14).
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53. The market in press products, like the radio market, is a market in which trade between Member States is relatively sizeable and is set to grow further as a result, in particular, of the link between the media in question and the internet, which is the cross-border medium par excellence .
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30. However, as the Court has also pointed out, the requirement that the Court of First Instance give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by a party, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence (Case C-274/99 P Connolly v Commission [2001] ECR I‑1611, paragraph 121, and Case C‑197/99 P Belgium v Commission [2003] ECR I‑8461, paragraph 81).
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121 As the Advocate General observed in point 61 of his Opinion, although the Court of First Instance is required to give reasons for its decisions, it is not obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence. In that regard, the appellant has not proved, or even asserted, that the arguments referred to in paragraph 119 of this judgment meet those requirements or that they were supported by evidence which was distorted by the Court of First Instance, or that in its assessment of that evidence the Court of First Instance contravened the rules of procedure or general legal principles concerning the burden of proof or the taking of evidence.
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40. Furthermore, it follows from Articles 2 and 3 of Directive 2003/9 that the directive provides for only one category of asylum seekers, comprising all third-country nationals or stateless persons who make an application for asylum. No provision can be found in the directive such as to suggest that an application for asylum can be regarded as having been lodged only it if is submitted to the authorities of the Member State responsible for the examination of that application.
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76. This meant that, whereas the dividends were passed up the group structure without any liability to pay ACT, when the final resident parent company came to pay the dividends to the shareholders outside the group, it did not have any tax credit to offset against its liability for ACT and was, consequently, obliged to pay ACT on the dividends. The provisions of the ACT system permitted the final parent company, however, to surrender any surplus ACT that it had to its resident subsidiaries and to offset it against the group’s overall tax liability (see Joined Cases C‑397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I‑1727, paragraphs 21 to 25).
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21 Under section 247 ICTA, two companies resident in the United Kingdom, one of which holds at least 51% of the other, may make a group income election.
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40. In addition, the fact that the law of a Member State provides for a procedure in defence of members of the national parliament – enabling that parliament to intervene where the national court does not recognise that immunity – does not imply that the same powers are conferred on the European Parliament in relation to its Members coming from that Member State, since, as has been held in paragraph 32 above, Article 9 of the Protocol does not expressly grant the Parliament such power and does not refer to the rules of national law.
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41. By contrast, it is incompatible with the rules governing the right to deduct under Directive 2006/112 to impose a penalty, in the form of a 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 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; Bonik , paragraph 41; and LVK – 56 , paragraph 60).
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52. Nor can the right to deduct input VAT of a taxable person who carries out such transactions be affected by the fact that in the chain of supply of which those transactions form part another prior or subsequent transaction is vitiated by VAT fraud, without that taxable person knowing or having any means of knowing.
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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.
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18. In that regard, although it is clear from Article 3(1) of the Directive that each of the grounds for refusal listed in that provision is independent of the others and calls for separate examination (see inter alia Joined Cases C-53/01 to C-55/01 Linde and Others [2003] ECR I-3161, paragraph 67), there is a clear overlap between the scope of the grounds for refusal set out in subparagraphs (b), (c) and (d) of Article 3(1) (see, to that effect, Case C-517/99 Merz & Krell [2001] ECR I-6959, paragraphs 35 and 36).
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67. It is clear from Article 3(1) of the Directive that each of the grounds for refusal listed in that provision is independent of the others and calls for separate examination.
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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.
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38. It is apparent from the Court’s case-law that it is legitimate to require, in such a case, that the supplier act in good faith and take every reasonable measure in his power to ensure that the transaction that he effects does not lead to his participation in tax fraud. However, once the supplier has fulfilled his obligations relating to evidence of an intra-Community supply, where the contractual obligation to dispatch or transport the goods out of the Member State of supply has not been satisfied by the person acquiring the goods, it is the latter who should be held liable for the VAT in that Member State (see, to that effect, Teleos and Others , paragraphs 66 and 67).
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66. Accordingly, the fact that the supplier acted in good faith, that he took every reasonable measure in his power and that his participation in fraud is excluded are important points in deciding whether that supplier can be obliged to account for the VAT after the event.
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31. Second, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. In carrying out that task, the Advocate General may, where appropriate, analyse a request for a preliminary ruling by placing it within a context which is broader than that strictly defined by the referring court or by the parties to the main proceedings. Since the Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based, it is not absolutely necessary to reopen the oral procedure, under Article 83 of the Rules of Procedure, each time the Advocate General raises a point of law which was not the subject of debate between the parties (Case C‑361/06 Feinchemie Schwebda and Bayer CropScience [2008] ECR I‑3865, paragraph 34).
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62 Environmental protection has already been considered by the Court to be one of the essential objectives of the Community (see Case 240/83 Procureur de la République v Association de Défense des Brûleurs d'Huiles Usagées [1985] ECR 531, paragraph 13). In Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 9, the Court held that protection of the environment is an imperative requirement which may limit the application of Article 30 of the Treaty.
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13 THERE IS NO REASON TO CONCLUDE THAT THE DIRECTIVE HAS EXCEEDED THOSE LIMITS . THE DIRECTIVE MUST BE SEEN IN THE PERSPECTIVE OF ENVIRONMENTAL PROTECTION , WHICH IS ONE OF THE COMMUNITY ' S ESSENTIAL OBJECTIVES . IT IS EVIDENT , PARTICULARLY FROM THE THIRD AND SEVENTH RECITALS IN THE PREAMBLE TO THE DIRECTIVE , THAT ANY LEGISLATION DEALING WITH THE DISPOSAL OF WASTE OILS MUST BE DESIGNED TO PROTECT THE ENVIRONMENT FROM THE HARMFUL EFFECTS CAUSED BY THE DISCHARGE , DEPOSIT OR TREATMENT OF SUCH PRODUCTS . IT IS ALSO EVIDENT FROM THE PROVISIONS OF THE DIRECTIVE AS A WHOLE THAT CARE HAS BEEN TAKEN TO ENSURE THAT THE PRINCIPLES OF PROPORTIONALITY AND NON-DISCRIMINATION WILL BE OBSERVED IF CERTAIN RESTRICTIONS SHOULD PROVE NECESSARY . IN PARTICULAR , ARTICLE 5 OF THE DIRECTIVE PERMITS THE CREATION OF A SYSTEM OF ZONING ' WHERE THE AIMS DEFINED IN ARTICLES 2 , 3 AND 4 CANNOT OTHERWISE BE ACHIEVED ' .
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47. In any event, the need to comply with the principle of effectiveness cannot be stretched so far as to mean that, in circumstances such as those in the main proceedings, a national court is required not only to compensate for a procedural omission on the part of a consumer who is unaware of his rights, as in the case which gave rise to the judgment in Mostaza Claro , but also to make up fully for the total inertia on the part of the consumer concerned who, like the defendant in the main proceedings, neither participated in the arbitration proceedings nor brought an action for annulment of the arbitration award, which therefore became final.
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64. The content of the Explanatory Notes to the CN, which do not take the place of those of the HS but should be regarded as complementary to them (see, to that effect, Case C‑486/06 Van Landeghem [2007] ECR I‑10661, paragraph 36), and consulted jointly with them, must accordingly be consistent with the provisions of the CN and may not alter their scope (see, in particular, Kamino International Logistics , paragraph 48).
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48. The content of the Explanatory Notes to the CN, which do not take the place of those of the HS but should be regarded as complementary to them (see, to that effect, Case C‑486/06 Van Landeghem [2007] ECR I‑10661, paragraph 36), and consulted jointly with them, must accordingly be compatible with its provisions and may not alter the scope of those provisions (see, in particular, Algemene Scheeps Agentuur Dordrecht , paragraph 28 and the case-law cited).
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32 First of all, Article 2 of the Directive provides that all signs may constitute trade marks provided that they are capable both of being represented graphically and of distinguishing the goods or services of one undertaking from those of other undertakings.
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33. It is clear from settled case‑law that, for a trade mark to possess distinctive character for the purposes of that provision, it must serve to identify the goods in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish those goods from those of other undertakings ( Procter & Gamble v OHIM , paragraph 32; OHIM v Erpo Möbelwerk , paragraph 42; Case C‑144/06 P Henkel v OHIM [2007] ECR I‑8109, paragraph 34; and Case C‑304/06 P Eurohypo v OHIM [2008] ECR I‑3297, paragraph 66).
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34. According to consistent case-law, for a trade mark to possess distinctive character within the meaning of that article, it must serve to identify the product in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings (Joined Cases C-473/01 P and C‑474/01 P Procter & Gamble v OHIM [2004] ECR I‑5173, paragraph 32, and Case C‑64/02 P OHIM v Erpo Möbelwerk [2004] ECR I‑10031, paragraph 42).
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95. It should thus be determined at the outset whether FAPL can invoke such rights capable of justifying the fact that the national legislation at issue in the main proceedings establishes in its favour protection which constitutes a restriction on the freedom to provide services.
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66
In that regard, it must be recalled that, according to well-established case-law, that obligation to state reasons does not however require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning may therefore be implicit, provided that it enables the persons concerned to know the reasons why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, to that effect, inter alia, judgments of 2 April 2009, Bouygues and Bouygues Télécom v Commission, C‑431/07 P, EU:C:2009:223, paragraph 42, and of 22 May 2014, Armando Álvarez v Commission, C‑36/12 P, EU:C:2014:349, paragraph 31).
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31. In so far as Armando Álvarez submits, in the context of its alternative plea, that the General Court breached its obligation to state the reasons in failing to address each of the arguments which Armando Álvarez had put forward to rebut the presumption of actual exercise of decisive influence, it should be observed that, according to the settled case-law of the Court of Justice, the obligation on the General Court, under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union, to state the reasons on which its judgments are based does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case ( Groupe Gascogne v Commission EU:C:2013:770, paragraph 37).
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33. A system of strict liability of that kind implies, however, as is apparent, moreover, from the fifth recital in the preamble to the Montreal Convention, that an ‘equitable balance of interests’ be maintained, in particular as regards the interests of air carriers and of passengers.
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13 In this connection, it is sufficient to observe that, according to the settled case-law of the Court, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, inter alia, Case C-259/94 Commission v Greece [1995] ECR I-1947, at paragraph 5 and Case C-214/96 Commission v Spain [1998] ECR I-7661, at paragraph 18).
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18 As regards those arguments relating to internal difficulties, it is sufficient to observe that, as the Court has consistently held, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, in particular, Case C-259/94 Commission v Greece [1995] ECR I-1947, paragraph 5, and Case C-298/95 Commission v Germany [1996] ECR I-6747, paragraph 18).
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43. Applied to an economic entity, the term means the powers, granted to those in charge of that entity, to organise, relatively freely and independently, the work within that entity in the pursuit of its specific economic activity and, more particularly, the powers to give orders and instructions, to allocate tasks to employees of the entity concerned and to determine the use of assets available to the entity, all without direct intervention from other organisational structures of the employer (‘the organisational powers’).
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121. As regards the review of legality, the Court of Justice has held that whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the Courts of the European Union must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must those Courts establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see Case C‑12/03 P Commission v Tetra Laval [2005] ECR I‑987, paragraph 39, and Case C‑525/04 P Spain v Lenzing [2007] ECR I‑9947, paragraphs 56 and 57).
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39. Whilst the Court recognises that the Commission has a margin of discretion with regard to economic matters, that does not mean that the Community Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the Community Courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. Such a review is all the more necessary in the case of a prospective analysis required when examining a planned merger with conglomerate effect.
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28 In accordance with the Treaties, the Parliament' s prerogatives include participation in the drafting of legislative measures, in particular participation in the cooperation procedure laid down in the EEC Treaty .
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37. According to settled case-law, the possession of particular physical capacities is one characteristic relating to age (judgments in Wolf , EU:C:2010:3, paragraph 41, and Prigge and Others , EU:C:2011:573, paragraph 67).
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67. As regards airline pilots, it is essential that they possess, inter alia, particular physical capabilities in so far as physical defects in that profession may have significant consequences. It is also undeniable that those capabilities diminish with age (see, to that effect, with regard to the profession of fireman, Wolf , paragraph 41). It follows that possessing particular physical capabilities may be considered as a ‘genuine and determining occupational requirement’, within the meaning of Article 4(1) of the Directive, for acting as an airline pilot and that the possession of such capabilities is related to age.
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38. In that context, even if such transactions are based on the desire of the purchaser to benefit from the preferential rate of duty and even if the importers concerned are aware of that, those transactions may not a priori be regarded as being devoid of economic and commercial justification for the latter.
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65 That interpretation is also confirmed by settled case-law of the Court (see Kziber, cited above, paragraphs 15 to 23, confirmed by Case C-58/93 Yousfi [1994] ECR I-1353, paragraphs 16 to 19; Case C-103/94 Krid [1995] ECR I-719, paragraphs 21 to 24; Case C-126/95 Hallouzi-Choho v Bestuur van de Sociale Verzekeringsbank [1996] ECR I-4807, paragraphs 19 and 20; and Case C-113/97 Babahenini [1998] ECR I-183, paragraphs 17 and 18) relating to the principle of equal treatment contained in Article 39(1) of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria, signed in Algiers on 26 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1) and to Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 26 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2211/78 (OJ 1978 L 264, p. 1).
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21 L' accord a, en effet, pour objectif, comme cela a déjà été exposé, de promouvoir une coopération globale entre les parties contractantes, notamment dans le domaine de la main-d' oeuvre . La circonstance que l' accord vise essentiellement à favoriser le développement économique du Maroc et qu' il se borne à établir une coopération entre les parties sans viser à une association ou à une future adhésion du Maroc aux Communautés n' est pas de nature à empêcher l' applicabilité directe de certaines de ses dispositions .
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30. In this respect, it should be recalled that, while a mere finding of disparities between national rules is not sufficient to justify having recourse to Article 95 EC (see, to that effect, Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419, paragraph 84), it is otherwise where there are differences between the laws, regulations or administrative provisions of the Member States which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market (see, to that effect, Germany v Parliament and Council , paragraph 95, and Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraph 60).
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49. Quant à la finalité de ce régime particulier, la Cour a rappelé à maintes reprises que les services fournis par les agences de voyages et par les organisateurs de circuits touristiques se caractérisent par le fait que, en règle générale, ces services se composent de multiples prestations, notamment en matière de transport et d’hébergement, qui sont exécutées tant à l’intérieur qu’à l’extérieur du territoire de l’État membre où l’entreprise a son siège ou un établissement stable. L’application des règles de droit commun concernant le lieu d’imposition, la base d’imposition et la déduction de la taxe en amont se heurterait, en raison de la multiplicité et de la localisation des prestations fournies, à des difficultés pratiques pour ces entreprises, qui seraient de nature à entraver l’exercice de leur activité. C’est afin d’adapter les règles applicables au caractère spécifique de cette activité que le législateur de l’Union a institué, à l’article 26, paragraphes 2 à 4, de la sixième directive, un régime particulier de TVA (voir arrêts du 12 novembre 1992, Van Ginkel, C‑163/91, Rec. p. I‑5723, points 13 à 15; Madgett et Baldwin, précité, point 18; du 19 juin 2003, First Choice Holidays, C‑149/01, Rec. p. I‑6289, points 23 à 25; du 13 octobre 2005, ISt, C‑200/04, Rec. p. I‑8691, point 21, ainsi que du 9 décembre 2010, Minerva Kulturreisen, C‑31/10, Rec. p. I‑12889, points 17 et 18).
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18 Van Ginkel points out that neither the Sixth Directive nor the case-law of the Court gives a precise definition of the concept of "journey" and contends ° relying on the expression "travel facilities" used in the English version of Article 26(1) of the Sixth Directive, on the definition of "journey" generally accepted in the Community, on business practice, on the provisions of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59), on the objectives which the Sixth Directive seeks to achieve and on the practical difficulties which a contrary interpretation would involve ° that the concept of "journey" covers holidays offered to the public by travel agents, where the agent merely reserves accommodation for the traveller.
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133 Secondly, whilst national teams must be made up of players having the nationality of the relevant country, those players need not necessarily be registered to play for clubs in that country. Indeed, under the rules of the sporting associations, foreign players must be allowed by their clubs to play for their country's national team in certain matches.
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59. Il convient de rappeler que les exigences de sécurité publique doivent, notamment en tant que dérogation au principe fondamental de la libre circulation des marchandises, être entendues strictement, de sorte que leur portée ne saurait être déterminée unilatéralement par chacun des États membres sans contrôle des institutions de la Communauté européenne. Ainsi, la sécurité publique ne saurait être invoquée qu’en cas de menace réelle et suffisamment grave, affectant un intérêt fondamental de la société (voir, par analogie, arrêt du 14 mars 2000, Église de scientologie, C-54/99, Rec. p. I‑1335, point 17). En l’espèce, force est de constater que les mesures litigieuses ne visent pas à la sauvegarde d’intérêts fondamentaux tels que la sécurité de l’approvisionnement en pétrole ou en biens d'importance stratégique (voir, notamment, arrêts du 10 juillet 1984, Campus Oil e.a., 72/83, Rec. p. 2727; du 4 octobre 1991, Richardt et «Les Accessoires Scientifiques», C‑367/89, Rec. p. I‑4621, et du 17 octobre 1995, Leifer e.a., C‑83/94, Rec. p. I‑3231). Par conséquent, cette justification doit être écartée.
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17 It should be observed, first, that while Member States are still, in principle, free to determine the requirements of public policy and public security in the light of their national needs, those grounds must, in the Community context and, in particular, as derogations from the fundamental principle of free movement of capital, be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the Community institutions (see, to this effect, Case 36/75 Rutili v Minister for the Interior [1975] ECR 1219, paragraphs 26 and 27). Thus, public policy and public security may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see, to this effect, Rutili, cited above, paragraph 28, and Case C-348/96 Calfa [1999] ECR I-11, paragraph 21). Moreover, those derogations must not be misapplied so as, in fact, to serve purely economic ends (to this effect, see Rutili, paragraph 30). Further, any person affected by a restrictive measure based on such a derogation must have access to legal redress (see, to this effect, Case 222/86 Unectef v Heylens and Others [1987] ECR 4097, paragraphs 14 and 15).
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61. In those circumstances, the Court finds that passengers whose flights are delayed may rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.
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42 Furthermore, in Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, paragraph 35, the Court recognized that a "discipline" of the same legal nature as the Guidelines, whose rules were accepted by the Member States, was binding.
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35 Secondly, in this case the rules set out in the discipline and accepted by the Member States themselves have the effect, inter alia, of withdrawing from certain aid falling within its scope the authorization previously granted and hence of classifying it as new aid and subjecting it to the obligation of prior notification.
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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).
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82. Thus, the Court has held that if a national law merely encourages or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 36 to 73, and CIF , paragraph 56).
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49 ALTHOUGH THE ITALIAN CONSEIL D'ETAT ANNULLED ORDER NO 1236 AND CIRCULAR NO 1237, ATTENTION MUST BE DRAWN TO THE FACT THAT, ON THE ONE HAND, THIS DECISION WAS NOT MADE UNTIL 29 FEBRUARY 1972, AND, ON THE OTHER HAND, THAT IT CONFIRMED THAT THE DISPUTED MEASURES WERE IN SUBSTANCE LAWFUL AND FINALLY THAT THE BEFOREMENTIONED SYSTEM OF PRICES CONTINUED IN FACT TO BE APPLIED .
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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.
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32 However, in the judgment of 30 April 1996 in Case C-308/93 Cabanis-Issarte (not yet published in the European Court Reports, paragraph 34), the scope of the rule in Kermaschek was limited to cases in which a member of a worker' s family relies on provisions of Regulation No 1408/71 which are applicable solely to workers and not to members of their families, such as Articles 67 to 71, relating to unemployment benefits. That is not the case with Article 73 of the regulation, the precise purpose of which is to guarantee members of the family residing in a Member State other than the competent State the grant of the family benefits provided for by the applicable legislation.
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34 Since, therefore, the distinction drawn between rights in person and derived rights renders the fundamental rule of equal treatment inapplicable to the surviving spouse of a migrant worker, the rule in Kermaschek should be limited to the circumstances described in paragraphs 23 and 24 above.
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93. In addition, Article 80 TFEU provides that asylum policy and its implementation are to be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Directive 2001/55 is an example of that solidarity but, as was stated at the hearing, the solidarity mechanisms which it contains apply only to wholly exceptional situations falling within the scope of that directive, that is to say, a mass influx of displaced persons.
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44. As regards inheritances, the case-law has confirmed that the measures prohibited by Article 56(1) EC as being restrictions on the movement of capital include those the effect of which is to reduce the value of the inheritance of a resident of a State other than the Member State in which the assets concerned are situated and which taxes the inheritance of those assets ( van Hilten‑van der Heijden , paragraph 44, and Jäger , paragraph 31).
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31. Furthermore, as regards inheritances, the case‑law has confirmed that the measures prohibited by Article 73b(1) of the Treaty as being restrictions on the movement of capital include those the effect of which is to reduce the value of the inheritance of a resident of a State other than the Member State in which the assets concerned are situated and which taxes the inheritance of those assets ( van Hilten-van der Heijden , cited above, paragraph 44).
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42. Toutefois, cette répartition de la compétence fiscale ne permet pas aux États membres d’appliquer des mesures contraires aux libertés de circulation garanties par le traité FUE. En effet, en ce qui concerne l’exercice du pouvoir d’imposition ainsi réparti dans le cadre de conventions bilatérales préventives de la double imposition, les États membres sont tenus de se conformer aux règles de l’Union (arrêts précités de Groot, point 94; Renneberg, points 50 et 51, ainsi que Beker, points 33 et 34).
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28. While it is established that the rights to freedom of movement laid down under that article benefit workers, including those seeking employment, there is nothing in the wording of that article to indicate that those rights may not be relied upon by others. In order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers (see Case C-350/96 Clean Car Autoservice [1998] ECR I-2521, paragraphs 19 and 20, and Case C-208/05 ITC Innovative Technology Center [2007] ECR I-181, paragraphs 22 and 23).
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22. However, while it is established that the rights to freedom of movement laid down under Article 39 EC benefit workers, including those seeking employment (see, to that effect, Case C-292/89 Antonissen [1991] ECR I‑745, paragraphs 12 and 13), there is nothing in the wording of that article to indicate that those rights may not be relied upon by others (see Case C-350/96 Clean Car Autoservice [1998] ECR I-2521, paragraph 19).
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84. In general, the consequence of an annulment is that the outstanding balance of the loan becomes due forthwith, which is likely to be in excess of the consumer’s financial capacities and, as a result, tends to penalise the consumer rather than the lender who, as a consequence, might not be dissuaded from inserting such terms in its contracts.
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38. That does not alter the fact that it is for the Court, where appropriate, to examine the circumstances in which the case was referred to it by a national court in order to assess whether it has jurisdiction and, in particular, determine whether the interpretation of European Union law that is sought bears any relation to the facts of the main action or its purpose, so that the Court is not led to deliver advisory opinions on general or hypothetical questions (see, inter alia, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraphs 18 and 21, and Case C‑167/01 Inspire Art [2003] ECR I‑10155, paragraph 45). If it appears that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment (see, inter alia, Lourenço Dias , paragraph 20, and Ritter-Coulais , paragraph 15 and the case-law cited).
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15. That does not alter the fact that it is for the Court, where necessary, to examine the circumstances in which the case was referred to it by the national court in order to assess whether it has jurisdiction and, in particular, determine whether the interpretation of Community law that is sought bears any relation to the facts of the main action or its purpose, so that the Court is not obliged to deliver advisory opinions on general or hypothetical questions. If it appears that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment (Case 244/80 Foglia [1981] ECR 3045, paragraph 21; Lourenço Dias , cited above, paragraph 20; Canal Satélite Digital , cited above, paragraph 19; Case C-167/01 Inspire Art [2003] ECR I-10155, paragraphs 44 and 45; and Siemens and ARGE Telekom , cited above, paragraph 35).
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36 However, that proposal for a regulation has not yet been adopted by the Council.
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27. In those circumstances, since it considered that the outcome of the case before it depended on the interpretation of Community law, the Court of Appeal (England and Wales) (Civil Division) decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:
‘ Scope of the free movement provisions
(1) Where a trade union or association of trade unions takes collective action against a private undertaking so as to require that undertaking to enter into a collective bargaining agreement with a trade union in a particular Member State which has the effect of making it pointless for that undertaking to re‑flag a vessel in another Member State, does that action fall outside the scope of Article 43 EC and/or Regulation No 4055/86 by virtue of the EC’s social policy including, inter alia, Title XI of the EC Treaty and, in particular, by analogy with the Court’s reasoning in … Albany (paragraphs 52 to 64)?
Horizontal direct effect
(2) Do Article 43 EC and/or Regulation No 4055/86 have horizontal direct effect so as to confer rights on a private undertaking which may be relied on against another private party and, in particular, a trade union or association of trade unions in respect of collective action by that union or association of unions?
Existence of restrictions on free movement
(3) Where a trade union or association of trade unions takes collective action against a private undertaking so as to require that undertaking to enter into a collective bargaining agreement with a trade union in a particular Member State, which has the effect of making it pointless for that undertaking to re‑flag a vessel in another Member State, does that action constitute a restriction for the purposes of Article 43 EC and/or Regulation No 4055/86?
(4) Is a policy of an association of trade unions which provides that vessels should be flagged in the registry of the country in which the beneficial ownership and control of the vessel is situated so that the trade unions in the country of beneficial ownership of a vessel have the right to conclude collective bargaining agreements in respect of that vessel, a directly discriminatory, indirectly discriminatory or non-discriminatory restriction under Article 43 EC or Regulation No 4055/86?
(5) In determining whether collective action by a trade union or association of trade unions is a directly discriminatory, indirectly discriminatory or non‑discriminatory restriction under Article 43 EC or Regulation No 4055/86, is the subjective intention of the union taking the action relevant or must the national court determine the issue solely by reference to the objective effects of that action?
Establishment/services
(6) Where a parent company is established in Member State A and intends to undertake an act of establishment by reflagging a vessel to Member State B to be operated by an existing wholly owned subsidiary in Member State B which is subject to the direction and control of the parent company:
(a) is threatened or actual collective action by a trade union or association of trade unions which would seek to render the above a pointless exercise capable of constituting a restriction on the parent company’s right of establishment under Article 43, and
(b) after reflagging of the vessel, is the subsidiary entitled to rely on Regulation No 4055/86 in respect of the provision of services by it from Member State B to Member State A?
Justification
Direct discrimination
(7) If collective action by a trade union or association of trade unions is a directly discriminatory restriction under Article 43 EC or Regulation No 4055/86, can it, in principle, be justified on the basis of the public policy exception set out in Article 46 EC on the basis that:
(a) the taking of collective action (including strike action) is a fundamental right protected by Community law; and/or
(b) the protection of workers?
The policy of [ITF]: objective justification
(8) Does the application of a policy of an association of trade unions which provides that vessels should be flagged in the registry of the country in which the beneficial ownership and control of the vessel is situated so that the trade unions in the country of beneficial ownership of a vessel have the right to conclude collective bargaining agreements in respect of that vessel, strike a fair balance between the fundamental social right to take collective action and the freedom to establish and provide services, and is it objectively justified, appropriate, proportionate and in conformity with the principle of mutual recognition?
FSU’s actions: objective justification
(9) Where:
– a parent company in Member State A owns a vessel flagged in Member State A and provides ferry services between Member State A and Member State B using that vessel;
– the parent company wishes to re-flag the vessel to Member State B to apply terms and conditions of employment which are lower than in Member State A;
– the parent company in Member State A wholly owns a subsidiary in Member State B and that subsidiary is subject to its direction and control;
– it is intended that the subsidiary will operate the vessel once it has been re-flagged in Member State B with a crew recruited in Member State B covered by a collective bargaining agreement negotiated with an ITF affiliated trade union in Member State B;
– the vessel will remain beneficially owned by the parent company and be bareboat chartered to the subsidiary;
– the vessel will continue to provide ferry services between Member State A and Member State B on a daily basis;
– a trade union established in Member State A takes collective action so as to require the parent and/or subsidiary to enter into a collective bargaining agreement with it which will apply terms and conditions acceptable to the union in Member State A to the crew of the vessel even after reflagging and which has the effect of making it pointless for the parent to re-flag the vessel to Member State B,
does that collective action strike a fair balance between the fundamental social right to take collective action and the freedom to establish and provide services and is it objectively justified, appropriate, proportionate and in conformity with the principle of mutual recognition?
(10) Would it make any difference to the answer to [Question] 9 if the parent company provided an undertaking to a court on behalf of itself and all the companies within the same group that they will not by reason of the reflagging terminate the employment of any person employed by them (which undertaking did not require the renewal of short term employment contracts or prevent the redeployment of any employee on equivalent terms and conditions)?’
The questions referred
Preliminary observations
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63 Second, as far as its purpose is concerned, that agreement establishes, in a given sector, a supplementary pension scheme managed by a pension fund to which affiliation may be made compulsory. Such a scheme seeks generally to guarantee a certain level of pension for all workers in that sector and therefore contributes directly to improving one of their working conditions, namely their remuneration.
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167. In those circumstances, as follows from paragraphs 146 to 155 above and, in particular, from paragraphs 148, 152, 153 and 155, it was for the General Court – in the light of all the circumstances of the case and, in particular, the change in approach (not disputed in the present proceedings) with respect to Elf Aquitaine between the Organic Peroxides decision and the decision at issue – to pay particular attention to the question whether the latter decision contains a detailed statement of the reasons why the Commission found that the evidence submitted by Elf Aquitaine was not sufficient to rebut the presumption applied in that decision.
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30. It follows that medical services effected for the purpose of protecting, of maintaining or of restoring human health benefit from the exemption under Article 13A(1)(b) and (c) of the Sixth Directive (see, to that effect, Case C‑212/01 Unterpertinger [2003] ECR I‑13859, paragraphs 40 and 41; Case C‑307/01 D’Ambrumenil and Dispute Resolution Services [2003] ECR I‑13989, paragraphs 58 and 59; and L.u.P. , paragraph 29).
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40. While it follows from that case-law that the " provision of medical care" must have a therapeutic aim, it does not necessarily follow therefrom that the therapeutic purpose of a service must be confined within an especially narrow compass (see, to that effect, Commission v France , paragraph 23). Paragraph 40 of the judgment in Kügler shows that medical services effected for prophylactic purposes may benefit from the exemption under Article 13A(1)(c). Even in cases where it is clear that the persons who are the subject of examinations or other medical interventions of a prophylactic nature are not suffering from any disease or health disorder, the inclusion of those services within the meaning of " provision of medical care" is consistent with the objective of reducing the cost of health care, which is common to both the exemption under Article 13A(1)(b) and that under (c) of that paragraph (see Commission v France , paragraph 23, and Kügler , paragraph 29).
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42
In the first place, the referring court points out that the name ‘Verlados’ refers, first, to the name of the undertaking Viiniverla, which manufactures that drink, and, secondly, to the village of Verla, which is known to Finnish consumers, so that that name is not capable of misleading those consumers.
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42 Freedom of establishment thus defined includes, pursuant to Article 58 of the Treaty, the right of companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community, to pursue their activities in the Member State concerned through a branch or agency (Case C-264/96 ICI [1998] ECR I-4695, paragraph 20, and the case-law cited therein, and Case C-307/97 Saint-Gobain ZN [1999] ECR I-6161, paragraph 34). With regard to companies, it should be noted in this context that it is their corporate seat in the above sense that serves as the connecting factor with the legal system of a particular State, like nationality in the case of natural persons (ICI, cited above, paragraph 20, and the case-law cited therein, and Saint-Gobain ZN, cited above, paragraph 35). Acceptance of the proposition that the Member State in which a company seeks to establish itself may freely apply to it a different treatment solely by reason of the fact that its registered office is situated in another Member State would thus deprive Article 52 of all meaning (Commission v France, cited above, paragraph 18).
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34 The freedom of establishment conferred by Article 52 of the Treaty on nationals of Member States of the Community, which entails for them access to, and pursuit of, activities as employed persons and the forming and management of undertakings on the same conditions as those laid down for its own nationals by the laws of the Member State where establishment is effected, includes, pursuant to Article 58 of the Treaty, the right of companies or firms formed in accordance with the laws of a Member State and having their registered office, central administration or principal place of business within the Community to pursue their activities in the Member State concerned through a branch or an agency (see Case C-264/96 ICI [1998] ECR I-4695, paragraph 20, and the case-law cited there). Those two provisions guarantee nationals of Member States of the Community who have exercised their freedom of establishment and companies or firms which are assimilated to them the same treatment in the host Member State as that accorded to nationals of that Member State.
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29 The statement of objections must specify clearly the facts upon which the Commission relies and its classification of those facts.
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63
Nevertheless, as such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgments of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 66, and of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 75).
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66. On this point, it should be recalled, first, that in view of the objectives pursued by Regulation No 1049/2001, in particular the fact noted in recital 2 in the preamble that the public right of access to the documents of the institutions is connected with the democratic nature of those institutions and the fact that, as stated in recital 4 in the preamble and in Article 1, the purpose of the regulation is to give the public the widest possible right of access, the exceptions to that right set out in Article 4 of the regulation must be interpreted and applied strictly (see, to that effect, in relation to the legislation prior to Regulation No 1049/2001, Joined Cases C‑174/98 P and C‑189/98 P Netherlands and van der Wal v Commission [2000] ECR I‑1, paragraph 27; Council v Hautala , paragraphs 24 and 25; and, with reference to Regulation No 1049/2001, Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 63).
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37. In that regard, the Portuguese Republic has not satisfactorily shown that such a link exists where it merely submits that the corporation tax exemption offsets the income tax payable by members of pension funds resident in Portugal in respect of the pensions that they receive and thus allows the double taxation of that income to be avoided.
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58
Thus, although, in the absence of EU rules in the area of payment of tax credits of which the beneficiaries have been unduly deprived, it is for the domestic legal system of each Member State to determine the procedural rules governing actions intended to ensure the protection of directly effective EU law rights, under the principle of equivalence, those rules must not be less favourable than those relating to similar domestic actions (see, to that effect, judgments of 16 December 1976, Rewe-Zentralfinanz and Rewe-Zentral, 33/76, EU:C:1976:188, paragraph 5; of 8 March 2001, Metallgesellschaft and Others, C‑397/98 and C‑410/98, EU:C:2001:134, paragraph 85; of 12 December 2006, Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 203, and of 6 October 2015, Târșia, C‑69/14, EU:C:2015:662, paragraphs 26 and 27).
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203. In the absence of Community rules on the refund of national charges levied though not due, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Case 33/76 Rewe [1976] ECR 1989, paragraph 5, and Case 45/76 Comet [1976] ECR 2043, paragraphs 13 and 16; and, more recently, Case C-231/96 Edis [1998] ECR I-4951, paragraphs 19 and 34; Case C-343/96 Dilexport [1999] ECR I‑579, paragraph 25; and Metallgesellschaft and Others , paragraph 85).
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67 The seventh plea must therefore be dismissed.
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78. Secondly, that rule cannot however be applied so as to allow an applicant to make a claim against a number of defendants with the sole object of ousting the jurisdiction of the courts of the State where one of those defendants is domiciled (see, to that effect, Case 189/87 Kalfelis [1988] ECR 5565, paragraphs 8 and 9, and Case C‑51/97 Réunion européenne and Others [1998] ECR I‑6511, paragraph 47).
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47 In any event, the exception provided for in Article 6(1) of the Convention, derogating from the principle that the courts of the State in which the defendant is domiciled are to have jurisdiction, must be construed in such a way that there is no possibility of the very existence of that principle being called in question, in particular by allowing a plaintiff to make a claim against a number of defendants with the sole purpose of ousting the jurisdiction of the courts of the State where one of those defendants is domiciled (Kalfelis, cited above, paragraphs 8 and 9).
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42
In the first place, the referring court points out that the name ‘Verlados’ refers, first, to the name of the undertaking Viiniverla, which manufactures that drink, and, secondly, to the village of Verla, which is known to Finnish consumers, so that that name is not capable of misleading those consumers.
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36. Thus, the Court has held that not all family members of a Union citizen who are not nationals of a Member State derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national (judgments in Metock and Others , EU:C:2008:449, paragraph 73; Dereci and Others , C‑256/11, EU:C:2011:734, paragraph 56; Iida , C‑40/11, EU:C:2012:691, paragraph 51; and O. and B. , EU:C:2014:135, paragraph 39).
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73. On this point, the answer must be, first, that it is not all nationals of non-member countries who derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.
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16 It follows that the action is admissible only in so far as the two grounds of application relate to those two provisions of the general conditions.
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19. It should be remembered that it is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which 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 (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38, and Case C-438/01 Design Concept [2003] ECR I-5617, paragraph 14).
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38 It should remembered that it is settled law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 177 of the Treaty 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 by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59).
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26 THE NOTICE OF COMPLAINTS FULFILS THIS REQUIREMENT SINCE IT SETS FORTH CLEARLY, ALBEIT SUCCINCTLY, THE ESSENTIAL FACTS ON WHICH THE COMMISSION RELIES .
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67. First, it should be observed that the possibility of excluding particular anti-competitive conduct from the scope of Article 81(1) EC on the ground that it has been required of the undertakings in question by existing national legislation or that the legislation has precluded all scope for any competitive conduct on their part has been only partially accepted by the Court of Justice (see, by way of example, Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, paragraphs 130 to 134; Case 41/83 Italy v Commission [1985] ECR 873, paragraph 19; and Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie and Others v Commission [1985] ECR 3831, paragraphs 27 to 29).
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133 FURTHER , IN THE PRESENT CASE EVEN IF THE SHARE OF THE RETAIL PRICE DUE TO THE REVENUE IS LARGE THERE REMAINS FOR THE MANUFACTURER OR IMPORTER A SUFFICIENT MARGIN TO ALLOW EFFECTIVE COMPETITION EVEN WITH REGARD TO MASS-PRODUCED PRODUCTS OF CURRENT CONSUMPTION IN RESPECT OF WHICH A VERY SMALL REDUCTION IN THE PRICE AT THE MANUFACTURING OR IMPORT STAGE MAY HAVE A SIGNIFICANT EFFECT AT THE CONSUMER STAGE .
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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.
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19 In that regard, it should be observed that, according to the case-law of the Court, a charge such as the disputed charge escapes classification as a charge having equivalent effect to a customs duty if it relates to a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported or exported products alike (see, in particular, Case 132/78 Denkavit v France [1979] ECR 1923, paragraph 7).
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7AS THE COURT HAS ACKNOWLEDGED SEVERAL TIMES , AND IN PARTICULAR IN ITS JUDGMENT OF 25 JANUARY 1977 IN CASE 46/76 , W . J . G . BAUHUIS V THE NETHERLANDS STATE ( 1977 ) ECR 5 , ANY PECUNIARY CHARGE , WHATEVER ITS DESIGNATION AND MODE OF APPLICATION , WHICH IS IMPOSED UNILATERALLY ON GOODS BY REASON OF THE FACT THAT THEY CROSS A FRONTIER AND WHICH IS NOT A CUSTOMS DUTY IN THE STRICT SENSE , CONSTITUTES A CHARGE HAVING AN EQUIVALENT EFFECT WITHIN THE MEANING OF ARTICLES 9 , 12 , 13 AND 16 OF THE TREATY . SUCH A CHARGE HOWEVER ESCAPES THAT CLASSIFICATION IF IT CONSTITUTES THE CONSIDERATION FOR A BENEFIT PROVIDED IN FACT FOR THE IMPORTER OR EXPORTER REPRESENTING AN AMOUNT PROPORTIONATE TO THE SAID BENEFIT . IT ALSO ESCAPES THAT CLASSIFICATION IF IT RELATES TO A GENERAL SYSTEM OF INTERNAL DUES SUPPLIED SYSTEMATICALLY AND IN ACCORDANCE WITH THE SAME CRITERIA TO DOMESTIC PRODUCTS AND IMPORTED PRODUCTS ALIKE , IN WHICH CASE IT DOES NOT COME WITHIN THE SCOPE OF ARTICLES 9 , 12 , 13 AND 16 BUT WITHIN THAT OF ARTICLE 95 OF THE TREATY .
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20. It is therefore clear that new taxable persons are subject to conditions for the refund of excess VAT which are more onerous than those to which other taxable persons are subject. Accordingly they have to bear, at least to the extent of the amount of excess VAT to be repaid, the financial burden of VAT for a particularly long period.
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25 Since that is a derogation from the general rules laid down by the directive, Article 3(2), third indent, may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which it seeks to secure. Furthermore, the scope of the derogations which it lays down must be determined in the light of the aims pursued by the directive (Case C-335/94 Mrozek and Jäger [1996] ECR I-1573, paragraph 9).
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9. Article 4 of the regulation lists certain categories of transport which are excluded from its scope. Being thus a derogation from the general scheme, Article 4 may not be interpreted in such a way as to extend its effects beyond what is necessary to safeguard the interests which it seeks to secure. Furthermore, the scope of the derogations which it lays down must be determined in the light of the aims pursued by the regulation (see Case C-116/91 Licensing Authority South Eastern Traffic Area v British Gas [1992] ECR I-4071, paragraph 12).
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34. Cette interprétation est corroborée par la structure et l’économie des règles de compétence spéciales en matière de contrats conclus par les consommateurs prévues à l’article 16, paragraphes 1 et 2, du règlement nº 44/2001, lequel prévoit la compétence de la juridiction du domicile du consommateur pour les actions intentées par ce dernier et contre celui-ci. Il en découle que cette disposition trouve à s’appliquer uniquement aux contrats dans lesquels un déséquilibre existe entre les parties contractantes.
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30
In so far as, first, the Member States are required pursuant to Article 19(1) of Regulation No 561/2006 to lay down rules on penalties for infringements of that regulation in such a way that those penalties are effective, proportionate, dissuasive and non-discriminatory, and, second, the regulation does not exclude the liability of drivers, it follows that the Member States can lay down provisions allowing penalties to be imposed, exclusively or otherwise, on drivers (judgment of 9 June 2016, Eurospeed, C‑287/14, EU:C:2016:420, paragraph 34).
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35
Similarly, recital 31 of Regulation No 561/2006 stated that Regulation No 3821/85 should be amended to clarify specific obligations on transport undertakings and drivers as well as to promote legal certainty and to facilitate enforcement of driving time and rest period limits during roadside checks. The wording of that recital shows that Regulation No 561/2006, which moreover amends Regulation No 3821/85, is aimed in particular at drivers with respect to the obligations they must comply with under the latter regulation. In so far as, first, the Member States are required pursuant to Article 19(1) of Regulation No 561/2006 to lay down rules on penalties for infringements of that regulation in such a way that those penalties are effective, proportionate, dissuasive and non-discriminatory, and, second, the regulation does not exclude the liability of drivers, it follows that the Member States can lay down provisions allowing penalties to be imposed, exclusively or otherwise, on drivers.
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53. Where a private undertaking has a holding, even a minority holding, in the capital of a company in which the contracting authority in question also has a holding, it is impossible for that contracting authority to exercise over that company control comparable to that which it exercises over its own departments (see, inter alia, Sea , paragraph 46).
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25 The Court has held that the term `worker' as used in the Treaty, and in particular in Article 48, is not to be defined by reference to the national laws of the Member States but has a Community meaning. Were it otherwise, the application of the Community rules on freedom of movement for workers might be jeopardized, since the meaning of the term could be decided upon and modified unilaterally, without any control by the Community institutions, by the Member States, which would thus be able to exclude at will certain categories of persons from the benefit of the Treaty (see, in particular, Case 105/84 Foreningen af Arbejdsledere i Danmark v Danmols Inventar [1985] ECR 2639, paragraph 24).
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24 IT MAY BE RECALLED THAT THE COURT , INTER ALIA IN ITS JUDGMENT OF 23 MARCH 1982 ( CASE 53/81 , LEVIN , ( 1982 ) ECR 1035 ), HELD THAT THE TERM ' WORKER ' AS USED IN THE TREATY , MAY NOT BE DEFINED BY REFERENCE TO THE NATIONAL LAWS OF THE MEMBER STATES BUT HAS A COMMUNITY MEANING . IF THAT WERE NOT THE CASE , THE COMMUNITY RULES ON FREEDOM OF MOVEMENT FOR WORKERS WOULD BE FRUSTRATED , SINCE THE MEANING OF THE TERM COULD BE DECIDED UPON AND MODIFIED UNILATERALLY , WITHOUT ANY CONTROL BY THE COMMUNITY INSTITUTIONS , BY THE MEMBER STATES , WHICH WOULD THUS BE ABLE TO EXCLUDE AT WILL CERTAIN CATEGORIES OF PERSONS FROM THE BENEFIT OF THE TREATY .
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52. Therefore, a limitation period, such as that the issue in the main proceedings does not render impossible or excessively difficult the exercise of the right to deduct merely because the tax authority has a longer period in which to recover unpaid VAT than that accorded to the taxable person for the exercise of such a right.
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40. Moreover, as is clear from Article 32d(1) CS and Article 51 of the ECSC Statute of the Court of Justice, an appeal lies on a point of law only. Therefore, the Court of First Instance has sole jurisdiction to find and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted (see, to that effect, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraphs 49 and 66; Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 194; and Case C-312/00 P Commission v Camar and Tico [2002] ECR I-11355, paragraph 69).
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49 The Court of First Instance thus has exclusive jurisdiction to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it. In the present case the findings of the Court of First Instance relating to the events which preceded the adoption of Regulation No 3294/88 (paragraph 11 of the judgment), which are not challenged, can no longer be questioned. The Court of First Instance has also exclusive jurisdiction to assess those facts. In the present case the same is true of its assessment that the transmission on 23 December 1985 by the Commission to the Council of the second proposal relating to weightings could have taken place more speedily so that the legislation could have been adopted as early as 1 January 1984 (paragraph 39 of the judgment). On the other hand, when the Court of First Instance has found or assessed facts, the Court of Justice has jurisdiction to exercise the review required of it by Article 168a of the EEC Treaty provided that the Court of First Instance has defined their legal nature and determined the legal consequences. In the present case that applies to the assessment by the Court of First Instance that the slowness of the preparatory procedure constituted a fault (paragraph 39 of the judgment).
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35. La directive 96/71 ne visant pas l’harmonisation des systèmes de fixation des conditions de travail et d’emploi dans les États membres, ces derniers restent libres de choisir, au niveau national, un système qui ne figure pas expressément parmi ceux prévus par ladite directive, pourvu qu’il n’entrave pas la prestation des services entre les États membres (arrêt Laval un Partneri, précité, point 68).
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43. In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and to apply to members of the disadvantaged group the same arrangements as those enjoyed by other workers (see, in respect of equal pay for men and women, Case C-184/89 Nimz [1991] ECR I-297, paragraphs 18 to 20, and Case C-408/92 Avdel Systems [1994] ECR I-4435, paragraph 16).
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20 It is equally necessary to apply such considerations to the case where the provision at variance with Community law is derived from a collective labour agreement. It would be incompatible with the very nature of Community law if the court having jurisdiction to apply that law were to be precluded at the time of such application from being able to take all necessary steps to set aside the provisions of a collective agreement which might constitute an obstacle to the full effectiveness of Community rules.
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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.
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50. Secondly, as regards making the issue of the EU Posting Confirmation subject to the requirement that there must be an employment contract of at least one year or of indefinite duration, such a measure goes beyond what is required for the objective of social protection as a necessary condition for providing services through the posting of workers who are nationals of non-Member States ( Commission v Luxembourg , paragraphs 32 and 33, and Commission v Germany , paragraph 58).
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33. As correctly pointed out by the Commission, that requirement is liable to make considerably more complicated the deployment in Luxembourg of workers who are nationals of non-member countries for the purposes of providing services in sectors where, due to the particular features of the activity in question, frequent use is made of short-term and service-specific contracts. It should be borne in mind in this regard that, according to the information provided by the Luxembourg Government, the national legislation governing employment contracts authorises the use of such contracts for the hiring of Community workers for certain types of tasks.
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17. The rules regarding equal treatment forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (Case C‑279/93 Schumacker [1995] ECR I‑225, paragraph 26 and the case‑law cited).
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39. It is apparent from Article 1 of Directive 95/46 and recitals 2 and 10 in its preamble that that directive seeks to ensure not only effective and complete protection of the fundamental rights and freedoms of natural persons, in particular the fundamental right to respect for private life with regard to the processing of personal data, but also a high level of protection of those fundamental rights and freedoms. The importance of both the fundamental right to respect for private life, guaranteed by Article 7 of the Charter, and the fundamental right to the protection of personal data, guaranteed by Article 8 thereof, is, moreover, emphasised in the case-law of the Court (see judgments in Rijkeboer , C‑553/07, EU:C:2009:293, paragraph 47; Digital Rights Ireland and Others , C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 53; and Google Spain and Google , C‑131/12, EU:C:2014:317, paragraphs, 53, 66, 74 and the case-law cited).
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53. Furthermore, in the light of the objective of Directive 95/46 of ensuring effective and complete protection of the fundamental rights and freedoms of natural persons, and in particular their right to privacy, with respect to the processing of personal data, those words cannot be interpreted restrictively (see, by analogy, Case C‑324/09 L'Oréal and Others EU:C:2011:474, paragraphs 62 and 63).
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54. However, it should be borne in mind that a national measure which restricts the free movement of goods may not be justified solely on the ground that it aims to protect within the Member State concerned the purported quality of a product unless that product has a PDO (see, to that effect, Joined Cases C‑158/04 and C‑159/04 Alfa Vita Vassilopoulos and Carrefour-Marinopoulos [2006] ECR I‑8135, paragraph 23).
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54. As to the second condition, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion (see the judgments cited above Brasserie du pêcheur and Factortame , paragraph 55, and Bergaderm and Goupil v Commission , paragraph 43). Where that institution has only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 28; Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94 Dillenkofer and Others [1996] ECR I-4845, paragraph 25; Case C-127/95 Norbrook Laboratories [1998] ECR I-1531, paragraph 109; Case C-424/97 Haim [2000] ECR I-5123, paragraph 38, and Bergaderm and Goupil v Commission , cited above, paragraph 44).
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55. As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.
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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.
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19. It should be noted in that regard that the fundamental right to the inviolability of the home is a general principle of EU law (see, to that effect, judgments in Hoechst v Commission , 46/87 and 227/88, EU:C:1989:337, paragraph 19; Dow Benelux v Commission , 85/87, EU:C:1989:379, paragraph 30; and Dow Chemical Ibérica and Others v Commission , 97/87 to 99/87, EU:C:1989:380, paragraph 16) as now expressed in Article 7 of the Charter, which corresponds to Article 8 of the ECHR.
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30 None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention . The need for such protection must be recognized as a general principle of Community law . In that regard, it should be pointed out that the Court has held that it has the power to determine whether measures of investigation taken by the Commission under the ECSC Treaty are excessive ( judgment of 14 December 1962 in Joined Cases 5 to 11 and 13 to 15/62 San Michele and Others v Commission (( 1962 )) ECR 449 ).
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22. It should be recalled that it is undisputed that Article 28 EC has direct effect in the sense that it confers on individuals rights upon which they are entitled to rely directly before the national courts and that breach of that provision may give rise to reparation ( Brasserie du pêcheur and Factortame , paragraph 23).
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49. As far as direct taxes are concerned, residents and non-residents are generally not in comparable situations, since the income received in the territory of a Member State by a non-resident is in most cases only a part of his total income, which is concentrated at his place of residence, and a non-resident’s personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is easier to assess at the place where his personal and financial interests are centred, which is generally the place of his usual residence (see, inter alia, Schumacker , paragraphs 31 and 32, and Gschwind , paragraph 22).
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22 As far as direct taxes are concerned, the situations of residents and of non-residents in a given State are not generally comparable, since income received in the territory of a State by a non-resident is in most cases only a part of his total income, which is concentrated at his place of residence, and a non-resident's personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is more easy to assess at the place where his personal and financial interests are centred, which in general is the place where he has his usual abode (Schumacker, cited above, paragraphs 31 and 32).
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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.
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40
As regards, in the second place, the appropriateness of an internal rule such as that at issue in the main proceedings, it must be held that the fact that workers are prohibited from visibly wearing signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner (see, to that effect, judgments of 10 March 2009, Hartlauer, C‑169/07, EU:C:2009:141, paragraph 55, and of 12 January 2010, Petersen, C‑341/08, EU:C:2010:4, paragraph 53).
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55. First, it must be recalled that national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others [2007] ECR I‑1891, paragraphs 53 and 58, and Case C‑500/06 Corporación Dermoestética [2008] ECR I‑0000, paragraphs 39 and 40).
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20. It follows from the foregoing that, in order to decide which court has jurisdiction to hear and determine a specific action brought against the Community seeking compensation for damage, it is necessary to determine whether the action in question concerns the Community’s contractual liability or its non-contractual liability.
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36. The Court considers that, in so far as the national legislation at issue in the case in the main proceedings provides only for conversion of companies which already have their seat in the Member State concerned, that legislation treats companies differently according to whether the conversion is domestic or of a cross-border nature, which is likely to deter companies which have their seat in another Member State from exercising the freedom of establishment laid down by the Treaty and, therefore, amounts to a restriction within the meaning of Articles 49 TFEU and 54 TFEU (see, to that effect, SEVIC Systems , paragraphs 22 and 23).
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22. In so far as, under national rules, recourse to such a means of company transformation is not possible where one of the companies is established in a Member State other than the Federal Republic of Germany, German law establishes a difference in treatment between companies according to the internal or cross-border nature of the merger, which is likely to deter the exercise of the freedom of establishment laid down by the Treaty.
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13 IT IS THEREFORE APPROPRIATE IN THIS CASE TO REGARD THE SUBJECT-MATTER OF THE DISPUTE AS BEING THE ITALIAN AUTHORITIES' FAILURE TO COMPLY WITH THE AFOREMENTIONED PERIODS, AS EVIDENCED BY THE CONTINUOUS DELAYS, WITHOUT THERE BEING ANY NEED TO CONSIDER EACH CASE OF LATE COMMUNICATION OF DATA OR TO EXCLUDE EVENTS WHICH TOOK PLACE AFTER THE DELIVERY OF THE REASONED OPINION .
THE ALLEGED BREACH OF OBLIGATIONS
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28. It is clear from paragraphs 43 and 44 of Bronner that, in order to determine whether a product or service is indispensable for enabling an undertaking to carry on business in a particular market, it must be determined whether there are products or services which constitute alternative solutions, even if they are less advantageous, and whether there are technical, legal or economic obstacles capable of making it impossible or at least unreasonably difficult for any undertaking seeking to operate in the market to create, possibly in cooperation with other operators, the alternative products or services. According to paragraph 46 of Bronner , in order to accept the existence of economic obstacles, it must be established, at the very least, that the creation of those products or services is not economically viable for production on a scale comparable to that of the undertaking which controls the existing product or service.
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43 In the first place, it is undisputed that other methods of distributing daily newspapers, such as by post and through sale in shops and at kiosks, even though they may be less advantageous for the distribution of certain newspapers, exist and are used by the publishers of those daily newspapers.
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35. Article 300(7) EC provides that ‘agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States’. In accordance with the Court’s case-law, those agreements prevail over provisions of secondary Community legislation (Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 52, and Case C-286/02 Bellio F.lli [2004] ECR I-3465, paragraph 33).
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20 In answering that question it should be observed that in its judgment in McDermott and Cotter the Court held that until such time as the Member State had adopted the necessary implementing measures women were entitled to have the same rules applied to them as were applied to men in the same situation, since in such circumstances those rules remained the only valid point of reference.
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14 FURTHERMORE, IN ITS JUDGMENT OF 4 DECEMBER 1986 ( CASE 71/85 NETHERLANDS V FNV (( 1986 )) ECR 3855 ) THE COURT HELD THAT STANDING BY ITSELF, AND IN THE LIGHT OF THE OBJECTIVE AND CONTENTS OF THE DIRECTIVE, ARTICLE 4 ( 1 ) IS SUFFICIENTLY PRECISE TO BE RELIED UPON IN LEGAL PROCEEDINGS AND APPLIED BY A COURT . MOREOVER, THAT ARTICLE IN NO WAY PERMITS MEMBER STATES TO RESTRICT OR PLACE CONDITIONS ON THE APPLICATION OF THE PRINCIPLE OF EQUAL TREATMENT IN ITS PARTICULAR AREA OF APPLICATION .
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39 Consequently, the fact that a worker can claim retroactively to join an occupational pension scheme does not allow him to avoid paying the contributions relating to the period of membership concerned (Fisscher, cited above, paragraph 37).
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30. In that regard, it should be noted at the outset that a situation like that of Mr Byankov, who is prevented from travelling from the Member State of which he is a national to another Member State, falls within the scope of the freedom to move and reside within the territory of the Member States which is conferred by the status of citizen of the Union (see, by analogy, Jipa , paragraph 17; Case C-430/10 Gaydarov [2011] ECR I-11637, paragraphs 24 to 27; and Case C-434/10 Aladzhov [2011] ECR I-11659, paragraphs 24 to 27).
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17. It must first of all be noted that, as a Romanian national, Mr Jipa enjoys the status of a citizen of the Union under Article 17(1) EC and may therefore rely on the rights pertaining to that status, including against his Member State of origin, and in particular the right conferred by Article 18 EC to move and reside freely within the territory of the Member States (see, for example, to that effect Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraphs 31 to 33; Case C‑192/05 Tas-Hagen and Tas [2006] ECR I‑10451, paragraph 19; and Joined Cases C‑11/06 and C‑12/06 Morgan and Bucher [2007] ECR I‑9161, paragraphs 22 and 23).
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Certes, dans certains cas de figure, il est loisible au juge, si une bonne administration de la justice le justifie, de rejeter
au fond le recours porté devant lui sans statuer préalablement sur l’exception d’irrecevabilité de ce dernier soulevée devant
lui (voir, en ce sens, arrêt Conseil/Boehringer, C‑23/00 P, EU:C:2002:118, point 52).
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22. Accordingly, the principle of the obligation of Member States to repay with interest amounts of tax levied in breach of European Union law follows from that law ( Littlewoods Retail and Others , paragraph 26, and Zuckerfabrik Jülich and Others , paragraph 66).
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66. It follows from that case-law that the principle of the obligation of Member States to repay with interest amounts of tax levied in infringement of European Union law follows from that law (see Littlewoods Retail and Others , paragraph 26).
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78. However, it must be observed, first, that the intrinsic value of the data affected by the act of extraction and/or re-utilisation does not constitute a relevant criterion for assessing whether the part in question is substantial, evaluated qualitatively. The fact that the data extracted and re-utilised by William Hill are vital to the organisation of the horse races which BHB and Others are responsible for organising is thus irrelevant to the assessment whether the acts of William Hill concern a substantial part of the contents of the BHB database.
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55. In so far as Article 65(1)(a) TFEU is a derogation from the fundamental principle of the free movement of capital, it must be interpreted strictly. It cannot therefore be interpreted as meaning that all tax legislation which draws a distinction between taxpayers based on their place of residence or the State in which they invest their capital is automatically compatible with the Treaty (see Case C‑11/07 Eckelkamp and Others [2008] ECR I‑6845, paragraph 57; Case C‑510/08 Mattner [2010] ECR I‑3553, paragraph 32; and Haribo Lakritzen Hans Riegel and Österreichische Salinen , paragraph 56).
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57. That provision of Article 58 EC, in so far as it is a derogation from the fundamental principle of the free movement of capital, must be interpreted strictly. It cannot therefore be interpreted as meaning that all tax legislation which draws a distinction between taxpayers based on their place of residence or the Member State in which they invest their capital is automatically compatible with the Treaty (see Jäger , paragraph 40).
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21. In such a situation, those items are not distributed in any way with the aim of penetrating the market for goods in the same class. In those circumstances, affixing the mark to those items does not contribute to creating an outlet for those items or to distinguishing, in the interest of the customer, those items from the goods of other undertakings.
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28. In that regard, it must be observed that, according to settled case-law, in the field of competition law the concept of an ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, in particular, Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Case C-67/96 Albany [1999] ECR I-5751, paragraph 77; Joined Cases C‑180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraph 74; and Case C-222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑0000, paragraph 107).
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77 It should be borne in mind that, in the context of competition law, the Court has held that the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed (see, in particular, Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Poucet and Pistre, cited above, paragraph 17; and Fédération Française des Sociétés d'Assurance, cited above, paragraph 14).
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22. That condition is given effect to in, inter alia, Articles 3 and 12 of the Directive. While Article 3 specifies the circumstances in which a trade mark is incapable, ab initio , of fulfilling its function as an indication of origin, Article 12(2)(a) addresses the situation where the trade mark is no longer capable of fulfilling that function.
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22. For a trade mark to possess distinctive character for the purposes of Regulation No 207/2009, it must serve to identify the product in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings (see, to that effect, Joined Cases C‑468/01 P to C‑472/01 P Procter & Gamble v OHIM [2004] ECR I‑5141, paragraph 32; Case C‑304/06 P Eurohypo v OHIM [2008] ECR I‑3297, paragraph 66; and Case C‑311/11 P Smart Technologies v OHIM [2012] ECR I‑0000, paragraph 23).
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66. As a preliminary point, it should be borne in mind, as is apparent from paragraph 56 of this judgment, that for a trade mark to possess a distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94, it must serve to identify the product in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings ( Henkel v OHIM , paragraph 34 and the case-law cited).
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10 THE QUESTION REFERRED BY THE COUR D ' APPEL , LIEGE , MUST BE RESOLVED IN THE LIGHT OF ALL THE PROVISIONS OF THE TREATY AND OF SECONDARY LEGISLATION WHICH MAY BE RELEVANT TO THE PROBLEM .
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28
It is apparent from that case-law, first, that the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, must be interpreted autonomously in order to ensure that that concept is applied uniformly in all Member States and, secondly, that, in order to come within the scope of that concept, the claimant’s action must place in issue a legal obligation freely consented to by one person towards another (see, to that effect, judgments of 14 March 2013, Česká spořitelna, C‑419/11, EU:C:2013:165, paragraphs 45 to 47, and of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraphs 37 and 39).
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47. Consequently, the application of the rule of special jurisdiction provided for matters relating to a contract in Article 5(1)(a) of Regulation No 44/2001 presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based (see, by analogy, Engler , paragraph 51).
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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.
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49 Moreover, in the particular context of the EEC-Turkey Association, that interpretation is confirmed by the case-law of the Court to the effect that the standstill clauses set out in Article 7 of Decision No 2/76 of the Association Council of 20 December 1976 on the implementation of Article 12 of the Ankara Agreement (not published) and Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (not published) have a direct effect between Member States as regards the introduction of new restrictions on the access to employment of workers legally resident and employed in the territory of the contracting States (Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraphs 18 and 26).
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18 Similarly, Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 contain an unequivocal "standstill" clause regarding the introduction of new restrictions on access to the employment of workers legally resident and employed in the territory of the contracting States .
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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).
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43. À cet égard, selon une jurisprudence constante, l’indemnité de dépaysement prévue à l’article 69 du statut et dont les modalités d’octroi sont précisées à l’article 4, paragraphe 1, de l’annexe VII du même statut, disposition dans laquelle figure la notion de «services effectués pour un autre État», a pour objet de compenser les charges et désavantages particuliers résultant de la prise de fonctions auprès des Communautés pour les fonctionnaires qui sont, de ce fait, obligés de transférer leur résidence de l’État de leur domicile à l’État d’affectation et de s’intégrer dans un nouveau milieu. La notion de dépaysement dépend également de la situation subjective du fonctionnaire, à savoir de son degré d’intégration dans le nouveau milieu résultant, par exemple, de sa résidence habituelle ou de l’exercice d’une activité professionnelle principale (voir arrêts du 15 septembre 1994, Magdalena Fernández/Commission, C‑452/93 P, Rec. p. I‑4295, point 20, et du 21 juin 2007, Commission/Hosman-Chevalier, C‑424/05 P, non encore publié au Recueil, point 35).
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20 As the Court of Justice has consistently held, the purpose of the expatriation allowance is to compensate officials for the extra expense and inconvenience of taking up employment with the Communities if they have been thereby obliged to change their residence and move to the country of employment and to integrate themselves in a new environment. Furthermore, the concept of expatriation also depends on the personal position of an official, that is to say, on the extent to which he is integrated in his new environment, which is demonstrated for example, by habitual residence or by the main occupation pursued (see the judgment in Case 201/88 Atala-Palmerini v Commission [1989] ECR 3109, paragraph 9).
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29. As noted by the Advocate General in points 79 to 81 of his Opinion, under Article 9(1) of that regulation, Member States enjoy a margin of discretion concerning the choice of penalties which they adopt in order to ensure compliance with the obligation to declare laid down in Article 3 of that regulation, provided that a breach of that obligation can be penalised in a simple, effective and efficient way, and without the competent authorities necessarily having to take account of other circumstances, such as intention or recidivism.
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32. In that context, the Verwaltungsgerichtshof Baden-Württemberg decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. On Articles 2, 3 and 7 of [Directive 2004/38]:
(a) Does “family member” include, in particular in the light of Articles 7 and 24 of the [Charter of Fundamental Rights (“the Charter”)] and Article 8 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, “the ECHR”)], on an extended interpretation of Article 2(2)(d) of Directive 2004/38, a parent who is a third-country national, has parental responsibility for a child who is a Union citizen entitled to freedom of movement, and is not maintained by that child?
(b) If so, does Directive 2004/38 apply to that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, on an extended interpretation of Article 3(1) of the directive, even where there is no “accompanying” or “joining” with respect to the Member State of origin of the child who is a Union citizen and has moved away?
(c) If so, does it follow that that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, has a right of residence for more than three months in the Member State of origin of the child who is a Union citizen, on an extended interpretation of Article 7(2) of Directive 2004/38, at least as long as parental responsibility subsists and is actually exercised?
2. On Article 6(1) TEU in conjunction with the Charter:
(a) (i) Is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter simply where the subject‑matter of the dispute depends on a national law (or part of a law) which inter alia – but not only – transposed directives?
(ii) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter simply because the claimant is possibly entitled to a right of residence under Union law and could accordingly, under the first sentence of Paragraph 5(2) of the FreizügG/EU, claim a residence card for a family member of a Union citizen which has its legal basis in the first sentence of Article 10(1) of [Directive 2004/38]?
(iii) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter, in accordance with the case‑law deriving from Case C‑260/89 ERT [1991] ECR I‑2925, paragraphs 41 to 45, where a Member State restricts the right of residence of the father who is a third-country national with parental responsibility for a Union citizen who is a minor and resides predominantly with her mother in another Member State of the Union because of the mother’s employment?
(b) (i) If the Charter is applicable, can a right of residence under European Union law for the father who is a third-country national be derived directly from Article 24(3) of the Charter, at least as long as he has and actually exercises parental responsibility for his child who is a Union citizen, even if the child resides predominantly in another Member State of the Union?
(ii) If not, does it follow from the freedom of movement of the child who is a Union citizen under Article 45(1) of the Charter, possibly in conjunction with Article 24(3) of the Charter, that the father who is a third-country national has a right of residence under European Union law, at least as long as he has and actually exercises parental responsibility for his child who is a Union citizen, so that in particular the freedom of movement of the child who is a Union citizen is not deprived of all practical effect?
3. On Article 6(3) TEU in conjunction with the general principles of European Union law:
(a) Can the “unwritten” fundamental rights of the European Union developed in the Court’s case‑law from Case 29/69 Stauder [1969] ECR 419, paragraph 7, up to, for example, Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 75, be applied in full even if the Charter is not applicable in the specific case; in other words, do the fundamental rights which continue to apply as general principles of Union law under Article 6(3) TEU stand autonomously and independently alongside the new fundamental rights laid down in the Charter in accordance with Article 6(1) TEU?
(b) If so, can a right of residence under European Union law for the purpose of the effective exercise of parental responsibility be inferred from the general principles of Union law, in particular in the light of the right to respect for family life under Article 8 of the ECHR, for a father, who is a third-country national, of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation?
4. On Article 21(1) TFEU in conjunction with Article 8 of the ECHR:
If Article 6(1) or (3) TEU does not lead to a right of residence under European Union law for the claimant, can, in accordance with Case C‑200/02 Zhu and Chen [2004] ECR I‑9925, paragraphs 45 to 47, a right of residence under European Union law for the purpose of the effective exercise of parental responsibility be inferred, under Article 21(1) TFEU, possibly in the light of Article 8 of the ECHR, from the freedom of movement enjoyed by a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation, for the father, who is a third-country national, in the Member State of origin of the child who is a Union citizen?
5. On Article 10 of [Directive 2004/38]:
If a right of residence under European Union law is taken to exist, is a parent who is a third-country national in the claimant’s situation entitled to the issue of a “residence card for a family member of a Union citizen”, possibly in accordance with the first sentence of Article 10(1) of the directive?’
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43 In particular, where a Member State relies on the combined provisions of Articles 56 and 66 in order to justify rules which are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by the combined provisions of Articles 56 and 66 only if they are compatible with the fundamental rights the observance of which is ensured by the Court.
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46. The imposition of a penalty payment is not, therefore, justified.
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18 If in its judgment in Maier (paragraphs 11 and 12) the Court held that it is the lessee, not the lessor, who is the producer, the same must apply in the case of a farmer who produces a quantity of milk from the parcels of owned and leased land which he operates himself in his capacity of owner and lessee respectively.
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11 Taken together, those definitions show that the term "producers" in Article 3a of Regulation No 1546/88 refers only to farmers who, for the purposes of milk production, operate all the production units on their own account. Where a holding has been let, those conditions are fulfilled only by the lessee, who enjoys the right to operate the holding, and not by the lessor, the landlord who, by the very fact of letting the holding, has transferred that right to the lessee.
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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.
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34. Moreover, the existence of a likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see SABEL, paragraph 22; Lloyd Schuchfabrik Meyer , paragraph 18; Case C-425/98 Marca Mode [2000] ECR I-4861, paragraph 40; order in Matratzen v OHIM, paragraph 28; Medion , paragraph 27; and Case C-206/04 P Mülhens v OHIM [2006] ECR I-2717, paragraph 18).
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27. The existence of a likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see Case C-251/95 SABEL [1997] ECR I-6191, paragraph 22; Lloyd Schuhfabrik Meyer , cited above, paragraph 18, and Case C-425/98 Marca Mode [2000] ECR I-4861, paragraph 40, in addition to, in relation to Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), drafted in terms substantially identical to those of Article 5(1)(b) of the directive, the order of 28 April 2004 in Case C-3/03 P Matratzen Concord v OHIM [2004] ECR I-3657, paragraph 28).
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23 It follows from all the foregoing considerations that network cards must be classified under heading No 8471 of the Combined Nomenclature as units of automatic data processing machines.
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26. In the context of that cooperation, 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 ( Schneider , paragraph 21 and case-law cited).
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21. In the context of that cooperation, 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 by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59; Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; and Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18).
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25. Conformément à l’article 17, paragraphes 3 et 4, de la sixième directive, le mode de restitution de la TVA, soit par déduction, soit par remboursement, est fonction du lieu d’établissement de l’assujetti. En effet, si l’article 17, paragraphe 3, de la sixième directive accorde, dans les conditions stipulées sous a) à c) de cette disposition, à «tout assujetti» la déduction «ou» le remboursement de la TVA, le paragraphe 4 de ce même article dispose que «le remboursement» de la TVA est effectué pour les assujettis qui ne sont pas établis à l’intérieur du pays ou ceux qui ne sont pas établis sur le territoire de la Communauté selon les modalités prévues respectivement par les huitième et treizième directives.
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15. Next, it must be borne in mind that, in accordance with settled case-law, in the context of the cooperation between the Court and the national courts provided for by 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 for a preliminary ruling concern the interpretation of Community law, the Court is, in principle, bound to give a ruling (see, in particular, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59, and Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I-0000, paragraph 26).
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26. In accordance with settled case-law, in the context of the cooperation between the Court and the national courts provided for by 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 for a preliminary ruling concern the interpretation of Community law, the Court is, in principle, bound to give a ruling (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59, and Case C-316/04 Stichting Zuid-Hollandse Milieufederatie [2005] ECR I-9759, paragraph 29).
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12 Those conditions are intended to ensure the correct and straightforward application of the exemptions and refer to measures intended to prevent any possible evasion, avoidance or abuse (Becker, cited above, paragraphs 33 and 34).
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17 In order to interpret, for that purpose, the term .consideration. in Article 11A(1)(a) of the Sixth Directive, it should be recalled that, according to settled case-law, the consideration for a supply of goods may consist of a supply of services, and so constitute the taxable amount within the meaning of that provision, if there is a direct link between the supply of goods and the supply of services and if the value of those services can be expressed in monetary terms (see, in particular, Naturally Yours Cosmetics, paragraphs 11, 12 and 16, and Empire Stores, paragraph 12).
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12 According to the judgment in Case 230/87 Naturally Yours Cosmetics Ltd v Commissioners of Customs and Excise [1988] ECR 6365, paragraphs 11, 12 and 16, the consideration for a supply of goods may consist in a provision of services, and so constitute the taxable amount within the meaning of Article 11A(1)(a) of the Sixth Directive in respect of such supply, if there is a direct link between the supply of goods and the provision of services and if the value of those services can be expressed in monetary terms.
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13 IT SHOULD BE POINTED OUT FIRST THAT THE PURPOSE OF THE PRE-LITIGATION PROCEDURE IS TO GIVE THE MEMBER STATE CONCERNED AN OPPORTUNITY, ON THE ONE HAND, TO COMPLY WITH ITS OBLIGATIONS UNDER COMMUNITY LAW AND, ON THE OTHER, TO AVAIL ITSELF OF ITS RIGHT TO DEFEND ITSELF AGAINST THE COMPLAINTS MADE BY THE COMMISSION .
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28. As a preliminary point, it is clear from the Court’s case-law that the encouragement of recruitment constitutes a legitimate aim of social policy and that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion (see, inter alia, Case C‑167/97 Seymour-Smith and Perez [1999] ECR I‑623, paragraphs 71 and 74, and Case C‑187/00 Kutz-Bauer [2003] ECR I‑2741, paragraphs 55 and 56).
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74 It is true that in paragraph 33 of the Nolte case the Court observed that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion.
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39. Toutefois, les États membres sont tenus, en vertu de l’article 4, paragraphe 3, TUE de faciliter à la Commission l’accomplissement de sa mission, consistant notamment, selon l’article 17, paragraphe 1, TUE, à veiller à l’application des dispositions du traité FUE ainsi que des dispositions prises par les institutions de l’Union européenne en vertu de celui-ci (voir, en ce sens, arrêt Commission/Italie, C‑135/05, EU:C:2007:250, point 27 et jurisprudence citée).
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56. Accordingly, if a provision such as Paragraph 10(6) of the First RGG constituted discrimination within the meaning of Article 2 of Directive 2000/78, the right to equal treatment could be claimed by an individual against a local authority, and it would not be necessary to wait for that provision to be made consistent with European Union law by the national legislature, taking account of the primacy of that law (see, to that effect, Case C‑341/08 Petersen [2010] ECR I‑0000, paragraph 81, and Georgiev , paragraph 73).
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81. Consequently, the answer to the third question is that, if legislation such as that at issue in the main proceedings, having regard to its objective, were contrary to the Directive, it would be for the national court hearing a dispute between an individual and an administrative body such as the Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe to decline to apply that legislation, even if it were prior to the Directive and national law made no provision for disapplying it.
Costs
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17 The second definition, however, refers to the function of medicinal products; it covers all products which are intended to restore, correct or modify physiological functions and which may thus have an effect on health in general.
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36
It follows that, even if all the substantive conditions giving rise to the right to the exemption of an intra-Community supply from VAT or to deduct VAT were not met, the Court has held that a taxable person who has acted in good faith and taken every step which could reasonably be required of him to satisfy himself that the transaction which he is effecting does not result in his participation in tax evasion cannot be refused that right (see, to that effect, judgments of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 68, and of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraphs 47 to 50 and 55).
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68. The reply to the third question referred must therefore be that the first subparagraph of Article 28c(A)(a) of the Sixth Directive is to be interpreted as precluding the competent authorities of the Member State of supply from requiring a supplier, who acted in good faith and submitted evidence establishing, at first sight, his right to the exemption of an intra-Community supply of goods, subsequently to account for VAT on those goods where that evidence is found to be false, without, however, the supplier’s involvement in the tax evasion being established, provided that the supplier took every reasonable measure in his power to ensure that the intra-Community supply he was effecting did not lead to his participation in such evasion.
The fourth question
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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.
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58 It is clear from the case-law of the Court that it is, in principle, for the national courts to apply the criteria to establish the liability of Member States for damage caused to individuals by breaches of Community law (Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 58), in accordance with the guidelines laid down by the Court for the application of those criteria (Brasserie du Pêcheur and Factortame, paragraphs 55 to 57; Case C-392/93 The Queen v H.M. Treasury, ex parte British Telecommunications [1996] ECR I-1631; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others v Federal Republic of Germany [1996] ECR I-4845; and Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit Internationaal and Others v Bundesamt für Finanzen [1996] ECR I-5063).
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55. As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.
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22 In addition, for the purpose of interpreting the Common Customs Tariff, the Court has consistently held that both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the Nomenclature of the Customs Cooperation Council are important means for ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation (see judgments in Wiener SI, cited above, paragraph 11 and Peacock, cited above, paragraph 10).
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32. The Framework Agreement is thus in line with the fundamental social rights enshrined in paragraph 16 of the Community Charter of the Fundamental Social Rights of Workers on equal treatment for men and women, to which the Framework Agreement refers, inter alia, at paragraph 4 of its general considerations, and which is also mentioned in the first paragraph of Article 151 TFEU, social rights which are associated with the improvement of living and working conditions and with the existence of proper social protection for workers, in the present case those who have applied for or taken parental leave (see, to that effect, Meerts , paragraph 37; Case C‑486/08 Zentralbetriebsrat der Landeskrankenhäuser Tirols [2010] ECR I‑3527, paragraph 52; and Chatzi , paragraph 36).
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36. In accordance with clause 1.1 of the Framework Agreement, parental leave is designed ‘to facilitate the reconciliation of parental and professional responsibilities for working parents’, an objective set, as paragraph 4 of the general considerations in the Framework Agreement recalls, by point 16 of the Community Charter of the Fundamental Social Rights of Workers, adopted at the European Council meeting held in Strasbourg on 9 December 1989.
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34. Disadvantageous treatment of that kind is liable to deter a Belgian company from carrying on its business through a permanent establishment situated in a Member State other than the Kingdom of Belgium and therefore constitutes a restriction prohibited in principle by the Treaty provisions relating to freedom of establishment.
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29. In that connection, given that the exemptions referred to in Article 13 of the Sixth Directive are exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person, they should be interpreted strictly (see, in particular, Commission v Ireland , paragraph 52; Case C-359/97 Commission v United Kingdom [2000] ECR I-6355, paragraph 64, and Sinclair Collis , paragraph 23).
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23. Secondly, the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, inter alia , Commission v Ireland , paragraph 52, and Case C-150/99 Stockholm Lindöpark [2001] ECR I-493, paragraph 25).
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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.
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246. It follows that a plea must be declared inadmissible in so far as it seeks a general re-examination of the fines (see Baustahlgewebe v Commission , paragraph 129, and British Sugar v Commission , paragraph 49).
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129 As regards the allegedly disproportionate nature of the fine, it must be borne in mind that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law (BPB Industries and British Gypsum v Commission, cited above, paragraph 34, and Ferriere Nord v Commission, cited above, paragraph 31). This complaint must therefore be declared inadmissible in so far as it seeks a general re-examination of the fines or, in the alternative, to have the fine reduced to a reasonable amount. The same applies to the complaint, not made by the appellant before the Court of First Instance, concerning its alleged ignorance of the illicit nature of the conduct designed to defend the German structural crisis cartel, as pointed out by the Advocate General in point 286 of his Opinion.
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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.
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26. It must be pointed out in this regard that the Court may, of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure, if it takes the view that it lacks sufficient information or that the case should be decided on the basis of an argument which has not been debated between the parties (see Case C-309/99 Wouters and Others [2002] ECR I-1577, paragraph 42, and Case C-210/03 Swedish Match [2004] ECR I-11893, paragraph 25).
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25. The Court may also, of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure, in accordance with Article 61 of the Rules of Procedure, if it considers that it lacks sufficient information or that the case should be decided on the basis of an argument which has not been debated between the parties (see Case C-309/99 Wouters and Others [2002] ECR I-1577, paragraph 42, and Case C-470/00 P Parliament v Ripa di Meana and Others [2004] ECR I-0000, paragraph 33). In the present case, however, the Court, after hearing the Advocate General, considers that it has all the information necessary for it to answer the questions referred for a preliminary ruling. The application for the oral procedure to be reopened must therefore be dismissed.
The questions referred for a preliminary ruling
Question 2
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52. Aux fins de satisfaire à cet objectif, les périodes équivalentes de repos compensateur, au sens de l’article 17, paragraphe 2, de la directive 2003/88, doivent succéder immédiatement au temps de travail qu’elles sont censées compenser, afin d’éviter la survenance d’un état de fatigue ou de surmenage du travailleur en raison de l’accumulation de périodes de travail consécutives (voir, en ce sens, arrêt Jaeger, C‑151/02, EU:C:2003:437, points 94 et 95).
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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).
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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).
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11 CONSEQUENTLY, THE CONCEPT OF "MATTERS RELATING TO A CONTRACT" IS TO BE REGARDED AS AN INDEPENDENT CONCEPT WHICH, FOR THE PURPOSE OF THE APPLICATION OF THE CONVENTION, MUST BE INTERPRETED BY REFERENCE PRINCIPALLY TO THE SYSTEM AND OBJECTIVES OF THE CONVENTION IN ORDER TO ENSURE THAT IT IS FULLY EFFECTIVE .
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15. National provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned ( Terhoeve , paragraph 39; Sehrer , paragraph 33; and Kranemann , paragraph 26).
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26. Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned ( Bosman , cited above, paragraph 96, Terhoeve , cited above, paragraph 39, and Graf , cited above, paragraph 23, Case C-224/01 Köbler [2003] ECR I-10239, paragraph 74, and Case C-232/01 Van Lent [2003] ECR I-11525, paragraph 16).
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42 It must be observed that the conditions for taking up and pursuing regulated professions have been the subject of Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25) and Commission Directive 95/43/EC of 20 July 1995 (OJ 1995 L 184, p. 21), which amended Annexes C and D to Directive 92/51.
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65
It is settled case-law of the Court that that concept covers the value of the concerned undertaking’s sales of goods or services, thereby reflecting its real economic situation (see, to that effect, judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraphs 16 to 18 and the case-law cited).
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17
In that context, it is permissible, for the purpose of setting the amount of the fine, to have regard both to the overall turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of its size and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement (judgment of 9 July 2015 in InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 47 and the case-law cited).
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62. It follows from the above that the interpretation according to which the concept of ‘executing Member State’ refers only to the Member State which carried out the last surrender of the person concerned reinforces the system of surrender established by the Framework Decision for the good of the area of freedom, security and justice, in accordance with the mutual confidence which must exist between the Member States. By limiting the situations in which the executing judicial authorities of the Member States involved in the successive surrenders of the same person may refuse to consent to the execution of a European arrest warrant, such an interpretation only facilitates the surrender of requested persons, in accordance with the principle of mutual recognition set out in Article 1(2) of the Framework Decision, which constitutes the essential rule introduced by that decision (see, to that effect, Wolzenburg , paragraphs 58 and 59).
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41. In interpreting a provision of Community law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (see, inter alia, Case 292/82 Merck [1983] ECR 3781, paragraph 12; Case 337/82 St. Nikolaus Brennerei [1984] ECR 1051, paragraph 10; and Case C-223/98 Adidas [1999] ECR I-7081, paragraph 23).
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23 It should be recalled, at the outset, that according to the settled case-law of the Court, in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (see, inter alia, the judgments in Case 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12; and in Case 337/82 St. Nikolaus Brennerei v Hauptzollamt Krefeld [1984] ECR 1051, paragraph 10).
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142. As regards the Treaty provisions relating to the freedoms of movement, since the legislation at issue applies to payments of dividends to resident companies irrespective of the size of their holding, it is capable of coming within the scope of both Article 43 EC on freedom of establishment and Article 56 EC on the free movement of capital.
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42. Even if the system of penalties in the case in the main proceedings is a system of strict liability, it must be recalled that, according to the case-law of the Court, such a system is not, in itself, disproportionate to the objectives pursued, if that system is such as to encourage the persons concerned to comply with the provisions of a regulation and where the objective pursued is a matter of public interest which may justify the introduction of such a system (see judgment in Urbán , EU:C:2012:64, paragraph 48 and the case-law cited).
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48. According to the Court, the imposition of a system of strict liability is not disproportionate in relation to the objectives pursued if that system is such as to encourage the persons concerned to comply with the provisions of a regulation and where the objective pursued is a matter of public interest which may justify the introduction of such a system (see, to that effect, Hansen , paragraph 19).
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46. Furthermore, it should be noted that entry into the accounts and notification of the amount of customs duty owed, as well as the crediting of the own resources, does not prevent the debtor challenging, under Article 243 et seq . of the Customs Code, the obligation imposed on him by means of all the arguments at his disposal.
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28 However, as the Court held in Case C-231/94 Faaborg-Gelting Linien v Finanzamt Flensburg [1996] ECR I-2395, paragraphs 12 to 14, concerning the classification of restaurant transactions, where the transaction in question comprises a bundle of features and acts, regard must first be had to all the circumstances in which that transaction takes place.
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13 The supply of prepared food and drink for immediate consumption is the outcome of a series of services ranging from the cooking of the food to its physical service in a recipient, whilst at the same time an infrastructure is placed at the customer' s disposal, including a dining room with appurtenances (cloak rooms, etc.), furniture and crockery. People, whose occupation consists in carrying out restaurant transactions, will have to perform such tasks as laying the table, advising the customer and explaining the food and drink on the menu to him, serving at table and clearing the table after the food has been eaten.
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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.
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34. It is true that, in the context of measures laid down by a Member State in order to prevent or mitigate the imposition of a series of charges to tax on, or the double taxation of, profits distributed by a resident company, resident shareholders receiving dividends are not necessarily in a situation which is comparable to that of shareholders receiving dividends who are resident in another Member State (see, to that effect, Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-0000, paragraphs 57 to 65).
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59. It must be held in that regard, first, that to require the Member State in which the company making the distribution is resident to ensure that profits distributed to a non-resident shareholder are not liable to a series of charges to tax or to economic double taxation, either by exempting those profits from tax at the level of the company making the distribution or by granting the shareholder a tax advantage equal to the tax paid on those profits by the company making the distribution, would mean in point of fact that that State would be obliged to abandon its right to tax a profit generated through an economic activity undertaken on its territory.
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11 FURTHERMORE , IN ITS JUDGMENT OF 22 NOVEMBER 1978 ( CASE 33/78 SOMAFER ( 1978 ) ECR 2183 ), THE COURT STATED THAT ' ' THE CONCEPT OF A BRANCH , AGENCY OR OTHER ESTABLISHMENT IMPLIES A PLACE OF BUSINESS WHICH HAS THE APPEARANCE OF PERMANENCY , SUCH AS THE EXTENSION OF A PARENT BODY , HAS A MANAGEMENT AND IS MATERIALLY EQUIPPED TO NEGOTIATE BUSINESS WITH THIRD PARTIES SO THAT THE LATTER , ALTHOUGH KNOWING THAT THERE WILL IF NECESSARY BE A LEGAL LINK WITH THE PARENT BODY , THE HEAD OFFICE OF WHICH IS ABROAD , DO NOT HAVE TO DEAL DIRECTLY WITH SUCH PARENT BODY BUT MAY TRANSACT BUSINESS AT THE PLACE OF BUSINESS CONSTITUTING THE EXTENSION ' ' .
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88. Compliance with the principle of non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C‑44/94 Fishermen’s Organisations and Others [1995] ECR I‑3115, paragraph 46; Joined Cases C‑87/03 and C‑100/03 Spain v Council [2006] ECR I-2915, paragraph 48; and Case C‑141/05 Spain v Council [2007] ECR I-9485, paragraph 40).
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48. Compliance with the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, in particular, Case C‑44/94 Fishermen’s Organisations and Others [1995] ECR I‑3115, paragraph 46).
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6. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9, et du 17 janvier 2008, Commission/Allemagne, C‑152/05, Rec. p. I‑39, point 15).
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66. As the national court itself pointed out, and as all the interested parties who submitted observations to the Court have also accepted, Article 39(1) of the latter regulation – which, as amended by Article 1(11)(a) of Regulation No 118/2004, introduced an upper limit on the reduction applicable for non‑compliance with the rules on identification and registration laid down by Regulation No 1760/2000, in respect of bovine animals not claimed for aid – constitutes such a ‘subsequent amendment’ of the system of penalties defined in Article 10c of Regulation No 3887/92. Article 39(1), which replaced Article 10c, is aimed, in the context of the rules on aid for bovine animals established by Regulation No 1254/1999, at limiting the severity of the penalties applicable for that irregularity (see, by analogy, Campina , paragraphs 36 to 38).
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37. By contrast, pursuant to the first indent of the second subparagraph of Regulation No 536/93, the financial penalty for a failure to respect the deadline of 15 May such as that at issue in the main proceedings, first, corresponds to 0.1% of the quantities of milk and milk equivalent delivered to the purchaser by the producers and, second, may not be less than ECU 500 nor more than ECU 20 000.
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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.
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82. Thus, the Court has held that if a national law merely encourages or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 36 to 73, and CIF , paragraph 56).
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56 MOREOVER THESE STATEMENTS TALLY WITH THE AIMS INDICATED IN THE REGULATIONS IN QUESTION, IN THAT THEY ARE DESIGNED TO LIMIT IMPORTS TO THE MINIMUM REQUIRED TO MAKE GOOD THE AMOUNT BY WHICH ITALIAN PRODUCTION FALLS SHORT OF DEMAND, TO HARMONIZE THE COST OF FOREIGN SUGAR WITH THAT OF NATIONAL SUGAR AND TO KEEP PRICES IN ITALY AT A UNIFORM LEVEL AND RELATIVELY LOW .
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115. As regards the proportionality of the infringement of the right of property at issue, where such an infringement may be established, it is sufficient to state that Directive 96/61 operates a balance between the requirements of that right and the requirements linked to protection of the environment.
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48. In that regard, it must be borne in mind that where a national court or tribunal considers that one or more arguments for invalidity of a European Union act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary ruling on the act’s validity, the Court alone having jurisdiction to declare a European Union act invalid (judgments in IATA and ELFAA , C‑344/04, EU:C:2006:10, paragraphs 27 and 30 and the case law cited, and Inuit Tapiriit Kanatami and Others v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 96).
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96. In that regard, it must be borne in mind that where a national court or tribunal considers that one or more arguments for invalidity of a European Union act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary ruling on the act’s validity, the Court alone having jurisdiction to declare a European Union act invalid (Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraphs 27 and 30 and the case-law cited).
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29
As regards the condition relating to the pursuit of a legitimate interest, as the Advocate General stated in points 65, 79 and 80 of his Opinion, there is no doubt that the interest of a third party in obtaining the personal information of a person who damaged their property in order to sue that person for damages can be qualified as a legitimate interest (see, to that effect, judgment of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 53). That analysis is supported by Article 8(2)(e) of Directive 95/46, which provides that the prohibition on the processing of certain types of personal data, such as those revealing racial origin or political opinions, is not to apply, in particular, where the processing is necessary for the establishment, exercise or defence of legal claims.
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27. Further, according to settled case-law, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see Case C‑304/02 Commission v France [2005] ECR I‑6263, paragraph 30, and Case C-177/04 Commission v France [2006] ECR I-0000, paragraph 20).
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30. It follows that the reference date for assessing the alleged breach of obligations is the date upon which the period laid down in the supplementary reasoned opinion of 6 June 2000 expired, that is to say two months after notification of that opinion (Case C-474/99 Commission v Spain [2002] ECR I‑5293, paragraph 27, and Case C-33/01 Commission v Greece [2002] ECR I‑5447, paragraph 13).
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36 Accordingly, the answer to the third question must be that a Turkish worker who fulfils the requirements of the first or third indent of Article 6(1) of Decision No 1/80 may rely directly on those provisions in order to obtain the renewal not only of his work permit but also of his residence permit.
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25
In that regard the Court has held that, if as a general rule the price actually paid or payable for the goods forms the basis for calculating the customs value, that price is a factor that potentially must be adjusted where necessary in order to avoid the setting of an arbitrary or fictitious customs value (see, to that effect, judgment of 12 December 2013 in Christodoulou and Others, C‑116/12, EU:C:2013:825, paragraph 39 and the case-law cited).
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39. À cet égard, la Cour a précisé que, si le prix effectivement payé ou à payer pour les marchandises forme, en règle générale, la base de calcul de la valeur en douane (voir, en ce sens, arrêt Sommer, précité, point 22), ce prix est une donnée qui doit éventuellement faire l’objet d’ajustements lorsque cette opération est nécessaire pour éviter de déterminer une valeur en douane arbitraire ou fictive (arrêt du 19 mars 2009, Mitsui & Co. Deutschland, C‑256/07, Rec. p. I‑1951, point 24).
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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.
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39. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see, inter alia, Interporc v Commission , paragraph 17, and Commission v CAS Succhi di Frutta , paragraph 50).
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50. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the judgment in Interporc , cited above, at paragraph 17).
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73. Having regard to all the foregoing, the answer to the question referred is that Article 11(1) of Directive 92/85 must be interpreted as meaning that a pregnant worker who, in accordance with Article 5(2) thereof, has been temporarily transferred on account of her pregnancy to a job in which she performs tasks other than those she performed prior to that transfer is not entitled to the pay she received on average prior to that transfer. In addition to the maintenance of her basic salary, such a worker is entitled, pursuant to Article 11(1), to pay components or supplementary allowances relating to her professional status, such as allowances relating to her seniority, her length of service and her professional qualifications. Although Article 11(1) of Directive 92/85 does not preclude the use of a method of calculating remuneration to be paid to such a worker based on the average amount of the allowances linked to working conditions of all the air crew in the same pay grade during a given reference period, the failure to take account of those pay components or supplementary allowances must be regarded as contrary to that provision.
Costs
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65. That right, which is set out in Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) from which that directive permits no derogation, provides that every worker is entitled to a period of paid annual leave of at least four weeks. The right to paid annual leave which, according to settled case-law, must be regarded as a particularly important principle of EU social law, is thus granted to every worker, whatever his place of employment (see, to that effect, judgments in Schultz-Hoff and Others , C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 54, and Lock , C‑539/12, EU:C:2014:351, paragraph 14).
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14. According to the Court’s settled case-law, the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Directive 93/104 itself, a directive now codified by Directive 2003/88 (see Case C‑214/10 KHS EU:C:2011:761, paragraph 23 and the case-law cited). That right is, moreover, expressly guaranteed by Article 31(2) of the Charter of Fundamental Rights of the European Union, which Article 6(1) TEU recognises as having the same legal value as the Treaties.
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33. It follows that a situation such as that at issue in the main proceedings falls outside the general frameworks established by Directives 2000/43 and 2000/78 respectively for combating certain forms of discrimination.
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18. In that connection, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning EU law in situations in which the facts in the main proceedings fell outside the direct scope of that law, provided always that those provisions had been rendered applicable by the national law, which adopted, for solutions applied to purely internal situations, the same approach as that for solutions provided for under EU law. In such cases, according to settled case-law, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (judgment in Allianz Hungária Biztosító and Others , C‑32/11, EU:C:2013:160, paragraph 20).
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20. Applying that case-law, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning European Union law in situations where the facts of the cases being considered by the national courts were outside the direct scope of European Union law but where those provisions had been rendered applicable by domestic law, which adopted, for internal situations, the same approach as that provided for under European Union law. In those circumstances, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from European Union law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, to that effect, inter alia, Joined Cases C‑297/88 and C‑197/89 Dzodzi [1990] ECR I‑3763, paragraph 37; Case C‑28/95 Leur-Bloem [1997] ECR I‑4161, paragraphs 27 and 32; Case C‑1/99 Kofisa Italia [2001] ECR I‑207, paragraph 32; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 19; Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 21; Case C‑352/08 Modehuis A. Zwijnenburg [2010] ECR I‑4303, paragraph 33; and Case C‑603/10 Pelati [2012] ECR I‑0000, paragraph 18).
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58. Selon une jurisprudence constante de la Cour, un recours introduit postérieurement à un autre, qui oppose les mêmes parties, est fondé sur les mêmes moyens et tend à l’annulation du même acte juridique, doit être rejeté comme irrecevable pour cause de litispendance (voir, notamment, arrêts du 22 septembre 1988, France/Parlement, 358/85 et 51/86, Rec. p. 4821, point 12, ainsi que du 24 novembre 2005, Italie/Commission, C‑138/03, C-324/03 et C‑431/03, Rec. p. I‑10043, point 64).
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52. In that regard, is it is to be noted that, in accordance with settled case-law, consumer protection can justify interference with the freedom to provide services (see, to that effect, Joined Cases C‑34/95 to C‑36/95 De Agostini and TV-Shop [1997] ECR I‑3843, paragraph 53; Case C‑243/01 Gambelli and Others [2003] ECR I‑13031, paragraph 67; and Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others [2007] ECR I‑0000, paragraph 46).
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67. First of all, whilst in Schindler , Läärä and Zenatti the Court accepted that restrictions on gaming activities may be justified by imperative requirements in the general interest, such as consumer protection and the prevention of both fraud and incitement to squander on gaming, restrictions based on such grounds and on the need to preserve public order must also be suitable for achieving those objectives, inasmuch as they must serve to limit betting activities in a consistent and systematic manner.
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42. The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (Baustahlgewebe , paragraph 29, and Limburgse Vinyl Maatschappij and Others , cited above, paragraph 187).
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17. In that regard, it must be borne in mind that the right to a refund of charges levied in a Member State in breach of the rules of European Union law is the consequence and complement of the rights conferred on individuals by provisions of European Union law prohibiting such charges. The Member State is therefore required in principle to repay charges levied in breach of European Union law (see Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12; Joined Cases C‑441/98 and C‑442/98 Michaïlidis [2000] ECR I‑7145, paragraph 30; Case C‑309/06 Marks & Spencer [2008] ECR I‑2283, paragraph 35; and Case C‑264/08 Direct Parcel Distribution Belgium [2010] ECR I‑0000, paragraph 45).
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45. According to well-established case-law, the right to a refund of charges levied in a Member State in breach of the rules of Community law is the consequence and complement of the rights conferred on individuals by Community provisions as interpreted by the Court. The Member State is therefore required in principle to repay charges levied in breach of Community law (see, inter alia, Case C-524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraph 110 and case-law cited).
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35. En outre, dans le cadre de la procédure prévue à l’article 114, paragraphe 4, TFUE, la Commission doit dûment prendre en considération tous les éléments pertinents et exposer, dans sa décision finale, les considérations essentielles l’ayant amenée à prendre celle-ci (voir, par analogie, s’agissant des conditions d’application de l’article 95, paragraphe 5, du traité CE, devenu article 114, paragraphe 5, TFUE, arrêt Pays-Bas/Commission, C‑405/07, EU:C:2008:613, point 67).
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98
Where a claim for damages is brought before the General Court, which has jurisdiction under Article 256(1) TFEU, it must determine such a claim sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised (see, to that effect, judgments of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 67; of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 58; and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 56).
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67. Where a claim for damages is brought before the General Court, which has jurisdiction under Article 256(1) TFEU, it must determine such a claim sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised ( Groupe Gascogne v Commission EU:C:2013:770, paragraph 90).
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15 Finally, it should be noted that the contested national provision affords no additional social protection to the persons concerned, who are affiliated to the social security and pension scheme of the Member State in which they pursue their principal employment . It follows that the impediment to the pursuits of occupational activities in more than one Member State may not in any event be justified on that basis .
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112. These aspects are elaborated on in Articles 30 EA to 39 EA, which make up Chapter 3 of Title II of the EAEC Treaty, and are, as the Court has noted earlier, intended to ensure the consistent and effective protection of the health of the general public against the dangers arising from ionising radiations, whatever their source and whatever the categories of persons exposed to such radiations (Case C‑70/88 Parliament v Council [1991] ECR I‑4529, paragraphs 13 and 14).
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14 Furthermore, since the Parliament is not a legal person it cannot bring an action before the Court under the second paragraph of the articles in question, the scheme of which would, in any event, be inappropriate to an action for annulment brought by the Parliament .
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11 One of the basic data of this method is the figure relating to the total domestic use of cereals. In the present case, Eurostat published on 21 July 1988, that is a year after the end of the 1986/87 marketing year, the figure of 5 141 000 tonnes which had been notified by the Hellenic authorities and which the Commission took as basis for the calculation which led to the contested financial adjustment. The amount of that adjustment was notified by letter of 10 February 1989 to the Hellenic authorities which, by a telex message of 17 April 1989, notified a new figure, namely 4 489 000 tonnes, that is 652 000 tonnes less than the first. The Commission refused to take it into account and on 15 November 1989 adopted the contested decision. On 6 December 1989, Eurostat published the amended figure.
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69. Furthermore, to assume that all the shareholders of a public limited company are engaged professionally in the sector within which the company objects fall is the very negation of the free movement of capital, which applies inter alia to portfolio investments, that is to say, the acquisition of securities on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking (Joined Cases C-282/04 and C-283/04 Commission v Netherlands [2006] ECR I‑9141, paragraph 19). It is precisely this type of investment that investors from other Member States who are seeking to diversify their investments would be liable to make.
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19. In the absence of a definition in the EC Treaty of ‘movements of capital’ for the purposes of Article 56(1) EC, the Court has recognised the nomenclature annexed to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (an article repealed by the Treaty of Amsterdam) (JO 1988 L 178, p. 5) as having indicative value. Movements of capital for the purposes of Article 56(1) EC thus include in particular direct investments in the form of participation in an undertaking through the holding of shares which confers the possibility of effectively participating in its management and control (‘direct’ investments) and the acquisition of shares on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking (‘portfolio’ investments) (see, to that effect, Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraph 21; Commission v France , paragraphs 36 and 37, and Commission v United Kingdom , paragraphs 39 and 40).
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155. In those circumstances, it follows that the broad discretion granted by Regulation No 2887/2000 to the NRAs as regards the assessment of pricing aspects of unbundled access to the local loop also concerns the evaluation of the costs incurred by the notified operator.
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39
Furthermore, although the cases giving rise to those judgments concerned asset-freezing measures adopted in the specific context of the fight against international terrorism, it is clear that the obligation to establish that restrictive measures targeting individual persons and entities are well founded, which is derived from that case-law, applies equally with regard to the adoption of asset-freezing restrictive measures aimed at applying pressure on the Islamic Republic of Iran, such as those covering Safa Nicu Sepahan, given, in particular, the individual nature of those restrictive measures and the considerable impact they are likely to have on the rights and freedoms of the persons and entities subject to them (see, in that regard, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 361 and 375).
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361. As the Court has already held in connection with another Community system of restrictive measures of an economic nature also giving effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations, the importance of the aims pursued by a Community act is such as to justify negative consequences, even of a substantial nature, for some operators, including those who are in no way responsible for the situation which led to the adoption of the measures in question, but who find themselves affected, particularly as regards their property rights (see, to that effect, Bosphorus , paragraphs 22 and 23).
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50. En ce qui concerne, en deuxième lieu, l’argument tiré d’une violation du principe d’égalité de traitement, il suffit de rappeler, ainsi qu’il ressort du point 38 du présent arrêt, que c’est dans le seul cadre de l’article 107, paragraphe 3, sous c), TFUE, que doit être appréciée la légalité d’une décision de la Commission et non au regard d’une pratique décisionnelle antérieure de celle-ci.
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24
Those requirements apply, in principle, mutatis mutandis to contracting authorities’ obligation to indicate, in the contract notice or the tender specifications, the ‘relative weighting’ of each of the award criteria. Thus, the Court has held that a contracting authority may not, in principle, apply weighting rules which it has not previously brought to the tenderers’ attention (see, to that effect, judgment of 24 January 2008 in Lianakis and Others, C‑532/06, EU:C:2008:40, paragraphs 38 and 42).
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38. Therefore, a contracting authority cannot apply weighting rules or sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention (see, by analogy, in relation to public works contracts, Universale-Bau and Others , paragraph 99).
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Il y a lieu de rappeler que, selon une jurisprudence constante, la lettre de mise en demeure a pour but, d’une part, de circonscrire
l’objet du litige et d’indiquer à l’État membre qui est invité à présenter ses observations les éléments nécessaires à la
préparation de sa défense et, d’autre part, de permettre à celui-ci de se mettre en règle avant que la Cour ne soit saisie
(voir, notamment, arrêts du 28 mars 1985, Commission/Italie, 274/83, non publié, EU:C:1985:148, point 19, et du 7 avril 2011,
Commission/Portugal, C‑20/09, non publié, EU:C:2011:214, point 19 ainsi que jurisprudence citée).
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38
According to the case-law of the Court, determination of the measures which may, in a particular case, reasonably be required of a taxable person wishing to exercise a right conferred by the VAT Directive in order to satisfy himself that his transactions are not connected with fraud committed by a trader at an earlier stage of a transaction depends essentially on the circumstances of that particular case (see, by analogy, judgments of 21 June 2012, Mahagében and Dávid, C‑80/11 and C‑142/11, EU:C:2012:373, paragraphs 53, 54 and 59, and of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 53).
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53. According to the Court’s case-law, traders who take every precaution which could reasonably be required of them to ensure that their transactions are not connected with fraud, be it the fraudulent evasion of VAT or other fraud, must be able to rely on the legality of those transactions without the risk of losing their right to deduct the input VAT (see Kittel and Recolta Recycling , paragraph 51).
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20 THAT CANNOT BE ALTERED BY THE FACT THAT THE COMMISSION, IN A RECOMMENDATION AND IN SUCCESSIVE DECISIONS, CONSISTENTLY STATED THAT THE SUPPLEMENTARY AGREEMENTS IN QUESTION COMPLIED WITH THE DIRECTIVE' S REQUIREMENTS OR BY THE FACT THAT ONE OF THOSE AGREEMENTS WAS ANNEXED TO A COMMISSION DECISION AND PUBLISHED WITH IT IN THE OFFICIAL JOURNAL . THE COMMISSION WAS MERELY ESTABLISHING THAT THE CONDITION LAID DOWN IN ARTICLE 2*(2 ) OF THE COUNCIL DIRECTIVE WAS SATISFIED, AND THE AGREEMENT WAS NOT THEREBY INCORPORATED IN THE TEXT OF THE DECISION OR TURNED INTO A COMMUNITY MEASURE .
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29. According to settled case‑law, the principles laid down in Articles 39 EC to 41 EC must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision No 1/80 (see, inter alia, Case C‑434/93 Bozkurt [1995] ECR I‑1475, paragraphs 14, 19 and 20, and Case C‑467/02 Cetinkaya [2004] ECR I‑10895, paragraph 42).
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14 It should first be noted that Decision No 2/76 is presented, in Article 1 thereof, as constituting a first stage in securing freedom of movement for workers between the Community and Turkey which was to last for four years as from 1 December 1976. Section 1 of Chapter II, headed "Social Provisions", of Decision No 1/80, which includes Article 6, constitutes a further stage in securing freedom of movement for workers and has applied, pursuant to Article 16, since 1 December 1980. As from that date, Article 6 of Decision No 1/80 has replaced the corresponding, less favourable, provisions of Decision No 2/76. That being so, for the purposes of giving a helpful answer to the questions submitted to the Court, and having regard to the times at which the facts summarized above occurred, it is solely to Article 6 of Decision No 1/80 that reference should be made.
The first question
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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.
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36
Accordingly, it is necessary to determine, first of all, whether VLRD was established for the specific purpose of meeting needs in the general interest, the activity of which meets such needs before, if necessary, examining whether or not those needs have an industrial or commercial character (see, to that effect, judgment of 22 May 2003, Korhonen and Others, C‑18/01, EU:C:2003:300, paragraph 40).
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40. The Court has already held that the second subparagraph of Article 1(b) of Directive 92/50 draws a distinction between needs in the general interest not having an industrial or commercial character and needs in the general interest having an industrial or commercial character (see, inter alia , BFI Holding , paragraph 36, and Agorà and Excelsior , paragraph 32). To give a useful answer to the questions put, it must first be ascertained whether activities such as those at issue in the main proceedings in fact meet needs in the general interest and then, if necessary, it must be determined whether such needs have an industrial or commercial character.
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32FURTHERMORE , OPPORTUNITIES FOR PROMOTION DO EXIST .
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48. Il résulte de cette même jurisprudence que les exonérations visées à l’article 132 de la directive 2006/112 constituent des notions autonomes du droit de l’Union ayant pour objet d’éviter des divergences dans l’application du régime de la TVA d’un État membre à l’autre (voir, en ce sens, arrêts précités Horizon College, point 15 et jurisprudence citée, ainsi que Eulitz, point 25).
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25. It is settled case‑law that the exemptions referred to in Article 13 of the Sixth Directive constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (see, in particular, see Case C-349/96 CPP [1999] ECR I‑973, paragraph 15; Case C‑434/05 Horizon College [2007] ECR I‑4793, paragraph 15; and C‑242/08 Swiss Re Germany [2009] ECR I-0000, paragraph 33).
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39. En particulier, s’agissant, en premier lieu, de la difficulté relative à l’identification des bénéficiaires des aides en cause, la Cour a déjà jugé que le fait que l’État membre en cause éprouve la nécessité de vérifier la situation individuelle de chaque entreprise concernée, en vue d’effectuer un examen préalable afin d’identifier les bénéficiaires des avantages visés par la décision de la Commission, n’est pas de nature à justifier la non-exécution de cette décision (arrêt du 5 mai 2011, Commission/Italie, C‑305/09, non encore publié au Recueil, point 37 et jurisprudence citée).
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108
In that respect, the Court has had occasion to rule that the exception in the first paragraph of Article 51 TFEU does not extend to certain activities that are ancillary or preparatory to the exercise of official authority (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraph 22; of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 38; of 30 March 2006, Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU:C:2006:208, paragraph 47; of 29 November 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraph 38; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, judgment of 21 June 1974, Reyners, 2/74, EU:C:1974:68, paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraphs 21 and 22; of 29 November 2007, Commission v Austria, C‑393/05, EU:C:2007:722, paragraphs 36 and 42; of 29 Novembre 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraphs 38 and 44; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraphs 36 and 41), powers of enforcement (see, to that effect, inter alia, judgment of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 37) or powers of coercion (see, to that effect, judgment of 30 September 2003, Anker and Others, C‑47/02, EU:C:2003:516, paragraph 61, and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 44).
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38. Thus, according to settled case-law, derogation under those articles must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority (see Servizi Ausiliari Dottori Commercialisti , cited above, paragraph 46 and the case-law cited), which excludes from being regarded as connected with the exercise of official authority, within the meaning of that derogation, functions that are merely auxiliary and preparatory vis-à-vis an entity which effectively exercises official authority by taking the final decision ( Thijssen , cited above, paragraph 22).
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47. As regards the principle of equivalence, it does not appear from the file, nor has it been argued before the Court, that the limitation period provided for in Article 19(1) of the DPR No 633/72 does not comply with that principle.
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49
Relying, in particular, on the case-law arising from the judgments of 16 November 2000, Weig v Commission (C‑280/98 P, EU:C:2000:627, paragraphs 52 to 68), and of 16 November 2000, Sarrió v Commission (C‑291/98 P, EU:C:2000:631, paragraphs 91 to 100), the appellant submits that there are numerous precedents in which the Court of Justice considered that it had to set aside the judgment of the General Court in so far as it had used a different calculation method, when reviewing fines, from that used by the Commission or by the General Court itself with regard to other undertakings implicated in the infringement at issue. Although it is true that the Court of Justice has already held, in particular in paragraph 181 of its judgment of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062), that the Commission is not required to indicate the figures relating to the method of calculating the fines, it nevertheless pointed out that it is, at the very least, ‘preferable’ that the mechanism used to set the amount of the fine be given.
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93 If the Court of First Instance had applied the Commission's method of calculation, taking into account the corrections made in respect of Prat Carton's involvement in the infringement, the amount of the fine would have been ECU 250 000 less.
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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.
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87. As for the complaint made by the Italian Republic against the Commission, criticising the fact that the Commission did not bring the present proceedings until years after the waste crisis had arisen and at the very time that Italy had adopted the measures enabling the crisis to be brought to an end, it should be borne in mind that the Court has consistently held that the rules laid down in Article 258 TFEU are to be applied without the Commission being required to comply with fixed time-limits (see, inter alia, Case C‑96/89 Commission v Netherlands [1991] ECR I‑2461, paragraph 15, and Case C‑523/04 Commission v Netherlands [2007] ECR I‑3267, paragraph 38). The Commission is thus entitled to decide, in its discretion, on what date it may be appropriate to bring an action and it is not for the Court to review the exercise of that discretion (Case C‑422/92 Commission v Germany [1995] ECR I‑1097, paragraph 18).
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38 As to the second argument, it must be pointed out that, according to the well-established case-law of the Court (see, in particular, the judgment of 21 September 1989 in Case 68/88 Commission v Greece [1989] ECR 2965), there is an inseparable link between the obligation to establish the Communities' own resources, the obligation to credit them to the Commission' s account within the prescribed time-limit and the obligation to pay default interest; in addition, default interest is payable regardless of the reason for the delay in making the entry in the Commission' s account. It follows that it is unnecessary to distinguish between a situation in which a Member State has established the Communities' own resources without paying them and one in which it has wrongfully omitted to establish them, even in the absence of a mandatory time-limit.
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31 That interpretation was confirmed in Ten Oever, cited above (paragraphs 10 and 11). A pension scheme set up by negotiation between both sides of the industry concerned and funded wholly by the employees and employers in that industry, to the exclusion of any financial contribution from the public purse, falls within the scope of Article 119, even where the public authorities, at the request of the employers' and trade union organizations concerned, declare the scheme compulsory for the whole of the industry concerned.
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99. However, those conditions may not be less favourable than those relating to similar domestic claims and must not be such as in practice to make it impossible or excessively difficult to obtain reparation ( Francovich and Others , paragraph 43).
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41 Those conditions are sufficient to give rise to a right on the part of individuals to obtain reparation, a right founded directly on Community law.
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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.
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59 The Court has consistently held in this regard that it is incumbent on the national courts to safeguard the rights of individuals when faced with any disregard by national authorities of the prohibition on the implementation of aid, which is set out in the final sentence of Article 93(3) of the Treaty and is directly effective. Such disregard, if relied on by individuals and confirmed by the national courts, must lead those courts to draw from it all the consequences in accordance with their national law, without their decisions, however, implying an assessment of the compatibility of the aid with the common market, which is a matter within the exclusive competence of the Commission, subject to review by the Court (see CELBI, cited above, paragraph 23, Case C-354/90 Fédération Nationale du Commerce Extérieur des Produits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon [1991] ECR I-5505, paragraph 14, and Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraphs 40 and 42).
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14 In this respect it should be noted, as did the Advocate General in point 24 of his Opinion, that the principal and exclusive role conferred on the Commission by Articles 92 and 93 of the Treaty, which is to hold aid to be incompatible with the common market where this is appropriate, is fundamentally different from the role of national courts in safeguarding rights which individuals enjoy as a result of the direct effect of the prohibition laid down in the last sentence of Article 93(3) of the Treaty. Whilst the Commission must examine the compatibility of the proposed aid with the common market, even where the Member State has acted in breach of the prohibition on giving effect to aid, national courts do no more than preserve, until the final decision of the Commission, the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by the last sentence of Article 93(3) of the Treaty. When those courts make a ruling in such a matter, they do not thereby decide on the compatibility of the aid with the common market, the final determination on that matter being the exclusive responsibility of the Commission, subject to the supervision of the Court of Justice.
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65. It is important, however, that those provisions should not go beyond what is necessary in order to attain that objective (Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 37).
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