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83
Although the provisions of Directive 94/19 do not, therefore, prevent Member States from extending to shares in recognised cooperatives operating in the financial sector the deposit-guarantee scheme provided for by their national legislation in accordance with those provisions, such an extension must not undermine the practical effectiveness of the deposit-guarantee scheme that that directive requires them to establish (see, to that effect, judgment of 23 November 2006, Lidl Italia, C‑315/05, EU:C:2006:736, paragraph 48) or infringe the provisions of the FEU Treaty, in particular Articles 107 and 108 TFEU.
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48. The Court has held that, if a field is not governed by a directive by reason of the incomplete harmonisation for which it provides, Member States remain, in principle, responsible for the provision of rules in that regard, provided, however, that those rules are not liable seriously to compromise achievement of the result prescribed by the directive in question ( Granarolo , paragraph 45).
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20. D’autre part, il convient de rappeler que la nécessité de parvenir à une interprétation du droit de l’Union qui soit utile pour le juge national exige que celui-ci définisse le cadre factuel et réglementaire dans lequel s’insèrent les questions qu’il pose ou que, à tout le moins, il explique les hypothèses factuelles sur lesquelles ces questions sont fondées. Ces exigences valent tout particulièrement dans le domaine de la concurrence, qui est caractérisé par des situations de fait et de droit complexes (voir, notamment, arrêts Attanasio Group, précité, point 32, ainsi que du 10 mai 2012, Duomo Gpa e.a., C‑357/10 à C‑359/10, point 22).
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54. In that regard, the decision making the reference must set out the precise reasons why the national court was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. Against that background, it is essential that the national court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (order in Case C‑167/94 Grau Gomis and Others [1995] ECR I‑1023, paragraph 9; Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 46; Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others [2007] ECR I‑1891, paragraph 34; and Case C‑295/05 Asemfo [2007] ECR I‑2999, paragraph 33).
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34. Concerning the information that must be provided to the Court in the context of a reference for a preliminary ruling, it should be noted that that information does not serve only to enable the Court to provide answers which will be of use to the national court; it must also enable the Governments of the Member States, and other interested parties, to submit observations in accordance with Article 23 of the Statute of the Court of Justice. For those purposes, according to settled case-law, it is firstly necessary that the national court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Secondly, the referring court must set out the precise reasons why it was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. In consequence, it is essential that the referring court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (see to that effect, inter alia, Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzo and Others [1993] ECR I‑393, paragraph 6; Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraphs 45 to 47; and Case C‑506/04 Wilson [2006] ECR I‑0000, paragraphs 38 and 39).
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53. Toutefois, afin de fournir une réponse utile qui permette à la juridiction de renvoi de trancher les litiges dont elle est saisie, il y a lieu d’examiner le classement des marchandises en cause dans les affaires au principal (arrêt du 18 juillet 2007, FTS International, C‑310/06, Rec. p. I‑6749, point 26).
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17. It is settled case‑law that the meaning and scope of terms for which Community law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part. Moreover, when those terms appear in a provision which constitutes a derogation from a principle or, more specifically, from Community rules for the protection of consumers, they must be read so that that provision can be interpreted strictly (see, to that effect, Case C‑336/03 easyCar [2005] ECR I‑1947, paragraph 21 and the case‑law cited). Furthermore, the preamble to a Community measure may explain the latter’s content (see, to that effect, inter alia, Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 76).
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21. It is settled case‑law that the meaning and scope of terms for which Community law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (Case C-128/94 Hönig [1995] ECR I-3389, paragraph 9, and Case C-164/98 P DIR International Film and Others v Commission [2000] ECR I-447, paragraph 26). When those terms appear, as in the main proceedings, in a provision which constitutes a derogation from a principle or, more specifically, from Community rules for the protection of consumers, they must, in addition, be interpreted strictly (Case C‑83/99 Commission v Spain [2001] ECR I-445, paragraph 19, and Case C‑481/99 Heininger [2001] ECR I-9945, paragraph 31).
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67. As it is, it must be noted in that regard that the legislation at issue is capable, in various ways, of hindering — at least indirectly and potentially — imports of electricity, especially green electricity, from other Member States.
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28. The Court has also repeatedly ruled that that requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance (Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 257; Commission v Council , paragraph 46; Germany v Commission , paragraph 34; France v Parliament and Council , paragraph 13; and Spain v Council , paragraph 13).
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257 However, it does not appear that annulment limited to the section of the operative part of the contested decision which relates to the conditions and obligations set out in point 63 thereof is possible without the substance of the decision being altered.
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34
It is also settled case-law that the terms used to specify those exemptions 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, the judgment of 28 July 2011, Nordea Pankki Suomi, C‑350/10, EU:C:2011:532, paragraph 23, and 22 October 2015, Hedqvist, C‑264/14, EU:C:2015:718, paragraph 34 and the case-law cited).
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12 As regards the first part of the question, as thus reworded, the Court has consistently held that, under the principle of cooperation laid down in Article 5 of the Treaty, it is for the Member States to ensure the legal protection which individuals derive from the direct effect of Community law. In the absence of Community rules governing a matter, 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 the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, in particular, the judgments in Case 33/76 Rewe v Landwirtschaftskammer fuer das Saarland [1976] ECR 1989, paragraph 5, Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043, paragraphs 12 to 16, Case 68/79 Hans Just v Danish Ministry for Fiscal Affairs [1980] ECR 501, paragraph 25, Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 14, Joined Cases 331/85, 376/85 and 378/85 Bianco and Girard v Directeur Général des Douanes des Droits Indirects [1988] ECR 1099, paragraph 12, Case 104/86 Commission v Italy [1988] ECR 1799, paragraph 7, Joined Cases 123/87 and 330/87 Jeunehomme and EGI v Belgian State [1988] ECR 4517, paragraph 17, Case C-96/91 Commission v Spain [1992] ECR I-3789, paragraph 12, and Joined Cases C-6/90 and C-9/90 Francovich and Others v Italian Republic [1991] ECR I-5357, paragraph 43).
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14 ON THE OTHER HAND , ANY REQUIREMENT OF PROOF WHICH HAS THE EFFECT OF MAKING IT VIRTUALLY IMPOSSIBLE OR EXCESSIVELY DIFFICULT TO SECURE THE REPAYMENT OF CHARGES LEVIED CONTRARY TO COMMUNITY LAW WOULD BE INCOMPATIBLE WITH COMMUNITY LAW . THAT IS SO PARTICULARLY IN THE CASE OF PRESUMPTIONS OR RULES OF EVIDENCE INTENDED TO PLACE UPON THE TAXPAYER THE BURDEN OF ESTABLISHING THAT THE CHARGES UNDULY PAID HAVE NOT BEEN PASSED ON TO OTHER PERSONS OR OF SPECIAL LIMITATIONS CONCERNING THE FORM OF THE EVIDENCE TO BE ADDUCED , SUCH AS THE EXCLUSION OF ANY KIND OF EVIDENCE OTHER THAN DOCUMENTARY EVIDENCE . ONCE IT IS ESTABLISHED THAT THE LEVYING OF THE CHARGE IS INCOMPATIBLE WITH COMMUNITY LAW , THE COURT MUST BE FREE TO DECIDE WHETHER OR NOT THE BURDEN OF THE CHARGE HAS BEEN PASSED ON , WHOLLY OR IN PART , TO OTHER PERSONS .
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34. As appears from recital 1 of the preamble to Regulation No 1049/2001, that regulation reflects the intention expressed in the second paragraph of Article 1 of the EU Treaty, which was inserted by the Treaty of Amsterdam, to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As recital 2 of the preamble to Regulation No 1049/2001 notes, the right of public access to documents of the institutions is related to the democratic nature of those institutions.
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53. According to the Court’s settled case-law, if the judicial review guaranteed by Article 47 of the Charter is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information (Joined Cases C‑372/09 and C-373/09 Peñarroja Fa [2011] ECR I‑1785, paragraph 63, and Case C-430/10 Gaydarov [2011] ECR I-0000, paragraph 41), so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court with jurisdiction, and in order to put the latter fully in a position in which it may carry out the review of the lawfulness of the national decision in question (see, to this effect, Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 15, and Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 337).
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337. Observance of that obligation to communicate the grounds is necessary both to enable the persons to whom restrictive measures are addressed to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the Community judicature (see, to that effect, Heylens and Others , paragraph 15), and to put the latter fully in a position in which it may carry out the review of the lawfulness of the Community measure in question which is its duty under the EC Treaty.
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29. Those provisions indicate that the purpose of Directive 89/104 is generally to strike a balance between the interest of the proprietor of a trade mark to safeguard its essential function, on the one hand, and the interests of other economic operators in having signs capable of denoting their products and services (see, in relation to the requirement of availability of colours in the case of registration as a trade mark of a colour per se, Case C-104/01 Libertel [2003] ECR I‑3793).
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47. In any event, a restriction such as that identified in paragraph 44 of this judgment cannot be justified by the need to preserve the coherence of a system such as the VTL system at issue in the main proceedings. For an argument based on such a justification to succeed, the Court requires that a direct link be established between the advantage concerned and the offsetting of that advantage by a particular tax levy, with the direct nature of that link falling to be examined in the light of the objective pursued by the rules in question (see, to that effect, Case C‑182/08 Glaxo Wellcome [2009] ECR I‑0000, paragraph 78 and case‑law cited). In the main proceedings, the fact that, for a company with its seat in Hungary, all of the staff belonging to a place of business situated in another Member State is taken into account does not seem to be offset by any opportunity, in practice, for that company of benefiting from the means provided for in Hungarian legislation to reduce gross liability to VTL with regard to training costs incurred in such a place of business.
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78. For an argument based on such a justification to succeed, the Court requires, however, that a direct link be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy, with the direct nature of that link falling to be examined in the light of the objective pursued by the rules in question (see Papillon , paragraph 44 and the case-law cited).
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19 AS THE EVALUATION OF A COMPLEX ECONOMIC SITUATION IS INVOLVED , THE COMMISSION AND THE MANAGEMENT COMMITTEE ENJOY , IN THIS RESPECT , A WIDE MEASURE OF DISCRETION .
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72. In that regard, the persons to whom such devices are made available are rightly presumed to benefit fully from the making available of those devices, that is to say, that they are deemed to take full advantage of the functions associated therewith, including copying. It follows that the fact that those devices are capable of producing copies is sufficient in itself to justify the application of the levy to the persons concerned (see, to that effect, judgment in Padawan , C‑467/08, EU:C:2010:620, paragraphs 55 and 56).
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55. Those natural persons are rightly presumed to benefit fully from the making available of that equipment, that is to say that they are deemed to take full advantage of the functions associated with that equipment, including copying.
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69. In the assessment carried out by the Court, the criteria which must be taken into account in order to ensure that penalty payments have coercive force and that European Union law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State concerned to pay. In applying those criteria, the Court is required to have regard, in particular, to the effects on public and private interests of failure to comply and to the urgency with which the Member State concerned must be induced to fulfil its obligations (see, Commission v Spain , paragraph 119 and the case-law cited).
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46. On this point, it should be noted that under Article 13(2)(f) of Regulation No 1408/71 a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with the provisions of Article 13(2)(a) to (d) or Articles 14 to 17 of that regulation, is subject to the legislation of the Member State in whose territory he resides. According to settled case-law, Article 13(2)(f) applies inter alia to persons who have definitively ceased all activity (Case C‑275/96 Kuusijärvi [1998] ECR I‑3419, paragraphs 39 and 40, and Case C‑372/02 Adanez-Vega [2004] ECR I‑10761, paragraph 24).
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40 On the contrary, that provision is couched in general terms so as to cover any situation in which the legislation of a Member State ceases to be applicable to a person, for whatever reason, and not only because the person concerned has ceased his occupational activity, be it definitively or temporarily, in a given Member State.
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86 Where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58). In doing this, the Commission must establish in particular all the facts enabling the conclusion to be drawn that an undertaking participated in such an infringement and that it was responsible for the various aspects of it.
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48
It is appropriate to recall that the principle of legal certainty does not preclude the tax authorities from carrying out, within the limitation period, an assessment for VAT relating to the deducted tax or to services already provided and which should have been subject to VAT (see, to that effect, judgments of 6 February 2014, Fatorie, C‑424/12, EU:C:2014:50, paragraphs 47 and 48, and of 9 July 2015, Cabinet Medical Veterinar Dr. Tomoiagă Andrei, C‑144/14, EU:C:2015:452, paragraph 42).
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47. In this connection, in its written observations the Romanian Government refers to Article 105(3) of Government Order No 92/2003 on the Tax Procedure Code which allows, in exceptional circumstances, before the expiry of the limitation period, a new investigation to be carried out concerning a particular period where additional information unknown to the tax investigators at the date of the investigation or errors in calculation having an effect on the results of that investigation come to light.
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38
However, it also follows from the Court’s case-law that placing on the market is a stage subsequent to import. Just as a product lawfully manufactured within the EU may not be placed on the market on that ground alone, the lawful import of a product does not mean that it will automatically be allowed onto the market. A product coming from a third country which is in free circulation is thus assimilated to products originating in the Member States as regards the elimination of customs duties and quantitative restrictions between Member States. Where, however, there is no EU legislation harmonising the conditions of marketing of the products concerned, the Member State in which they are put into free circulation may prevent their being placed on the market if they do not satisfy the conditions laid down for that purpose under national law in compliance with EU law (judgments of 30 May 2002, Expo Casa Manta, C‑296/00, EU:C:2002:316, paragraphs 31 and 32, and of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 95).
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54. It is relevant to add that, for the purposes of interpreting Regulation No 881/2002, account must also be taken of the wording and purpose of Resolution 1390 (2002) which, according to Recital 4 in the preamble to Regulation No 881/2002, that regulation is designed to implement (see, to that effect, Case C‑84/95 Bosphorus [1996] ECR I‑3953, paragraphs 13 and 14, and Case C‑371/03 Aulinger [2006] ECR I‑2207, paragraph 30).
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30. The 10th recital in the preamble to Regulation No 1432/92 states that the purpose of the regulation is, inter alia, to ensure a uniform implementation throughout the Community of certain of the measures in Resolution 757 (1992). Consequently, account must be taken of the wording and the purpose of that resolution (see, to that effect, Bosphorus, paragraphs 13 and 14) in order to interpret that regulation. Regulation No 1432/92 cannot therefore be interpreted in a manner that is contrary to Resolution 757 (1992).
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7. À cet égard, il importe de rappeler que, dans le système établi par l’article 226 CE, la Commission dispose d’un pouvoir discrétionnaire pour intenter un tel recours et qu’il n’appartient pas à la Cour d’apprécier l’opportunité de l’exercice de celui-ci (arrêts du 6 juillet 2000, Commission/Belgique, C‑236/99, Rec. p. I–5657, point 28, et du 2 juin 2005, Commission/Luxembourg, C‑266/03, Rec. p. I–4805, point 35 et jurisprudence citée).
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22
It is, nevertheless, necessary to examine whether that difference in treatment may be justified under Article 6(2) of Directive 2000/78. In that regard, it must be recalled that, even if, formally, the referring court has limited its question to the interpretation of Articles 2(1), 2(2)(a) and 6(1) of that directive, that does not prevent the Court from providing the referring court with a ruling on the interpretation of all EU law which may be of assistance to the referring court in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of that question (judgments of 26 September 2013 in HK Danmark, C‑476/11, EU:C:2013:590, paragraph 56, and of 29 October 2015 in Nagy, C‑583/14, EU:C:2015:737, paragraph 20).
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56. Even though the referring court has limited its questions to the interpretation of Article 6(2) of Directive 2000/78, that does not prevent the Court from providing the national court with all the elements of interpretation of European Union law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically made reference to them in its question (see, to that effect, Case C‑503/09 Stewart [2011] ECR I‑6497, paragraph 79, and the case-law cited).
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39. The concept must, however, be construed in a uniform manner at Community level, in order to ensure consistent application in the Member States.
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54. It is clear from Article 23 EC that, as regards free circulation of goods within the Community, products entitled to " free circulation" are definitively and wholly assimilated to products originating in Member States. The result of this assimilation is that the provisions of Article 28 EC concerning the elimination of quantitative restrictions and all measures having equivalent effect are applicable without distinction to products originating in the Community and to those which were put into free circulation in any one of the Member States, irrespective of the actual origin of these products (see Donckerwolcke and Schou , cited above, paragraphs 17 and 18).
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17 IT APPEARS FROM ARTICLE 9 THAT , AS REGARDS FREE CIRCULATION OF GOODS WITHIN THE COMMUNITY , PRODUCTS ENTITLED TO ' FREE CIRCULATION ' ARE DEFINITIVELY AND WHOLLY ASSIMILATED TO PRODUCTS ORIGINATING IN MEMBER STATES .
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24
Such an interpretation, as the Court has already held, is consistent with the aim of the widest possible opening-up of public contracts to competition pursued by the relevant directives to the benefit not only of economic operators but also of contracting authorities. In addition, that interpretation also facilitates the involvement of small- and medium-sized undertakings in the contracts procurement market, an aim also pursued by Directive 2004/18, as stated in recital 32 thereof (judgment in Swm Costruzioni 2 and Mannocchi Luigino, C‑94/12, EU:C:2013:646, paragraph 34 and the case-law cited).
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75. The Member States enjoy a certain discretion in this regard since they have the choice of relying on one or more of the measures listed in clause 5(1)(a) to (c) of the Framework Agreement, or on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers (see judgment in Fiamingo and Others , EU:C:2014:2044, paragraph 59 and the case-law cited.
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59. Nonetheless, the Member States enjoy a certain discretion in the implementation of Clause 5(1) of the Framework Agreement since they have the choice of relying on one or more of the measures listed in that clause, or even on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers (see Impact , EU:C:2008:223, paragraph 71; Angelidaki and Others , EU:C:2009:250, paragraphs 81 and 93; and Deutsche Lufthansa , EU:C:2011:129, paragraph 35).
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30
Article 27(1) of Regulation No 604/2013 provides that the asylum seeker is to have the right to an effective remedy in the form of an appeal or a review, on points of fact and law, against a transfer decision before a court or tribunal.
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59. Whilst, for the Federal Republic of Germany, recognition of the right to exemption from corporation tax for non-resident charitable foundations would entail a reduction in its corporation tax receipts, it has been consistently held in the case-law that reduction in tax revenue cannot be regarded as an overriding reason in the public interest which may be relied on to justify a measure which is, in principle, contrary to a fundamental freedom (see, to that effect, Verkooijen , paragraph 59; Case C-136/00 Danner [2002] ECR I-8147, paragraph 56; X and Y , paragraph 50; and Manninen , paragraph 49).
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59 As regards the arguments concerning the loss of revenue for the Kingdom of the Netherlands that would result from exemption of dividends received by its residents who are shareholders of companies with their seat in other Member States, it need merely be pointed out that reduction in such tax revenue cannot be regarded as an overriding reason in the public interest which may be relied on to justify a measure which is in principle contrary to a fundamental freedom (see, to that effect, in relation to Article 52 of the Treaty, the ICI judgment cited above, paragraph 28).
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31. Il convient de relever que les cas dans lesquels il est permis de limiter l’obligation de paiement des institutions de garantie, tels que prévus par l’article 4 de la directive 80/987, telle que modifiée, doivent faire l’objet d’une interprétation stricte (voir, en ce sens, arrêt van Ardennen, précité, point 34).
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65. A commitment of that type arises from Article 11 of the 1957 Agreement, as amended by the Exchange of Notes of 29 January and 13 March 1992 and by Article 6 of the 1978 Protocol. The Kingdom of the Netherlands has maintained that commitment despite the renegotiation of the 1957 Agreement which led to the Exchange of Notes of October 1992. By proceeding in that way, the Kingdom of the Netherlands has thus infringed the exclusive external competence of the Community which results from Article 1(3) of Regulation No 2409/92 (see, to that effect, Commission v Denmark , paragraphs 97 to 100; Commission v Sweden , paragraphs 93 to 96; Commission v Finland , paragraphs 98 to 101; Commission v Belgium , paragraphs 110 to 113; Commission v Luxembourg , paragraphs 103 to 106; Commission v Austria , paragraphs 112 to 115, and Commission v Germany , paragraphs 123 to 126).
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101 The documents before the Court show that a commitment of that type was entered into by the Republic of Finland by virtue of the amendments made in 1995 to Article 6 of the 1980 Protocol, which was rewritten. By proceeding in that way, that Member State thus infringed the Community's exclusive external competence resulting from Article 1(3) of Regulation No 2409/92.
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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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32
Thus, it is essential that the contractor’s activity be principally devoted to the controlling authority or authorities; the nature of any other activity may only be marginal. In order to determine whether that is the case, the court having jurisdiction must take into account all the facts of the case, both qualitative and quantitative. In that regard, the relevant turnover is the turnover that that contractor achieves pursuant to the award decisions taken by that or those controlling authorities (see, to that effect, judgments of 11 May 2006, Carbotermo and Consorzio Alisei, C‑340/04, EU:C:2006:308, paragraphs 63 and 65, and of 17 July 2008, Commission v Italy, C‑371/05, not published, EU:C:2008:410, paragraph 31).
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65. As to the issue of whether it is necessary to take into account in that context only the turnover achieved with the supervisory authority or that achieved within its territory, it should be held that the decisive turnover is that which the undertaking in question achieves pursuant to decisions to award contracts taken by the supervisory authority, including the turnover achieved with users in the implementation of such decisions.
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26
In that regard, it should be clarified, in the first place, that the concept of ‘technical specification’ presupposes that the national measure necessarily refers to the product or its packaging as such and therefore lays down one of the characteristics required of a product. In contrast, where a national measure lays down conditions governing the establishment of undertakings, such as provisions making the exercise of a business activity subject to prior authorisation, those conditions do not constitute technical specifications (judgment of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 19 and the case-law cited).
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105. The Court has pointed out in particular that, in order to determine whether the conditions relating to urgency and the risk of serious and irreparable damage have been satisfied, the national court dealing with the application for interim relief must examine the circumstances particular to the case before it and consider whether immediate enforcement of the measure which is the subject of the application for interim relief would be likely to result in irreversible damage to the applicant which could not be made good if the Community act were to be declared invalid ( Zuckerfabrik , paragraph 29; Atlanta Fruchthandelsgesellschaft and Others (I), cited above, paragraph 41).
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41 As to urgency, the damage relied on by the applicant must be such as to materialize before the Court of Justice has been able to rule on the validity of the contested Community act. As to the nature of the damage, purely financial damage cannot, as the Court has held on numerous occasions, be regarded in principle as irreparable. However, it is for the national court hearing the application for interim relief to examine the circumstances particular to the case before it. It must in this connection consider whether immediate enforcement of the measure with respect to which the application for interim relief is made would be likely to result in irreversible damage to the applicant which could not be made good if the Community act were to be declared invalid (Zuckerfabrik, paragraph 29).
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3 Article 8(1) of the directive provides that Member States are immediately to communicate to the Commission any draft technical regulation, except where such technical regulation merely transposes the full text of an international or European standard, and also to indicate the grounds which make the enactment of such a technical regulation necessary. The Commission is immediately to notify the other Member States of the draft.
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20. If the worker adduced evidence to show that the criteria for establishing the existence of a difference in pay between a woman and a man and for identifying comparable work are satisfied, a prima facie case of discrimination would exist. It would then be for the employer to prove that there was no breach of the principle of equal pay by establishing by any legal means, inter alia, that the activities actually performed by the two employees were not in fact comparable or by justifying the difference in pay by objective factors unrelated to any discrimination based on sex (see, to that effect, Brunnhofer , paragraphs 59 to 62).
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62 The employer could also justify the difference in pay by objective factors unrelated to any discrimination based on sex, by proving that there was a difference, unrelated to sex, to explain the payment of a higher monthly supplement to the chosen comparator.
Objective justifications for unequal pay
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29. So far as concerns the impact on that deduction of any events occurring after the deduction is made, it is clear from the case-law that the use to which the goods or services are put, or are intended to be put, determines the extent of the initial deduction to which the taxable person is entitled and the extent of any adjustments in the course of the following periods, which must be made under the conditions laid down in Articles 185 to 187 of the Directive (see, to that effect, Case C-63/04 Centralan Property [2005] ECR I-11087, paragraph 54 and the case-law cited).
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29. In that regard, it must be held, on the basis of the information provided by the referring court, that the tax data transferred to the CNAS by the ANAF are personal data within the meaning of Article 2(a) of the directive, since they are ‘information relating to an identified or identifiable natural person’ (judgment in Satakunnan Markkinapörssi and Satamedia , C‑73/07, EU:C:2008:727, paragraph 35). Both the transfer of the data by the ANAF, the body responsible for the management of the database in which they are held, and their subsequent processing by the CNAS therefore constitute ‘processing of personal data’ within the meaning of Article 2(b) of the directive (see, to that effect, inter alia, judgments in Österreichischer Rundfunk and Others , C‑465/00, C‑138/01 and C‑139/01, EU:C:2003:294, paragraph 64, and Huber , C‑524/06, EU:C:2008:724, paragraph 43).
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64. It should be noted, to begin with, that the data at issue in the main proceedings, which relate both to the monies paid by certain bodies and the recipients, constitute personal data within the meaning of Article 2(a) of Directive 95/46, being "information relating to an identified or identifiable natural person" . Their recording and use by the body concerned, and their transmission to the Rechnungshof and inclusion by the latter in a report intended to be communicated to various political institutions and widely diffused, constitute processing of personal data within the meaning of Article 2(b) of the directive.
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31 Thus, the Court has held that the prohibition of discrimination based on nationality applies not only to the actions of public authorities but also to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services (see Case 36/74 Walrave v Union Cycliste Internationale [1974] ECR 1405, paragraph 17).
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41. Nonetheless, the point must be made that the recognition of a party’s right to plead the invalidity of an act of the Union presupposes that that party did not have the right to bring, under Article 263 TFEU, a direct action for the annulment of that act (see, to that effect, TWD Textilwerke Deggendorf , paragraph 23; E and F , paragraph 46, and Case C‑494/09 Bolton Alimentari [2011] ECR I‑647, paragraph 22). Were it to be accepted that a party who beyond doubt had standing to institute proceedings under the fourth paragraph of Article 263 TFEU for the annulment of an act of the Union could, after the expiry of the time-limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU, challenge before the national courts the validity of that act, that would amount to enabling the person concerned to circumvent the fact that that act is final as against him once the time-limit for his bringing an action has expired (see, to that effect, TWD Textilwerke Deggendorf , paragraphs 18 and 24; E and F , paragraphs 46 and 48, and Bolton Alimentari , paragraphs 22 and 23).
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23. Nevertheless, it follows from that case-law that the admissibility of such a direct action must be beyond any doubt ( E and F , paragraph 48 and case-law cited). In the present case, however, the information set out in the reference for a preliminary ruling and that provided by the Italian Government does not allow the Court to conclude that the admissibility of such a direct action would have been beyond any doubt.
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29 However, it cannot be inferred from those provisions that all maritime cabotage services with, or between, islands within a Member State must, by reason of the fact that islands are involved, be regarded as public services.
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31
The Court has consistently held that indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, the judgments of 2 October 1997, Kording, C‑100/95, EU:C:1997:453, paragraph 16, and of 20 June 2013, Riežniece, C‑7/12, EU:C:2013:410, paragraph 39).
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16 The Court has consistently held that indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, to that effect, Case C-444/93 Megner and Scheffel v Innungskrankenkasse Rheinhessen-Pfalz [1995] ECR I-4741, paragraph 24, and Case C-343/92 De Weerd (née Roks) and Others [1994] ECR I-571, paragraph 33).
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36. Therefore, such letting does not fall within the scope of the common flat-rate scheme for farmers. The turnover from that activity cannot, therefore, be taxed under the special scheme provided for in Article 25 of the Sixth Directive, even if the farmer concerned continues to rear stock on the rest of his land, and, consequently, it falls within the scope of the normal VAT scheme or, where appropriate, the simplified scheme. Moreover, pursuant to Article 25(10) of the Sixth Directive, the farmer concerned may opt for the normal scheme or, where appropriate, the simplified scheme in respect of all of his activities.
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50. It should be stated at the outset that the CPVO’s task is characterised by the scientific and technical complexity of the conditions governing the examination of applications for Community plant variety rights and, accordingly, the CPVO must be accorded a broad discretion in carrying out its functions (see, to that effect, Schräder v CPVO , paragraph 77). Furthermore, given that broad discretion, the CPVO may, if it considers it necessary, take account of facts and evidence which are submitted or produced out of time (see, by analogy as regards OHIM, Case C-29/05 P OHIM v Kaul [2007] ECR I-2213, paragraph 42).
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77. In addition, it must be recalled that the General Court, which has jurisdiction only within the limits set by Article 73(2) of Regulation No 2100/94, was not required to carry out a complete review in order to determine whether or not the SUMCOL 01 variety lacked distinctness for the purposes of Article 7(1) of Regulation No 2100/94 but that it was entitled, in the light of the scientific and technical complexity of that condition, compliance with which must be verified by means of a technical examination which, as is clear from Article 55 of Regulation No 2100/94, is to be entrusted by the CPVO to one of the competent national offices, to limit itself to a review of manifest errors of assessment.
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20. Toutefois, s’agissant, en premier lieu, des frais de banque et des coûts analogues de transaction, comme l’a relevé à bon droit le Royaume de Suède lors de l’audience, la Commission n’a pas apporté d’éléments de nature à démontrer que de tels frais, si ceux-ci peuvent, le cas échéant, être directement liés à un montant versé à l’occasion d’une opération de transaction de titres (voir, en ce sens, arrêt du 19 janvier 2006, Bouanich, C‑265/04, Rec. p. I‑923, point 40), sont également et nécessairement directement liés à la perception, en elle-même, d’un revenu sous forme de dividendes ou d’intérêts.
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60 According to settled case-law (see in particular Case C-124/95 The Queen v HM Treasury and Bank of England ex parte Centro-Com [1997] ECR I-81, paragraphs 56 and 57), the purpose of that provision is to make clear, in accordance with the principles of international law, that application of the Treaty does not affect the commitment of the Member State concerned to respect the rights of third countries under an earlier agreement and to comply with its corresponding obligations. Consequently, in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations whose performance may still be required by third countries which are parties to it.
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57 Consequently, in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations whose performance may still be required by non-member States which are parties to it (see Case C-324/93 Evans Medical and Macfarlan Smith, cited above, paragraph 28).
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123. It follows that the institutions must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested measures of the act and on which the exercise of their discretion depended.
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19. The referring court does, however, see certain points of convergence between the main proceedings and the case which gave rise to the judgment in Gielen (C‑440/08, EU:C:2010:148) since, in the latter case, the Court held that the fact that a non-resident taxpayer was able to opt for the taxation regime of resident taxpayers rather than being subject to that applicable to non-resident taxpayers cannot remove the discriminatory nature of a specific tax advantage. None the less, that court notes that, unlike the facts of the case which gave rise to the judgment in Gielen (C‑440/08, EU:C:2010:148), the main proceedings concern a tax advantage which is not specific and that, in Sweden, a non-resident taxpayer may choose between ‘two entirely different regimes’ for the taxation of his income.
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51. It has, however, to be pointed out in that regard that such a choice is not, in the present case, capable of remedying the discriminatory effects of the first of those two tax regimes.
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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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48
The Court has already ruled that it does not follow from any provision of European Union law that the origin of the shareholders, be they natural or legal persons, of companies resident in the European Union affects that right, since the status of being a European Union company is based, under Article 54 TFEU, on the location of the corporate seat and the legal order where the company is incorporated, not on the nationality of its shareholders (judgment of 1 April 2014, Felixstowe Dock and Railway Company and Others, C‑80/12, EU:C:2014:200, paragraph 40).
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40. However, it does not follow from any provision of European Union law that the origin of the shareholders, be they natural or legal persons, of companies resident in the European Union affects the right of those companies to rely on freedom of establishment. As the Advocate General has observed in point 60 of his Opinion, the status of being a European Union company is based, under Article 54 TFEU, on the location of the corporate seat and the legal order where the company is incorporated, not on the nationality of its shareholders.
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47. In this instance, although the relevant restrictions on investment operations apply without distinction to both residents and non-residents, it must none the less be held that they affect the position of a person acquiring a shareholding as such and are thus liable to deter investors from other Member States from making such investments and, consequently, affect access to the market (see, also, the judgment of today's date in Case C-463/00 Commission v Spain [2003] ECR I-4579, paragraph 61).
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28 In particular, reparation of that loss and damage cannot depend on a prior finding by the Court of an infringement of Community law attributable to the State (see Brasserie du Pêcheur, paragraphs 94 to 96), nor on the existence of intentional fault or negligence on the part of the organ of the State to which the infringement is attributable (see paragraphs 75 to 80 of the same judgment).
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95. In addition, to make the reparation of loss or damage conditional upon the requirement that there must have been a prior finding by the Court of an infringement of Community law attributable to a Member State would be contrary to the principle of the effectiveness of Community law, since it would preclude any right to reparation so long as the presumed infringement had not been the subject of an action brought by the Commission under Article 169 of the Treaty and of a finding of an infringement by the Court. Rights arising for individuals out of Community provisions having direct effect in the domestic legal systems of the Member States cannot depend on the Commission ' s assessment of the expediency of taking action against a Member State pursuant to Article 169 of the Treaty or on the delivery by the Court of any judgment finding an infringement (see, to this effect, Joined Cases 314/81, 315/81, 316/81 and 83/82 Waterkeyn and Others [1982] ECR 4337, paragraph 16).
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27 In this respect, it must be observed in the first place that restrictions on the broadcasting of advertisements, such as a prohibition on advertising particular products or on certain days, a limitation of the duration or frequency of advertisements or restrictions designed to enable listeners or viewers not to confuse advertising with other parts of the programme, may be justified by overriding reasons relating to the general interest. Such restrictions may be imposed in order to protect consumers against excessive advertising or, as an objective of cultural policy, in order to maintain a certain level of programme quality.
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30. In that regard, it should be borne in mind that the procedure for referring questions for a preliminary ruling under Article 234 EC establishes a relationship of close cooperation between the national courts and the Court of Justice, based on the assignment to each of different functions, and constitutes an instrument by means of which the Court provides the national courts with the criteria for the interpretation of European Union law which they require in order to dispose of disputes which they are called upon to resolve (Joined Cases C‑260/00 to C-263/00 Lohmann and Medi Bayreuth [2002] ECR I‑10045, paragraph 27, and Case C‑259/05 Omni Metal Service [2007] ECR I‑4945, paragraph 16).
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27 The procedure for references for a preliminary ruling under Article 234 EC entails close cooperation between the national courts and the Court of Justice based on the assignment to each of different functions (Case C-236/98 JämO [2000] ECR I-2189, paragraph 30) and constitutes an instrument by means of which the Court provides the national courts with such interpretation of Community law as is necessary for them to give judgment in the cases upon which they are called to adjudicate (Case C-403/98 Monte Arcosu [2001] ECR I-103, paragraph 21).
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58 It must be observed, at the outset, that neither the Regulation nor the Directive contains a general definition of disposal or recovery of waste, but merely refers to Annexes II A and II B to the Directive, in which various operations falling within the scope of those concepts are listed.
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43. That discretion relating to the protection of public health is particularly wide where it is shown that uncertainties continue to exist in the current state of scientific research as to certain substances, such as vitamins, which, as observed in paragraph 29 of this judgment, are not as a general rule harmful in themselves but may have special harmful effects if taken to excess as part of the general nutrition, the composition of which cannot be foreseen or monitored (see Sandoz , paragraph 17; Commission v Denmark , paragraph 43; and Commission v France , paragraph 50).
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43. That discretion relating to the protection of public health is particularly wide where it is shown that uncertainties continue to exist in the current state of scientific research as to certain substances, such as vitamins, which are not as a general rule harmful in themselves but may have special harmful effects solely if taken to excess as part of the general nutrition, the composition of which cannot be foreseen or monitored (see Sandoz , paragraph 17).
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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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37
Consequently, since Article 191(2) TFEU, which establishes the polluter-pays principle, is directed at action at EU level, that provision cannot be relied on as such by individuals in order to exclude the application of national legislation — such as that at issue in the main proceedings — in an area covered by environmental policy for which there is no EU legislation adopted on the basis of Article 192 TFEU that specifically covers the situation in question (see, to that effect, judgments of 9 March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 39, and of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraph 40 and the case-law cited).
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39. Since Article 174 EC, which establishes the ‘polluter pays’ principle, is directed at action at Community level, that provision cannot be relied on as such by individuals in order to exclude the application of national legislation – such as that at issue in the main proceedings – in an area covered by environmental policy for which there is no Community legislation adopted on the basis of Article 175 EC that specifically covers the situation in question.
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122. It is likewise necessary to reject the United Kingdom’s contention that enrichment by nitrogen is more effectively addressed through measures taken pursuant to Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1). A Member State cannot avoid complying with Directive 91/271 on the ground that it observes Directive 91/676, since the latter, being intended to reduce and prevent water pollution caused or induced by nitrogen from agricultural sources ( Standley and Others , paragraph 35), does not affect, inter alia, the enrichment of water by phosphorus, which Directive 91/271 seeks to remedy amongst other matters. The United Kingdom does not contest the findings of the ERM report that phosphorus inputs also lie behind the enrichment of the Wash by nutrients.
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25. It is true that this principle of interpreting national law in conformity with European Union law has certain limitations. Thus the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem (see Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 100, and Angelidaki and Others , paragraph 199).
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199. It is true that the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem (see Adeneler and Others , paragraph 110; Impact , paragraph 100; and order in Vassilakis and Others , paragraph 58).
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33 That submission must be rejected . Article 1 of the contested decision states that the interest subsidy is of 4.75 percentage points and that it relates to a loan of FF 40 million . The addressee of the decision is therefore able to determine without overmuch difficulty the amount which must be recovered under the decision .
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26. In the case of gifts, it follows from that case-law that the measures prohibited by Article 56(1) EC as being restrictions on the movement of capital include those whose effect is to reduce the value of a gift by a resident of a Member State other than that in which the property concerned is located and which taxes the gift of that property (see, by analogy, van Hilten-van der Heijden , paragraph 44; Jäger , paragraph 31; Eckelkamp and Others , paragraph 44; Arens-Sikken , paragraph 37; and Block , paragraph 24).
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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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La circonstance que, ainsi qu’il ressort des points 13 et 49 de l’arrêt attaqué, M. H. ait été, durant la période en question, également responsable des ventes au sein de H&R Wax Company Vertrieb est sans incidence à cet égard. En effet, il ne saurait être exclu qu’une même personne physique agisse simultanément dans l’intérêt de différentes sociétés impliquées dans une entente. Il incombe au Tribunal de déterminer dans chaque situation particulière, lors de son appréciation souveraine des faits et des éléments de preuve si tel est le cas (voir, en ce sens, arrêt du 9 octobre 2014, ICF/Commission, C‑467/13 P, non publié, EU:C:2014:2274, point 26).
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14 As regards the legal basis of the contested regulation, it should be noted that it is expressly stated to be Article 11 of Regulation No 170/83, which, referring inter alia to Article 4(1) of the same regulation, empowers the Council, acting by a qualified majority on a proposal from the Commission, to determine the distribution between Member States of the volume of catches available to the Community. Since Regulation No 170/83 is itself based on Article 43 of the Treaty, Article 11 thereof constitutes an appropriate and sufficient legal basis for the adoption of the contested regulation. As the Court held in its judgment in Case 46/86 Romkes v Officier van Justitie [1987] ECR 2681, paragraph 16, the Council cannot be required to draw up all the details of the regulations concerning the common agricultural policy according to the procedure laid down in Article 43 of the Treaty; on the contrary, it is sufficient for the purposes of that provision that the basic elements of the matter to be dealt with have been adopted in accordance with the procedure laid down by that provision; the provisions implementing the basic regulations may be adopted by the Council according to a different procedure, as envisaged by the said Article 11.
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16 IT SHOULD BE BORNE IN MIND IN THIS REGARD THAT, AS THE COURT HELD IN ITS JUDGMENT OF 17 DECEMBER 1970 IN CASE 25/70 EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL V KOESTER, BERODT & CO (( 1970 )) ECR 1161, THE COUNCIL CANNOT BE REQUIRED TO DRAW UP ALL THE DETAILS OF THE REGULATIONS CONCERNING THE COMMON AGRICULTURAL POLICY ACCORDING TO THE PROCEDURE LAID DOWN IN ARTICLE 43 OF THE TREATY; IT IS SUFFICIENT FOR THE PURPOSES OF THAT PROVISION THAT THE BASIC ELEMENTS OF THE MATTER TO BE DEALT WITH HAVE BEEN ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY THAT PROVISION; THE PROVISIONS IMPLEMENTING THE BASIC REGULATIONS MAY BE ADOPTED BY THE COUNCIL ACCORDING TO A PROCEDURE DIFFERENT FROM THAT LAID DOWN IN ARTICLE 43 OF THE TREATY, AS IS PROVIDED FOR IN ARTICLE 11 OF REGULATION NO 170/83 . NEVERTHELESS, AN IMPLEMENTING REGULATION, LIKE REGULATION NO 1/85, ADOPTED WITHOUT CONSULTATION OF THE EUROPEAN PARLIAMENT, MUST RESPECT THE BASIC ELEMENTS LAID DOWN IN THE BASIC REGULATION, IN THIS CASE REGULATION NO 170/83, AFTER CONSULTATION OF THE EUROPEAN PARLIAMENT .
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27 So, the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations may affect the security of a Member State.
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55. It should be borne in mind, however, that even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration (see, to that effect, with regard to Directive 85/337, Case C‑392/96 Commission v Ireland [1999] ECR I‑5901, paragraph 66).
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66 Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration.
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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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68. In the present case, while it is true that the restrictions at issue apply without distinction to both residents and non-residents, it must none the less be held that they affect the position of a person acquiring a shareholding as such and are thus liable to deter investors from other Member States from making such investments and, consequently, affect access to the market (see Case C‑463/00 Commission v Spain , paragraph 61 and case-law cited, and Case C‑171/08 Commission v Portugal , paragraph 67).
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61. In the present case, the majority of the conventions for the avoidance of double taxation concluded by the Kingdom of Spain provide that the amount deducted or set off in respect of tax withheld in Spain cannot exceed the fraction of the tax in the Member State of residence paid by the recipient company, calculated before the deduction, corresponding to taxable income in Spain.
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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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18 It must be borne in mind at the outset that the services provided by travel agents and tour operators most frequently consist of multiple services, in particular transport and accommodation, supplied either within or outside the territory of the Member State in which the undertaking has established its business or has a fixed establishment. The application of the normal rules on place of taxation, taxable amount and deduction of input tax would, by reason of the multiplicity of services and the places in which they are provided, entail practical difficulties for those undertakings of such a nature as to obstruct their operations. In order to adapt the applicable rules to the specific nature of such operations, the Community legislature set up a special VAT scheme in Article 26(2), (3) and (4) of the Sixth Directive (see Case C-163/91 Van Ginkel v Inspecteur der Omzetbelasting te Utrecht [1992] ECR I-5723, paragraphs 13 to 15).
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13 The services provided by these undertakings most frequently consist of multiple services, particularly as regards transport and accommodation, either within or outside the territory of the Member State in which the undertaking has established its business or has a fixed establishment.
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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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31. Au regard de l’argumentation exposée au point 22 du présent arrêt, il convient de rappeler qu’un État membre ne saurait exciper de dispositions, de pratiques ou de situations de son ordre juridique interne pour justifier l’inobservation des obligations et des délais prescrits par une directive (voir, notamment, arrêts du 4 octobre 2001, Commission/Luxembourg, C‑450/00, Rec. p. I‑7069, point 8, et du 25 février 2010, Commission/Espagne, C‑295/09, point 10).
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8 In that regard, it must be pointed out that, in accordance with settled case-law, 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 Case C-470/98 Commission v Greece [2000] ECR I-4657, paragraph 11, and Case C-423/99 Commission v Italy [2000] ECR I-11167, paragraph 10).
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51
In that context, it must be noted that the Portuguese Government did not provide any indication of the reasons which might prevent the national tax authorities from taking into account evidence provided by non-resident financial institutions.
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71. It follows from the case‑law (see, in particular, Dansk Rørindustri and Others v Commission , paragraphs 240 to 242) that, whereas the basic amount of the fine is set according to the infringement, its gravity is determined by reference to numerous other factors, in respect of which the Commission has a wide discretion. To take into account aggravating circumstances when setting the fine is consistent with the Commission’s task of ensuring compliance with the competition rules.
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241. The gravity of the infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (see, in particular, Limburgse Vinyl Maatschappij and Others v Commission , paragraph 465).
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53 Furthermore, the 33rd recital in the preamble shows that the Directive aims to ensure a minimum level of transparency in the award of the contracts to which it applies.
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29. With regard to the first condition, it must be held that Article 14(1)(a) of Directive 2003/96, in so far as it imposes on Member States the obligation not to impose taxation under the directive on energy products used to produce electricity, is sufficiently precise, since it lays down clearly the products covered by the exemption (see, by analogy, Case 8/81 Becker [1982] ECR 53, paragraph 27, and Braathens , paragraph 31).
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27 INASMUCH AS IT SPECIFIES THE EXEMPT SERVICE AND THE PERSON ENTITLED TO THE EXEMPTION , THE PROVISION , TAKEN BY ITSELF , IS SUFFICIENTLY PRECISE TO BE RELIED UPON BY AN INDIVIDUAL AND APPLIED BY A COURT . HOWEVER , IT REMAINS TO BE CONSIDERED WHETHER THE RIGHT TO EXEMPTION WHICH IT CONFERS MAY BE CONSIDERED TO BE UNCONDITIONAL , HAVING REGARD TO THE GENERAL SCHEME OF THE DIRECTIVE , TO THE CONTEXT IN WHICH ARTICLE 13 IS PLACED AND ALSO TO THE PARTICULAR CHARACTERISTICS OF THE SYSTEM OF TAXATION WITHIN WHICH THE EXEMPTION IS TO APPLY .
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16 IT MUST THEREFORE BE CONCLUDED THAT THE COMMISSION HAS SATISFIED ITS OBLIGATIONS IN THE MATTER OF PROOF ONCE IT ESTABLISHES THAT A MEMBER STATE HAS INFRINGED THE RULES OF THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS . WHERE THE COMMISSION HAS CHOSEN TO CALCULATE THE AMOUNT OF THE EXPENDITURE CONCERNED BY THE INFRINGEMENT BY EXAMINING THE MANNER IN WHICH THE IRREGULARITY AFFECTED EAGGF EXPENDITURE, AS IS THE SITUATION IN THIS CASE, IT IS FOR THE MEMBER STATE CONCERNED TO PROVE THAT THE EXPENDITURE IN QUESTION WAS NOT INCREASED AS A RESULT OF THAT IRREGULARITY OR THAT IT WAS INCREASED BY AN AMOUNT LESS THAN THAT CALCULATED BY THE COMMISSION .
THE QUESTION WHETHER THE DIFFERENTIAL PRICING PRACTICES IN QUESTION ARE COMPATIBLE WITH COMMUNITY LAW AND WHETHER THEY ARE LIABLE TO ENTAIL AN INCREASE IN EAGGF EXPENDITURE
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38 In that regard, it should be borne in mind, first, that, pursuant to Article 168A of the EC Treaty (now Article 225 EC) and the first paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal may rely only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The appraisal by the Court of First Instance of the evidence put before it does not constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (see, inter alia, Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraphs 10 and 42).
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10 It should be pointed out, before considering Hilti' s pleas, that the Court of Justice has consistently held that pursuant to Article 168A of the EEC Treaty and Article 51 of the Statute of the Court of Justice of the EEC an appeal may rely only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts (see, in particular, the judgments in Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 12, and in Case C-346/90 P F. v Commission [1992] ECR I-2691, paragraph 7).
The first plea
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54 The motor-vehicle tax, which is applied without distinction to vehicles assembled and manufactured in Portugal and to imported new and second-hand vehicles alike, is part of such a general system of internal charges imposed on categories of products in accordance with an objective criterion, namely cubic capacity.
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58. It is established that a restriction on the free movement of goods may be justified on one of the public interest grounds set out in Article 36 TFEU or in order to meet overriding requirements. In either case, the national provision must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (see Ker-Optika , paragraph 57).
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57. According to settled case-law, an obstacle to the free movement of goods may be justified on one of the public interest grounds set out in Article 36 TFEU or in order to meet overriding requirements. In either case, the national provision must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (see, inter alia, Commission v Italy , paragraph 59 and the case-law cited).
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21 IN THAT JUDGMENT THE COURT , WHILST ACKNOWLEDGING THAT IN CERTAIN CIRCUMSTANCES MEMBER STATES ARE ENTITLED TO LEVY HEALTH INSPECTION CHARGES ON IMPORTS FROM NON-MEMBER COUNTRIES , STATED THAT THOSE CHARGES MUST NEVERTHELESS BE LIMITED SO AS TO PREVENT DISTORTIONS OF COMPETITION AND DEFLECTIONS OF TRADE WITHIN THE COMMON MARKET . IT MUST BE NOTED THAT SUCH EFFECTS ARE AVOIDED TO THE EXTENT TO WHICH THE HEALTH CHARGES DO NOT EXCEED THE ACTUAL COST OF THE CONTROLS IN QUESTION . THEREFORE IT CANNOT BE INFERRED FROM THOSE CONSIDERATIONS THAT THE CHARGING OF FEES FOR HEALTH INSPECTIONS OF PRODUCTS IMPORTED FROM NON-MEMBER COUNTRIES IS SUBJECT TO PROOF THAT IDENTICAL OR COMPARABLE CHARGES ARE LEVIED BY ALL THE OTHER MEMBER STATES .
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39. Recourse to the public policy rule in Article 23(a) of that regulation should thus come into consideration only where, taking into account the best interests of the child, recognition of the judgment given in another Member State would be at variance to an unacceptable degree with the legal order of the State in which recognition is sought, in that it would infringe a fundamental principle. In order to comply with the prohibition laid down in Article 26 of the regulation of any review of the substance of a judgment given in another Member State, the infringement would have to constitute a manifest breach, having regard to the best interests of the child, of a rule of law regarded as essential in the legal order of the State in which recognition is sought or of a right recognised as being fundamental within that legal order (see, by analogy, judgment in Diageo Brands , C‑681/13, EU:C:2015:471, paragraph 44).
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44. Recourse to the public-policy clause in Article 34(1) of Regulation No 44/2001 may therefore be envisaged only where recognition of the judgment given in another Member State would be at variance to an unacceptable degree with the legal order of the State in which recognition is sought, inasmuch as it would infringe a fundamental principle. In order for the prohibition of any review of the substance of a judgment of another Member State to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which recognition is sought or of a right recognised as being fundamental within that legal order (see judgment in flyLAL-Lithuanian Airlines , C‑302/13, EU:C:2014:2319, paragraph 49 and the case-law cited).
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54 It is true that a monopoly such as Systembolaget has only a limited number of `shops'. However, it does not appear from the information provided to the Court that the number of sales outlets are limited to the point of compromising consumers' procurement of supplies of domestic or imported alcoholic beverages.
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73. In the absence of such Community harmonisation, it is in principle for the Member States to decide on the degree of protection which they wish to afford to such legitimate interests and on the way in which that protection is to be achieved. They may do so, however, only within the limits set by the Treaty and must, in particular, observe the principle of proportionality, which requires that the measures adopted be appropriate to secure the attainment of the objective which they pursue and not go beyond what is necessary in order to attain it (see Commission v Portugal , paragraph 49; Commission v France , paragraph 45; Commission v Belgium , paragraph 45; Commission v Spain , paragraph 68; Commission v Italy , paragraph 35; and Commission v Netherlands , paragraph 33).
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33. In the absence of such Community harmonisation, it is in principle for the Member States to decide on the degree of protection which they wish to afford to such legitimate interests and on the way in which that protection is to be achieved. They may do so, however, only within the limits set by the Treaty and must, in particular, observe the principle of proportionality, which requires that the measures adopted be appropriate to secure the attainment of the objective which they pursue and not go beyond what is necessary in order to attain it (see, to that effect, Case C‑503/99 Commission v Belgium [2002] ECR I-4809, paragraph 45).
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72 It is undisputed that the transactions in shares and other securities covered by point 5 of Article 13B(d) of the Sixth Directive, which excludes only management and safekeeping of securities, include transactions on the market in marketable securities.
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34. Concerning the second and third limbs of this plea, with regard to lis alibi pendens in relation to Case T‑231/00, it should be recalled that, according to settled case-law, a complaint directed against a ground included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and is therefore nugatory (Case C‑399/08 P Commission v Deutsche Post [2010] ECR I‑0000, paragraph 75 and case-law cited).
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75. It should be recalled that, according to settled case-law, a complaint directed against a ground included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and is therefore nugatory (Case C‑184/01 P Hirschfeldt v EEA [2002] ECR I‑10173, paragraph 48; Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 148; and order of 9 March 2007 in Case C‑188/06 P Schneider Electric v Commission , paragraph 64).
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21 It must be observed in that regard that the concept of establishment, within the meaning of Article 52 et seq. of the Treaty, involves the actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period.
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77. The Court has none the less held, in essence, that particular circumstances may be capable, by virtue of the principle of sincere cooperation arising from Article 4(3) TEU, of requiring a national administrative body to review an administrative decision that has become final, in particular to take account of the interpretation of a relevant provision of European law which the Court has given subsequently (see Kempter , paragraph 38). It can be seen from the case-law that, in that context, the Court has taken account of the particular features of the situations and interests at issue in order to strike a balance between the requirement for legal certainty and the requirement for legality under EU law (see, to that effect, inter alia, Kühne & Heitz , paragraphs 25 and 26; i - 21 Germany and Arcor , paragraphs 53, 63 and 64; Kempter , paragraphs 46, 55 and 60; and Fallimento Olimpiclub , paragraphs 22, 26 and 31).
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31. In those circumstances, it must be held that such extensive obstacles to the effective application of the Community rules on VAT cannot reasonably be regarded as justified in the interests of legal certainty and must therefore be considered to be contrary to the principle of effectiveness.
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111. In this context, it is to be noted, first of all, that the right holders at issue in the main proceedings are remunerated for the broadcasting of the protected subject-matter from the Member State of broadcast in which the act of broadcasting is deemed to take place, in accordance with Article 1(2)(b) of the Satellite Broadcasting Directive, and in which the appropriate remuneration is therefore payable.
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58 Circumstances such as those in the main proceedings are not such as to give rise to problems of a technical nature relating in particular to the aggregation of periods completed in different Member States, to non-overlapping of benefits paid by different competent institutions or to determination of the applicable national legislation, since the plaintiff in the main proceedings merely invokes for the combined application of the legislation of the host Member State and of the principle of non-discrimination on grounds of nationality embodied in Article 3(1) of Decision No 3/80. That claim can be examined without any need for recourse to coordinating measures which the Council has not yet adopted.
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31 Thus, Regulation No 1408/71, which the Council adopted on the basis of Article 51 of the Treaty, implements the fundamental principle enshrined in that provision, which consists in securing, for migrant workers and those entitled under them, aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the various laws of the Member States. Nevertheless, in order to give practical effect to the aggregation rules set out in Regulation No 1408/71, it was necessary to adopt Article 15 of Regulation No 574/72.
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35. In this connection, it is true that in paragraph 75 of Müller-Fauré and van Riet , after emphasising how difficult it is to distinguish ‘hospital services’ from ‘non‑hospital services’, the Court pointed out that services provided in a hospital environment but that could also be provided by a practitioner in his surgery or in a health centre could, for that reason, be placed on the same footing as non-hospital services.
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10 As the Court has consistently held, in the field covered by the Directive, the Member States retain only the limited powers granted them by the actual provisions of the Directive and of those directives amending it (Case 158/80 REWE [1981] ECR 1805, at paragraph 36, Case 278/82 REWE [1984] ECR 721, at paragraph 31, Case C-158/88 Commission v Ireland [1990] ECR I-2367, at paragraph 7, and Case 208/88 Commission v Denmark [1990] ECR I-4445, at paragraph 7).
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31 THAT ARGUMENT MUST ALSO BE REJECTED . IN FACT , AS THE COURT HAS STATED IN ITS JUDGMENT OF 7 JULY 1981 , CITED ABOVE : ' ' IN ADOPTING DIRECTIVE 69/169 , AND THE SECOND AND THIRD DIRECTIVES OF 12 JUNE 1972 AND 10 DECEMBER 1978 RESPECTIVELY WHICH SUPPLEMENT IT , THE COUNCIL INTENDED GRADUALLY TO ESTABLISH A COMPLETE SYSTEM OF EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTY FOR GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE . CONSEQUENTLY IN THIS FIELD THE MEMBER STATES ARE LEFT WITH ONLY THE RESTRICTED POWER GIVEN TO THEM BY THE DIRECTIVES TO GRANT EXEMPTIONS OTHER THAN THOSE SPECIFIED IN THE DIRECTIVES . ' ' IT FOLLOWS THAT THE COMMUNITY RULES ARE EXHAUSTIVE IN THE MATTER AND THAT THE MEMBER STATES RETAIN ONLY THE RESTRICTED POWER GIVEN TO THEM BY THE PROVISIONS OF THE AFOREMENTIONED DIRECTIVES THEMSELVES .
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29. Indeed, a person who has participated in certain preparatory works may be at an advantage when formulating his tender on account of the information concerning the public contract in question which he has received when carrying out that work. However, all tenderers must have equality of opportunity when formulating their tenders (see, to that effect, Case C-87/94 Commission v Belgium [1996] ECR I‑2043, paragraph 54).
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39. The prohibition on measures having equivalent effect to restrictions set out in Article 30 of the Treaty covers all commercial rules enacted by the Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see, in particular, Case 8/74 Dassonville [1974] ECR 837, paragraph 5; Commission v Denmark , paragraph 39; and Commission v France , paragraph 22).
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22. The prohibition set out in Article 30 of the Treaty on measures having an effect equivalent to restrictions covers all commercial rules enacted by the Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see in particular Case 8/74 Dassonville [1974] ECR 837, paragraph 5, and Case C-192/01 Commission v Denmark [2003] ECR I-0000, paragraph 39).
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36. The Court has already answered an identical question in the affirmative in paragraphs 59 to 63 of the judgment in Stichting Zuid‑Hollandse Milieufederatie .
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51. The Court has held that, while the principle of respect for the rights of the defence applies, inter alia, to a post-clearance recovery procedure, in relations between a debtor and a Member State, it cannot however, as regards the relations between the Member States and the European Union, result in a Member State being entitled to disregard its obligation to enter in the accounts, within the time-limits laid down by European Union legislation, the entitlement of the European Union to its own resources ( Commission v Spain , EU:C:2006:132, paragraph 33, and Commission v Italy , EU:C:2010:347, paragraph 45).
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45. However, although the principle of observance of the rights of the defence applies, inter alia, to a subsequent recovery procedure, in regard to relations between a debtor and a Member State, it cannot, as regards the relations between the Member States and the Communities, result in a Member State being entitled to disregard its obligation to enter into the accounts, within the time-limits laid down in the Community legislation, the Communities’ own resources entitlement ( Commission v Spain , paragraph 33).
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42. The Court has recognised that leniency programmes are useful tools if efforts to uncover and bring an end to infringements of competition rules are to be effective and thus serve the objective of effective application of Articles 101 TFEU and 102 TFEU. The effectiveness of those programmes could be compromised if documents relating to leniency proceedings were disclosed to persons wishing to bring an action for damages. The view can reasonably be taken that a person involved in an infringement of competition law, faced with the possibility of such disclosure, would be deterred from taking the opportunity offered by such leniency programmes ( Pfleiderer , paragraphs 25 to 27).
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21. It should be noted at the outset that the pre-contractual obligations referred to in the questions contribute to attaining the objective pursued by Directive 2008/48, which, as can be seen from recitals 7 and 9 in the preamble to that directive, consists in providing, as regards consumer credit, full and mandatory harmonisation in a number of key areas, which is regarded as necessary in order to ensure that all consumers in the European Union enjoy a high and equivalent level of protection of their interests and to facilitate the emergence of a well-functioning internal market in consumer credit (see judgment in LCL Le Crédit Lyonnais , C‑565/12, EU:C:2014:190, paragraph 42).
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42. Since the creditor’s obligation, prior to conclusion of the agreement, to assess the borrower’s creditworthiness is intended to protect consumers against the risks of over-indebtedness and bankruptcy, it contributes to attaining the objective of Directive 2008/48, which consists, as can be seen from recitals 7 and 9 in the preamble to that directive, in providing, as regards consumer credit, full and mandatory harmonisation in a number of key areas, which is regarded as necessary in order to ensure that all consumers in the European Union enjoy a high and equivalent level of protection of their interests and to facilitate the emergence of a well-functioning internal market in consumer credit.
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50. In those circumstances, the Court finds that the imposition of a penalty payment on the Hellenic Republic constitutes an appropriate financial means of ensuring full compliance with the judgment in Commission v Greece (EU:C:2005:592) (see, to that effect, judgment in Commission v Ireland , C‑374/11, EU:C:2012:827, paragraph 35 and case-law cited).
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32. In the light of the foregoing considerations, the Court has held that Article 6(1) of Directive 93/13 precludes a rule of national law which allows a national court, if it finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, to adjust the contract by revising the content of that term (judgments in Banco Español de Crédito , EU:C:2012:349, paragraph 73, and in Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 77).
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73. In the light of the foregoing, the answer to the second question is that Article 6(1) of Directive 93/13 must be interpreted as precluding legislation of a Member State, such as Article 83 of Legislative Decree 1/2007, which allows a national court, in the case where it finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, to modify that contract by revising the content of that term.
The third to sixth questions
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39. The fixing of that period at two months would not appear liable to render practically impossible or excessively difficult the exercise of rights conferred by European Union law.
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28. As regards, first, the principle of effectiveness, it should be recalled that every case in which the question arises whether a national procedural provision makes the exercise of rights arising under the EU legal order impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. For those purposes account must be taken of the basic principles which lie at the basis of the domestic judicial system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct procedure (see the judgments in Peterbroeck , C‑312/93, EU:C:1995:437, paragraph 14, and Fallimento Olimpiclub , EU:C:2009:506, paragraph 27).
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27. In that connection, it should be borne in mind that the Court has already held that every case in which the question arises as to whether a national procedural provision makes the application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. For those purposes, account must be taken, where appropriate, of the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure (Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 14).
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51. It should be remembered that, having been adopted on the basis of Article 255(2) EC, Regulation No 1049/2001 is designed, as recital 4 and Article 1 thereof indicate, to confer on the public as wide a right of access as possible to documents of the institutions. It is also apparent from the said regulation, in particular from recital 11 and from Article 4 thereof, which lays down a regime of exceptions in that regard, that that right of access is nevertheless subject to certain limits based on reasons of public or private interest.
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31. It must be recalled that, according to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force (see, inter alia, Salumi and Others , paragraph 9; Joined Cases C‑121/91 and C‑122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I-3873, paragraph 22; Case C‑61/98 De Haan [1999] ECR I-5003, paragraph 13; and Case C‑251/00 Ilumitrónica [2002] ECR I-10433, paragraph 29).
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22 It should be noted that, according to consistent case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force (see, in particular, the judgment in Case 212/80 Amministrazione delle Finanze dello Stato v Salumi [1981] ECR 2735, paragraph 9).
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52. By limiting the possibility for other shareholders to participate in the company with a view to establishing or maintaining lasting and direct economic links with it which would make possible effective participation in the management of that company or in its control, this situation is liable to deter direct investors from other Member States.
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19. Since, if such a supply of services is not separate from the supply of mobile telephone services, the SPHC would receive the same tax treatment as the sums payable for the latter services (see, to that effect, Case C‑349/96 CPP [1999] ECR I‑973, paragraph 32, and Case C‑453/05 Ludwig [2007] ECR I‑5083, paragraph 20), it is appropriate to consider the eighth question first of all.
The eighth question
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32 The answer to the first two questions must therefore be that it is for the national court to determine, in the light of the above criteria, whether transactions such as those performed by CPP are to be regarded for VAT purposes as comprising two independent supplies, namely an exempt insurance supply and a taxable card registration service, or whether one of those two supplies is the principal supply to which the other is ancillary, so that it receives the same tax treatment as the principal supply.
Question 4
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55. Under the legislation at issue in the main proceedings, testimony given during the preliminary enquiries must generally be repeated at the trial in order to acquire full evidential value. It is, however, permissible in certain cases to give that testimony only once, during the preliminary enquiries, with the same probative value, but under different arrangements from those which apply at the trial.
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71 On that point, it should be noted that, according to consistent case-law, it is first and foremost for the party seeking to establish the Community's liability to adduce conclusive proof as to the existence or extent of the damage he alleges and to establish the causal link between that damage and the conduct complained of on the part of the Community institutions (see, in particular, Case 26/74 Roquette Frères v Commission [1976] ECR 677, paragraphs 22 and 23, and Blackspur DIY and Others v Council and Commission, cited above, paragraph 31).
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23 ALTHOUGH THE COURT EXPRESSLY REQUESTED THE APPLICANT TO SUPPLEMENT THE PARTICULARS OF ITS CLAIM IN THIS RESPECT , THE LATTER MERELY PRODUCED OVERALL FIGURES THE INTERPRETATION OF WHICH IS DOUBTFUL AND IT FAILED TO PROVE ANY ACTUAL DAMAGE WHICH IT HAS SPECIFICALLY SUFFERED IN THE COURSE OF ITS BUSINESS OR A CAUSAL CONNEXION BETWEEN THIS DAMAGE AND THE MEASURES ADOPTED BY THE COMMISSION .
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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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41. The first such situation is where the European Union intends to implement a particular obligation assumed in the context of those WTO agreements and the second where the EU act at issue refers explicitly to specific provisions of those agreements (see, to that effect, in particular judgments in Fediol v Commission , 70/87, EU:C:1989:254, paragraphs 19 to 22; Nakajima v Council , C‑69/89, EU:C:1991:186, paragraphs 29 to 32; Biret et Cie v Council , C‑94/02 P, EU:C:2003:518, paragraph 73; and Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht , C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 56).
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32 In those circumstances, it is necessary to examine whether the Council went beyond the legal framework thus laid down, as Nakajima claims, and whether, by adopting the disputed provision, it acted in breach of Article 2(4) and (6) of the Anti-Dumping Code.
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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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69. On the contrary, a ban on the export of illicit devices to the European Union concerns the defence of the European Union’s global interests and falls, by its very nature, within the ambit of the common commercial policy (see, to that effect, Opinion 1/75 of 11 November 1975 ECR 1335 and 1364; Opinion 1/94 of 15 November 1994 ECR I‑5267, paragraphs 55, 63 and 71; and Case C‑94/03 Commission v Council [2006] ECR I-1, paragraphs 46, 47 and 49).
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49. Those findings concerning the commercial component of the Convention cannot be called in question by the fact that the Convention tends more to restrict trade in such products than to promote it. As the Commission has rightly pointed out in its written submissions, numerous Community measures have been adopted on the basis of Article 133 EC or, previously, Article 113 of the EC Treaty (now, after amendment, Article 133 EC), even though they were explicitly designed to restrict, or indeed prohibit entirely, imports or exports of certain products (see, in that connection, in particular, Case C-70/94 Werner [1995] ECR I-3189, paragraph 10; Case C-83/94 Leifer [1995] ECR I-3231, paragraph 10; and Case C‑124/95 Centro-Com [1997] ECR I-81, paragraph 26).
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146. Odile Jacob expressly stated in its originating application that the documents at issue would be able to enable it to present more convincing arguments in its actions for annulment which it had brought against the decision on compatibility and the approval decision. Accordingly, Odile Jacob has failed to demonstrate any overriding public interest justifying disclosure of the documents at issue and this plea in law must be rejected as unfounded.
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37. L’article 71 du règlement nº 44/2001 ne peut avoir une portée qui soit en conflit avec les principes sous-tendant la législation dont il fait partie. Dès lors, cet article ne saurait être interprété en ce sens que, dans un domaine couvert par ce règlement, tel que le transport de marchandises par route, une convention spéciale, telle que la CMR, puisse conduire à des résultats qui soient moins favorables à la réalisation du bon fonctionnement du marché intérieur que ceux auxquels aboutissent les dispositions dudit règlement (arrêt TNT Express Nederland, précité, point 51).
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51. Article 71 of Regulation No 44/2001 cannot have a purport that conflicts with the principles underlying the legislation of which it is part. Accordingly, that article cannot be interpreted as meaning that, in a field covered by the regulation, such as the carriage of goods by road, a specialised convention, such as the CMR, may lead to results which are less favourable for achieving sound operation of the internal market than the results to which the regulation’s provisions lead.
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19. In accordance with settled case-law, it is necessary to determine, for the purposes of establishing whether the advantage given to the beneficiary is a burden on the State budget, whether there exists a sufficiently direct link between, on the one hand, that advantage and, on the other hand, a reduction of the State budget, or a sufficiently concrete economic risk of burdens on that budget (judgment in Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others , C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 109).
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75. In accordance with settled case-law, national measures capable of hindering intra-Community trade may be justified by overriding requirements relating to protection of the environment provided that the measures in question are proportionate to the aim pursued ( Commission v Denmark , paragraphs 6 and 9, and Case C-389/96 Aher-Waggon [1998] ECR I-4473, paragraph 20).
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6 The first point which must be made in resolving this dispute is that, according to an established body of case-law of the Court ( judgment of 20 February 1979 in Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fuer Branntwein (( 1979 )) ECR 649; judgment of 10 November 1982 in Case 261/81 Walter Rau Lebensmittelwerke v De Smedt PvbA (( 1982 )) ECR 3961 ), in the absence of common rules relating to the marketing of the products in question, obstacles to free movement within the Community resulting from disparities between the national laws must be accepted in so far as such rules, applicable to domestic and imported products without distinction, may be recognized as being necessary in order to satisfy mandatory requirements recognized by Community law . Such rules must also be proportionate to the aim in view . If a Member State has a choice between various measures for achieving the same aim, it should choose the means which least restricts the free movement of goods .
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21. Under the second subparagraph of Article 2(7)(a) of the basic regulation, an appropriate market economy third country is to be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Indeed, it is for the European Union institutions, whilst taking account of the possible alternatives, to try to find a third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country.
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67
However, it is only in circumstances where the action for annulment would unquestionably have been admissible that the Court has held that a person may not plead the invalidity of an act of the European Union before a national court (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 17 to 25; of 30 January 1997, Wiljo, C‑178/95, EU:C:1997:46, paragraphs 15 to 25; of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 29 to 40; and of 22 October 2002, National Farmers’ Union, C‑241/01, EU:C:2002:604, paragraphs 34 to 39). In numerous other cases, the Court has held that it was not established that the action would unquestionably have been admissible (see, inter alia, to that effect, judgments of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraphs 30 to 34; of 8 March 2007, Roquette Frères, C‑441/05, EU:C:2007:150, paragraphs 35 to 48; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 37 to 52; of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 24 to 38; and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraphs 27 to 32).
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52. It follows that, as the national court pointed out, the defendants – unlike DHKP‑C – did not have an indisputable right to bring an action under Article 230 EC for the annulment of that listing.
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26
The framework agreement, in particular clause 4 thereof, aims to apply the principle of non-discrimination to fixed-term workers in order to prevent an employer using such an employment relationship to deny those workers rights which are recognised for permanent workers (judgments of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 37; of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraph 48 and of 13 March 2014, NierodzikC‑38/13, EU:C:2014:152, paragraph 23).
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45. More specifically, with regard to the referring court’s question concerning the examination to be carried out to determine whether increases of a tax such as that at issue in the main proceedings are compatible with the standstill clause in Article 1 of Protocol No 5 on bananas annexed to the Fourth Lomé Convention, such increases lead to increases in the price of the bananas concerned and, accordingly, make it more difficult to sell them on the market in question ( Chiquita Italia , paragraph 60). Accordingly, in order to examine such an increase from the perspective of the standstill clause, it is not normally necessary to examine the specific effects of the increase on imports.
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60 It cannot be denied that that standstill clause precludes increases in a tax such as the tax at issue. Such increases lead to increases in the price of the bananas concerned and, accordingly, they make it more difficult to sell them on the market in 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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52. As the Court of First Instance observed in paragraph 61 of the contested judgment, given their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions (see Portugal v Council , paragraph 47; the order in OGT Fruchthandelsgesellschaft , paragraph 24; and the judgments in Omega Air and Others , paragraph 93, and Case C-76/00 P Petrotub and Republica v Council [2003] ECR I-79, paragraph 53).
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47 It follows from all those considerations that, having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions.
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26. Pursuant to the second subparagraph of Article 25(1) of Regulation No 1346/2000, the first subparagraph of Article 25(1) is also to apply to judgments deriving directly from the insolvency proceedings and which are closely linked with them. In other words, that provision allows the possibility for courts of a Member State within the territory of which insolvency proceedings have been opened, pursuant to Article 3(1) of that regulation, also to hear and determine an action of the type at issue in the main proceedings.
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74. Furthermore, as the Commission points out, the Portuguese legislation in issue in the main proceedings is substantially similar to the Finnish legislation on slot machines, in issue in Läärä and Others , in respect of which the Court found that it was not disproportionate, in view of the objectives which justified it ( Läärä and Others , cited above, paragraph 42). Moreover, the Court considered that limited authorisation of gambling on the basis of special or exclusive rights granted or assigned to certain bodies, falls within the ambit of such public-interest objectives (Case C-67/98 Zenatti [1999] ECR I-7289, paragraph 35).
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42 In those circumstances, in conferring exclusive rights on a single public body, the provisions of the Finnish legislation on the operation of slot machines do not appear to be disproportionate, in so far as they affect freedom to provide services, to the objectives they pursue.
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27. Those aspects, raised by the case-law cited, must be taken into account in the analysis of the characteristics of the period at issue in the main proceedings. Thus, as the Advocate general observed, in point 45 of his Opinion, that analysis must cover two aspects, namely the duration of the time-limit laid down by the legislature and the mechanism adopted to start that period running.
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44 It follows that the members of the CNSD cannot be characterised as independent experts (see, to that effect, Case C-185/91 Reiff [1993] ECR I-5801, paragraphs 17 and 19; Case C-153/93 Delta Schiffahrts- und Speditionsgesellschaft [1994] ECR I-2517, paragraphs 16 and 18; and Joined Cases C-140/94 to C-142/94 DIP and Others [1995] ECR I-3257, paragraphs 18 and 19) and that they are not required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the general interest and the interests of undertakings in other sectors or users of the services in question (judgments cited above, Reiff, paragraphs 18 and 24; Delta Schiffahrts- und Speditionsgesellschaft, paragraph 17; and DIP and Others, paragraph 18).
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16 As regards rules such as those constituted by the BinnSchVG, it should first be noted that the members of the freight commissions, while not described as experts in tariff matters, unlike the members of the tariff commissions set up by the Law on the carriage of goods by road which was in point in the judgment in Reiff, hold an honorary office and are not bound by orders or instructions. As regards the expanded freight commissions, the BinnSchVG expressly underlines the independent role of the chairman and the two assessors who have three of the five votes.
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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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En outre, l’article 56 TFUE confère des droits non seulement au prestataire de services lui-même, mais également au destinataire
desdits services (arrêts Eurowings Luftverkehr, C‑294/97, EU:C:1999:524, point 34; FKP Scorpio Konzertproduktionen, C‑290/04,
EU:C:2006:630, point 32; Dijkman et Dijkman-Lavaleije, C‑233/09, EU:C:2010:397, point 24, ainsi que X, C‑498/10, EU:C:2012:635,
point 23).
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34 It has also consistently held that Article 59 of the Treaty confers rights not only on the provider of services but also on the recipient (see inter alia Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377 and Svensson and Gustavsson, cited above). As the recipient of the leasing services, therefore, Eurowings may rely on the individual rights conferred on it by that provision.
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12. Accordingly, since it is the legal basis of a measure that determines the procedure to be followed in adopting that measure (judgments in Parliament v Council , C‑130/10, EU:C:2012:472, paragraph 80, and Parliament v Council , C‑658/11, EU:C:2014:2025, paragraph 57), it is appropriate to examine in the first place the second plea in law.
The second plea in law, alleging that a repealed or invalid legal basis was chosen
The first part of the second plea in law, alleging that a repealed legal basis was chosen
– Arguments of the parties
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41
That interpretation is capable of preserving the effectiveness of Article 14(1) of Regulation No 1/2005, which must be interpreted as meaning that, in order for transport involving a long journey for animals concerned which commences on the territory of the European Union and continues outside that territory to be authorised by the competent authority of the place of departure, the organiser of the journey must submit a journey log which is realistic and indicates that the provisions of that regulation will be complied with, including for the stages of the journey which are to take place in the territory of third countries (judgment of 23 April 2015, Zuchtvieh-Export, C‑424/13, EU:C:2015:259, paragraph 56).
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56. In the light of the foregoing considerations, the answer to the questions referred is that Article 14(1) of Regulation No 1/2005 must be interpreted as meaning that, in order for transport involving a long journey for animals concerned which commences on the territory of the European Union and continues outside that territory to be authorised by the competent authority of the place of departure, the organiser of the journey must submit a journey log which, in the light of the arrangements for the journey as planned, is realistic and indicates that the provisions of that regulation will be complied with, including for the stages of the journey which are to take place in the territory of third countries, that authority being empowered, should that not be the case, to require changes to those arrangements to ensure compliance with those provisions throughout the journey.
Costs
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16 In that judgment the Court held, with reference to those factors, that Community law does not prevent national law from having regard, in excluding the recovery of Community aid paid but not due, to the protection of legitimate expectations (Deutsche Milchkontor, paragraph 33).
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19 It is otherwise only if those provisions are justified by objective considerations independent of the nationality of the workers concerned, and if they are proportionate to the legitimate aim pursued by the national law (see, to that effect, Bachmann, paragraph 27; Commission v Luxembourg, paragraph 12; and Joined Cases C-259/91, C-331/91 and C-332/91 Allué and Others v Università degli Studi di Venezia [1993] ECR I-4309, paragraph 15).
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12 That justification cannot be accepted. In the circumstances of the present case, a requirement of prior residence in the Grand Duchy is neither necessary nor appropriate to attain the public health objective that is being sought. Whilst the obligation to undergo certain medical examinations in the Grand Duchy is indeed appropriate in the light of that objective, it is disproportionate not to take account of medical examinations that may have been carried out in other Member States.
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52. It must, however, be recalled that, before making that judgment, the court which has jurisdiction must take into consideration the reasons for the decision of non-return and the evidence on which it is based (judgment in Povse , C‑211/10 PPU, EU:C:2010:400, paragraph 59).
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38. In this context, the Court has already held that the Habitats Directive has the aim that the Member States take appropriate protective measures to preserve the ecological characteristics of sites which host natural habitat types (see Case C‑308/08 Commission v Spain [2010] ECR I‑4281, paragraph 21, and Case C‑404/09 Commission v Spain , paragraph 163).
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21. Under the Habitats Directive, Member States must take appropriate protective measures to preserve the characteristics of sites which host priority natural habitat types and/or priority species and which have been identified by Member States with a view to their inclusion on the Community list. Member States cannot therefore authorise intervention where there is a risk that the ecological characteristics of those sites will be seriously compromised as a result. That is particularly so where there is a risk that intervention of a particular kind will bring about the extinction of priority species present on the sites concerned (see, to that effect, Bund Naturschutz in Bayern and Others , paragraphs 44 and 46).
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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. According to settled case-law, Article 10 EC makes it clear that the Member States are required to cooperate in good faith with the enquiries of the Commission pursuant to Article 226 EC, and to provide the Commission with all the information requested for that purpose (see, inter alia, Case C-478/01 Commission v Luxembourg [2003] ECR I‑2351, paragraph 24).
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24. According to settled case-law, Article 10 EC makes it clear that the Member States are required to cooperate in good faith with the enquiries of the Commission pursuant to Article 226 EC, and to provide the Commission with all the information requested for that purpose (see, inter alia , Case 192/84 Commission v Greece [1985] ECR 3967, paragraph 19, and Case C-375/92 Commission v Spain [1994] ECR I-923, paragraphs 24 to 26).
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25 Time spent by a driver to reach the place where he takes over a tachograph vehicle is liable to have a bearing on his driving, in that it will affect his state of tiredness.
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81. According to settled case-law, only a mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009 (judgments in Mag Instrument v OHIM , C‑136/02 P, EU:C:2004:592, paragraph 31, and Chocoladefabriken Lindt & Sprüngli v OHIM , C‑98/11 P, EU:C:2012:307, paragraph 42).
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42. Only a mark which departs significantly from the norm or customs of the industry and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94 ( Deutsche SiSi-Werke v OHIM , paragraph 31).
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12. De même, la Commission fait valoir que, conformément à la jurisprudence de la Cour, le règlement nº 4055/86, qui étend au secteur du transport maritime entre États membres les règles du traité CE régissant la libre prestation des services, s’oppose à l’application de toute réglementation nationale ayant pour effet de rendre la prestation de services entre États membres plus difficile que la prestation de services purement interne à un État membre, à moins que ladite réglementation n’apparaisse justifiée par une raison impérieuse d’intérêt général et à la condition que les mesures qu’elle édicte soient nécessaires et proportionnées (arrêts du 5 octobre 1994, Commission/France, C‑381/93, Rec. p. I‑5145, points 13 et 17, ainsi que du 14 novembre 2002, Geha Naftiliaki e.a., C‑435/00, Rec. p. I‑10615, point 20).
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24. Article 87(1) EC defines State aid which is governed by the EC Treaty as aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, in so far as it affects trade between Member States. The concept of aid within the meaning of that provision is wider than that of a subsidy because it embraces not only positive benefits, such as the subsidies themselves, but also measures which, in various forms, mitigate the normal burdens on the budget of an undertaking (see, inter alia, Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 19; Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 13; Case C-256/97 DM Transport [1999] ECR I-3913, paragraph 19, and Case C-5/01 Belgium v Commission [2002] ECR I-11991, paragraph 32).
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32. First of all, it should be recalled that, as the Court has already held, the concept of aid is wider than that of a subsidy because it embraces not only positive benefits, such as the subsidies themselves, but also measures which, in various forms, mitigate the normal burdens on the budget of an undertaking and which therefore, without being subsidies in the strict meaning of the word, are similar in character and have the same effect (see, inter alia , Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 39; Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, paragraph 13; Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 34; and Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] ECR I-8365, paragraph 38).
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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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23. In that respect, the Court has always pointed out that, while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, the fact still remains that, in the Community context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the Community institutions (see, to that effect, Case 36/75 Rutili [1975] ECR 1219, paragraphs 26 and 27; Case 30/77 Bouchereau [1977] ECR 1999, paragraphs 33 and 34; Case C‑54/99 Église de scientologie [2000] ECR I‑1335, paragraph 17; and Case C‑36/02 Omega [2004] ECR I‑9609, paragraphs 30 and 31). The Court’s case-law has accordingly made it clear that the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat to one of the fundamental interests of society (see, for example, Rutili , paragraph 28; Bouchereau , paragraph 35; and Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri [2004] ECR I‑5257, paragraph 66).
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35 IN SO FAR AS IT MAY JUSTIFY CERTAIN RESTRICTIONS ON THE FREE MOVEMENT OF PERSONS SUBJECT TO COMMUNITY LAW , RECOURSE BY A NATIONAL AUTHORITY TO THE CONCEPT OF PUBLIC POLICY PRESUPPOSES , IN ANY EVENT , THE EXISTENCE , IN ADDITION TO THE PERTURBATION OF THE SOCIAL ORDER WHICH ANY INFRINGEMENT OF THE LAW INVOLVES , OF A GENUINE AND SUFFICIENTLY SERIOUS THREAT TO THE REQUIREMENTS OF PUBLIC POLICY AFFECTING ONE OF THE FUNDAMENTAL INTERESTS OF SOCIETY .
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58 It is true that the classification of the aid corresponds to an objective situation which does not depend on the assessment made at the stage of the initiation of the procedure under Article 88(2) EC. However, a decision such as that envisaged in paragraph 57 of this judgment implies that the Commission does not intend to examine the aid in the context of the permanent examination of existing aid schemes provided for by Article 88(1) EC and Articles 17 to 19 of the regulation on procedure in State aid cases. That signifies that the Commission is not proposing to the Member State concerned appropriate measures for adapting the aid to the progressive development or functioning of the common market as provided for by those provisions before initiating the procedure, and that, from its point of view, the aid has been and is being unlawfully implemented, in disregard of the suspensory effect, in relation to new aid, which follows from the last sentence of Article 88(3) EC.
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34. Further, the question whether there is an infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case (see, to that effect, Case C‑110/10 P Solvay v Commission [2011] ECR I‑10439, paragraph 63), including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question ( Commission v Kadi , paragraph 102 and the case-law cited).
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63. As regards the hearing of the undertaking concerned before adoption of the contested decision – an argument raised by Solvay in the third ground of appeal – it should be borne in mind that this forms part of the rights of the defence. An infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case.
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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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53. Moreover, the Court has repeatedly held that, in the light of the dual objective of opening up competition and transparency pursued by the directives on the coordination of the procedures for the award of public contracts, the term "contracting authority" must be interpreted in functional terms (see, in particular, Case C-237/99 Commission v France [2001] ECR I-939, paragraphs 41 to 43, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraphs 51 to 53). The Court has also stated that, in the light of that dual purpose, the term "body governed by public law" must be interpreted broadly (Case C-373/00 Adolf Truley [2003] ECR-1931, paragraph 43).
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51. Thus the Court has held that the purpose of coordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State (see, in particular, Case C-380/98 University of Cambridge [2000] ECR I-8035, paragraph 16, and Case C-237/99 Commission v France [2001] ECR I-939, paragraph 41).
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50. That provision thus applies, first, on condition that the applicable legislation is covered by Title II of Regulation No 1408/71 and, second, on condition that the relevant situation remained unchanged.
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27. However, the Court has held that the freedom of movement of persons would not be fully realised if the Member States were able to refuse to grant the benefit of the provisions of EU law to those of their nationals who had taken advantage of its provisions to acquire vocational qualifications in a Member State other than that of which they were nationals. The same consideration applies where a national of a Member State has obtained in another Member State a university qualification which supplements his basic education and training and of which he intends to make use after he returns to his country of origin (see judgment in Kraus , C‑19/92, EU:C:1993:125, paragraphs 16 and 17).
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16 The same reasoning must be followed as regards Article 48 of the Treaty. In its judgment in Knoors, cited above (paragraph 20), the Court held that freedom of movement for workers and the right of establishment guaranteed by Article 48 and 52 of the Treaty were fundamental rights in the Community system, and would not be fully realized if the Member States were able to refuse to grant the benefit of the provisions of Community law to those of their nationals who had taken advantage of its provisions to acquire vocational qualifications in a Member State other than that of which they were nationals.
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51. La notion d’«établissement», au sens de cette disposition, est une notion très large, impliquant la possibilité pour un ressortissant de l’Union européenne de participer, de façon stable et continue, à la vie économique d’un État membre autre que son État membre d’origine, et d’en tirer profit, favorisant ainsi l’interpénétration économique et sociale à l’intérieur de l’Union dans le domaine des activités non salariées (voir, notamment, arrêts du 22 décembre 2008, Commission/Autriche, C‑161/07, Rec. p. I‑10671, point 24, et Commission/Belgique, précité, point 78).
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30. It follows from the case-law of the Court that the predominant element must be determined from the point of view of the typical consumer (see, to that effect, in particular, Levob Verzekeringen and OV Bank , paragraph 22, and Case C-276/09 Everything Everywhere [2010] ECR I-12359, paragraph 26) and having regard, in an overall assessment, to the qualitative and not merely quantitative importance of the elements falling within the exemption provided for under Article 132(1)(m) of the VAT Directive in relation to those not falling within that exemption (see, to that effect, Bog and Others , paragraph 62).
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26. In order to determine whether the taxable person is supplying the customer – envisaged as being a typical consumer – with several distinct principal services or with a single service, the essential features of the transaction must be ascertained and regard must be had to all the circumstances in which that transaction takes place (see, to that effect, CPP , paragraphs 28 and 29; Aktiebolaget NN , paragraphs 21 and 22; Ludwig , paragraph 17; and order in Tiercé Ladbroke and Derby , paragraphs 19 and 20).
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45 It is sufficient to state in that connection that the directive itself lays down in binding manner the measures to be taken by the Member States where the Council does not fix emission limit values for List I substances. It follows that the directive does not dispense the Member State from complying with the obligations it imposes pending adoption of measures by the Council under Article 6.
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68. Compliance with European Union law and, in particular, Articles 20 and 21 of Regulation No 562/2006, must be ensured by setting up and complying with a framework of rules guaranteeing that the practical exercise of that power, consisting in carrying out identity controls, in the context of combating illegal residence and cross-border crime linked to illegal immigration, cannot have an effect equivalent to border checks ( Melki and Abdeli , paragraphs 73 and 74).
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74. In order to comply with Articles 20 and 21(a) of Regulation No 562/2006, interpreted in the light of the requirement of legal certainty, national legislation granting a power to police authorities to carry out identity checks – a power which, first, is restricted to the border area of the Member State with other Member States and, second, does not depend upon the behaviour of the person checked or on specific circumstances giving rise to a risk of breach of public order – must provide the necessary framework for the power granted to those authorities in order, inter alia, to guide the discretion which those authorities enjoy in the practical application of that power. That framework must guarantee that the practical exercise of that power, consisting in carrying out identity controls, cannot have an effect equivalent to border checks, as evidenced by, in particular, the circumstances listed in the second sentence of Article 21(a) of Regulation No 562/2006.
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73. It was against that background that the Law establishing the Land Berlin transitional system was adopted, which provides — as its title suggests — for a transitional derogation for established civil servants. The allocation of steps or transitional steps to those civil servants was immediate and, following their definitive reclassification under the new Law on the remuneration of Land Berlin civil servants, their pay progression depends exclusively on the criteria specified in that law, that is to say, on professional experience and on performance, which means that age is no longer a factor.
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70. While it is true that the Court of First Instance thus refrained from considering whether the Commission was entitled to disclose in the contested decision information relating to cartels affecting markets outside the Community and also to price-fixing, it must be held that, even on the assumption that the Commission’s disclosure of that information was contrary to its obligation to respect Dalmine’s business secrets, the fact remains that such an irregularity could lead to the annulment of the contested decision only if it had been established that in the absence of that irregularity the decision would have had a different content (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, paragraph 91, and Case C‑338/00 P Volkswagen v Commission [2003] ECR I‑9189, paragraphs 163 and 164). As the findings in the contested decision relating to the cartels affecting the markets outside the Community and also price-fixing were characterised by the appellant as superfluous grounds, it cannot in any event maintain that in the absence of those findings the contested decision would have had an essentially different content.
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164. Next, contrary to what the appellant alleges, the Court of First Instance acted correctly in law in taking the view that the case-law cited in paragraph 283 of the judgment under appeal is applicable in the present case. Apart from some immaterial differences between the present case and those which led to the two judgments cited by the Court of First Instance, those judgments had, in particular, the purpose of specifying the consequences liable to follow, in regard to the legality of a decision taken by the Community authorities, from disclosure, prior to adoption of the decision concerned, of one of the elements of that decision. It was precisely an irregularity of this kind that occurred in this case, as the Court of First Instance confirmed in paragraphs 280 to 282 of the judgment under appeal.
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69. On the other hand, as pointed out by the Advocate General in point 103 of his Opinion, the fact that the activities which correspond to the profits of the CFC could just as well have been carried out by a company established in the territory of the Member State in which the resident company is established does not warrant the conclusion that there is a wholly artificial arrangement.
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39. According to settled case-law, there is a breach of Article 110 TFEU where the amount of tax levied on an imported second-hand vehicle exceeds the residual tax incorporated in the value of similar second-hand vehicles already registered on national territory (Case C‑345/93 Nunes Tadeu [1995] ECR I‑479, paragraph 20; Case C‑393/98 Gomes Valente [2001] ECR I‑1327, paragraph 23; and Case C‑101/00 Tulliasiamies and Siilin [2002] ECR I‑7487, paragraph 55).
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23 In paragraph 15 of its judgment in Nunes Tadeu, the Court held that a rule which restricts the reduction in the amount of the tax charged on new cars to 10%, without having regard to the vehicle's actual depreciation, discriminates against imported second-hand cars. It therefore held it incompatible with Article 95 of the Treaty for a Member State to charge on second-hand cars from another Member State a tax which, being calculated without taking the vehicle's actual depreciation into account, exceeds the residual tax incorporated in the value of similar second-hand motor vehicles already registered in the national territory (Nunes Tadeu, paragraph 20).
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39. Consequently, the setting of a residence criterion such as that used in the main proceedings, based solely on the date on which the application for the benefit is submitted, is not a satisfactory indicator of the degree of attachment of the applicant to the society which is thereby demonstrating its solidarity with him. It follows that this condition of residence fails to comply with the principle of proportionality referred to in paragraphs 33 and 35 above.
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22. The fact that the dividends received by a parent company which enjoy full tax exemption come from subsidiaries that are part of the tax-integrated group to which the parent company concerned also belongs does not amount to an objective difference in the situation of parent companies that would justify the difference in treatment identified (see, to that effect, judgments in Papillon , C‑418/07, EU:C:2008:659, paragraphs 23 to 30; X Holding , C‑337/08, EU:C:2010:89, paragraphs 21 to 24; and SCA Group Holding and Others , C‑39/13 to C‑41/13, EU:C:2014:1758, paragraphs 29 to 31). With regard to legislation such as that at issue in the main proceedings, which, through the neutralisati on of the add-back of the proportion of costs and expenses to the parent company’s profits, provides for dividends received to be fully exempt from tax, the situation of companies belonging to a tax-integrated group is comparable to that of companies not belonging to such a group in so far as, in each case, the parent company bears the costs and expenses related to its shareholding in the subsidiary, and, moreover, the profits made by the subsidiary and from which the dividends distributed are derived are, in principle, liable to be subject to economic double taxation or to a series of charges to tax (see, to that effect, judgments in Haribo Lakritzen Hans Riegel and Österreichische Salinen , C‑436/08 and C‑437/08, EU:C:2011:61, paragraph 113, and Santander Asset Management SGIIC and Others , C‑338/11 to C‑347/11, EU:C:2012:286, paragraph 42).
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22. In that context, it is settled case-law of the Court that the comparability of a Community situation with an internal situation must be examined having regard to the aim pursued by the national provisions at issue (see, to that effect, Case C‑231/05 Oy AA [2007] ECR I‑6373, paragraph 38).
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24 Second, the charges are not passed on to the final consumer in a manner characteristic of VAT. Even on the assumption that an undertaking selling to final consumers will take account, in fixing its price, of the amount of the charge included in its general expenses, not all undertakings have the possibility of thus passing on, or passing on in full, the burden of the tax.
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17. The Court of First Instance was also correct in pointing out, in paragraph 36 of the judgment under appeal, that a decision to have recourse to Article 29(2) of the Staff Regulations made during the course of a recruitment procedure which has been initiated need not necessarily be taken when the vacancy notices are published and need not be published (see Joined Cases 81/74 to 88/74 Marenco and Others v Commission [1975] ECR 1247, paragraphs 21 and 23, Case 289/81 Mavridis v Parliament [1983] ECR 1731, paragraph 23, and Case C-331/87 Exarchos v Parliament [1989] ECR 4185). It was thus entitled to conclude, in paragraph 37 of the judgment under appeal, that the appointing authority could decide to have recourse to the procedure under Article 29(2) of the Staff Regulations.
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23 RECOURSE TO ARTICLE 29 ( 2 ) IS NOT SUBJECT TO ANY CONDITION AS TO PUBLICATION BUT ONLY TO THE CIRCUMSTANCE THAT THE RECRUITMENT IS OF GRADE A 1 OR A 2 OFFICIALS OR TO 'POSTS WHICH REQUIRE SPECIAL QUALIFICATIONS '.
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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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45 While the lack of a contractual link between the transferor and the transferee may point to the absence of a transfer within the meaning of Directive 77/187, it cannot be conclusive in that regard (see, to this effect, Case C-13/95 Süzen v Zehnacker Gebäudereinigung [1997] ECR I-1259, paragraph 11, and Sánchez Hidalgo and Others, cited above, paragraph 22).
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22 Whilst the absence of any contractual link between the transferor and the transferee, or, as in these cases, between the two undertakings successively entrusted with the task of providing a home-help service or the task of maintaining surveillance at a medical supplies depot, may be evidence that no transfer within the meaning of the directive has occurred, it is certainly not conclusive.
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10 BY APPLICATION LODGED AT THE COURT REGISTRY ON 1 OCTOBER 1969 IMPERIAL CHEMICAL INDUSTRIES LTD . HAS BROUGHT AN APPLICATION AGAINST THAT DECISION .
SUBMISSIONS RELATING TO PROCEDURE AND TO FORM
THE SUBMISSIONS CONCERNING THE ADMINISTRATIVE PROCEDURE
( A ) THE COMPLAINT RELATING TO THE SIGNING OF THE " NOTICE OF OBJECTIONS " BY AN OFFICIAL OF THE COMMISSION
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26 Since it thus refers to a measure which is subsequently to implement the provisions intended to transpose Article 10 of the directive, the decree of 6 May 1995 cannot be regarded as effecting a complete and accurate transposition of that directive (see, to that effect, Case C-263/96 Commission v Belgium [1997] ECR I-7453, paragraph 26).
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26 Although it is true, as the Kingdom of Belgium has pointed out, that a law was adopted on 25 March 1996 with that intention, it should be observed that, since it contains no substantive provision transposing the directive but merely empowers an authority subsequently to adopt the requisite substantive provisions, that law cannot be regarded as effecting a complete and accurate transposition of the directive.
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17 Where, without initiating the procedure under Article 93(2), the Commission finds on the basis of Article 93(3) that an aid is compatible with the common market, the persons intended to benefit from those procedural guarantees may secure compliance therewith only if they are able to challenge that decision by the Commission before the Court.
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37. In that regard, it is clear that, in accordance with the settled case-law of the Court, the principle of equal treatment entails the principle of transparency. Those principles, which constitute the basis of the Community directives on public procurement, mean, in particular, that tenderers, even potential tenderers, must generally be on an equal footing and have equality of opportunity in formulating the terms of their applications to take part and their tenders (see, to that effect, Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraph 93, and Case C‑213/07 Michaniki [2008] ECR I‑0000, paragraphs 44 and 45 and the case-law cited).
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45. Those principles, which mean, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority (see, to that effect, Case C‑19/00 SIAC Construction [2001] ECR I-7725, paragraph 34, and Case C-448/01 EVN and Wienstrom [2003] ECR I‑14527, paragraph 47), constitute the basis of the directives on procedures for the award of public contracts (see, inter alia, Universale-Bau and Others , paragraph 91, and Case C‑315/01 GAT [2003] ECR I‑6351, paragraph 73), and the duty of contracting authorities to ensure that they are observed lies at the very heart of those directives (see, to that effect, Case C‑513/99 Concordia Bus Finland [2002] ECR I‑7213, paragraph 81, and Joined Cases C‑21/03 and C-34/03 Fabricom [2005] ECR I‑1559, paragraph 26).
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17. Since the wording of the question referred relates to both Article 17(6) of the Sixth Directive and Article 176 of Directive 2006/112, it is necessary to point out, first of all, that those two provisions are essentially identical.
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78. As regards the assessment by the Court of First Instance of applications made by a party for measures of organisation of the procedure or enquiry, it must be pointed out that the Court of First Instance is the sole judge of any need to supplement the information available to it in respect of the cases before it (see, for example, Case C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I‑5281, paragraph 19; Case C‑136/02 P Mag Instrument v OHIM [2004] ECR I‑9165, paragraph 76; and Case C‑260/05 P Sniace v Commission [2007] ECR I‑0000, paragraph 77). Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the inaccuracy of the findings of the Court of First Instance is apparent from the documents in the case-file ( Ismeri Europa v Court of Auditors , paragraph 19, and Joined Cases C‑24/01 P and C‑25/01 P Glencore and Compagnie Continentale v Commission [2002] ECR I‑10119, paragraphs 77 and 78).
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19 In that connection the Court of First Instance is the sole judge of any need for the information available to it concerning the cases before it to be supplemented. Whether or not the evidence before it is convincing is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where the clear sense of that evidence has been distorted or the substantive inaccuracy of the Court of First Instance's findings is apparent from the documents in the case-file (judgment in Case C-119/97 P Ufex and Others v Commission [1999] ECR I-1341, paragraph 66, and order in Case C-437/98 P Infrisa v Commission [1999] ECR I-7145, paragraph 34).
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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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65. Whilst individuals are entitled to effective judicial protection of the rights they derive from the Community legal order ( Unión de Pequeños Agricultores v Council , paragraph 39; Commission v Jégo-Quéré , paragraph 29; and C‑15/06 P Regione Siciliana v Commission , paragraph 39), invoking the right to such protection cannot call into question the conditions laid down in Article 230 EC.
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29. It should be noted that individuals are entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States. That right has also been enshrined in Articles 6 and 13 of the ECHR (see, in particular, Case 222/84 Johnston [1986] ECR 1651, paragraph 18, and Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 39).
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114
It follows that tobacco products containing a characterising flavour, whether that is menthol or another flavouring, have certain similar, objective characteristics and similar effects as regards initiating tobacco consumption and sustaining tobacco use.
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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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58 Under Article 4(1) and (2) of the Agreement, the dialogue between management and labour at Community level may lead, if they so desire, to contractual relations, including agreements, which will be implemented either in accordance with the procedures and practices specific to management and labour and the Member States, or, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission.
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47. In the second place, on the assumption that the contract in question in the proceedings before the national court is a services concession, it should be noted that, if, at the material time, service concession contracts were not governed by any of the directives by which the EU legislature regulated public procurement, the public authorities which concluded such contracts were nevertheless required to comply with the fundamental rules of the FEU Treaty, in particular the principles of equal treatment and transparency (see, to that effect, judgments in Parking Brixen , C‑458/03, EU:C:2005:605, paragraphs 46 to 49, and Wall , C‑91/08, EU:C:2010:182, paragraph 33), where the services concession concerned has a certain cross-border interest in the light, inter alia, of its value and the place where it is carried out (see, to that effect, judgment in Ordine degli Ingegneri della Provincia di Lecce and Others , C‑159/11, EU:C:2012:187, paragraph 23 and the case-law cited).
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28. Nevertheless, it is settled case-law that any individual has the right to claim damages for loss caused to him by conduct which is liable to restrict or distort competition (see Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraphs 24 and 26, and Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraphs 59 and 61).
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61. It follows that any individual can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 81 EC.
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18. In paragraph 41 of Case C-210/00 Käserei Champignon Hofmeister , the Court held that the sanction constitutes a specific administrative instrument forming an integral part of the scheme of aid which is intended to ensure the sound financial management of Community public funds and, in paragraph 44 of that judgment, that it cannot be said to be of a criminal nature.
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60
It should be added that Article 27(2) of the directive makes clear that previous criminal convictions cannot in themselves constitute grounds for taking public policy or public security measures, that the personal conduct of the individual concerned must represent a genuine and present threat affecting one of the fundamental interests of society or of the Member State concerned, and that justifications that are isolated from the particulars of the case or that rely on considerations of general prevention cannot be accepted (see, to this effect, judgments of 10 July 2008, Jipa, C‑33/07, EU:C:2008:396, paragraph 23 and 24, and of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 48).
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48. It should be added that Article 27(2) of Directive 2004/38 emphasises that the conduct of the person concerned must represent a genuine and present threat to a fundamental interest of society or of the Member State concerned, that previous criminal convictions cannot in themselves constitute grounds for taking public policy or public security measures, and that justifications that are isolated from the particulars of the case or that rely on considerations of general prevention cannot be accepted.
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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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57. So far as concerns judicial review of compliance with this principle, bearing in mind the wide discretion enjoyed by the Community legislature in matters concerning the common agricultural policy, the legality of a measure adopted in that field can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 14; Joined Cases C-133/93, C‑300/93 and C-362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraph 42; Jippes , paragraph 82; and IATA and ELFAA , paragraph 80).
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14 However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty . Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue ( see in particular the judgment in Case 265/87 Schraeder [1989] ECR 2237, paragraphs 21 and 22 ).
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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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103. Thirdly, as regards the alleged possibility of having recourse to a measure more appropriate and less restrictive than that provided for by the contested regulation, in order to attain the objectives pursued by the Commission, such as the imposition of a minimum sale price, it must be observed that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 13; Joined Cases C‑133/93, C-300/93 and C-362/93 Crispoltoni and Others [1994] ECR I-4863, paragraph 41; Antillean Rice Mills and Others v Commission , cited above, paragraph 52; and Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81).
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13 The Court has consistently held that the principle of proportionality is one of the general principles of Community law . By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued .
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128. In paragraph 196 of the contested decision, the Commission added, in its analysis relating to the commitment of State resources, ‘that a potential additional burden on the State’s resources was created by the announcement of the provision of the shareholder loan coupled with the fulfilment of the preconditions for such provision …, by the impression given to the market that the loan had actually been provided … and, lastly, by the dispatch to [FT] of the loan contract initialled and signed by ERAP’.
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47
For that purpose, it must be recalled that Articles 49 and 56 TFEU preclude any national measure which, even if it applies without discrimination as to nationality, prohibits, impedes or renders less attractive the freedom of establishment and/or the freedom to provide services (judgments of 27 October 2005, Contse and Others, C‑234/03, EU:C:2005:644, paragraph 25; of 23 December 2009, Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraph 41; and of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraph 37).
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41. Second, it should be noted that, in accordance with the settled case-law of the Court, Articles 43 EC and 49 EC preclude any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to prohibit, impede or render less attractive the exercise by Community nationals of the freedom of establishment and the freedom to provide services guaranteed by those provisions of the Treaty (see, to that effect, Case C‑299/02 Commission v Netherlands [2004] ECR I‑9761, paragraph 15, and Case C-433/04 Commission v Belgium [2006] ECR I‑10653, paragraph 28).
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48 It is therefore not possible to accept an interpretation of Article 5(3) of the Brussels Convention according to which application of that provision is conditional on the actual occurrence of damage. Furthermore, it would be inconsistent to require that an action to prevent behaviour considered to be unlawful, such as that brought in the main proceedings, whose principal aim is precisely to prevent damage, may be brought only after that damage has occurred.
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26 The Court has also held that that first paragraph of Article 7 of Decision No 1/80 is designed to promote family unity in the host Member State, in order to facilitate the employment and residence of Turkish workers duly registered as belonging to the labour force of the Member State concerned, by first allowing family members who have been authorised to join the migrant worker to be present with him and by then consolidating their position with the right to work as employed persons in that State (Kadiman, paragraphs 34, 35 and 36).
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35 Accordingly, it provides, for the initial stage, that family members of a Turkish worker already duly registered as belonging to the labour force of a Member State may be authorized to join him and take up residence there so as to enable the family to be together. In order to deepen the integration of a migrant Turkish worker's family unit in the host Member State, it also grants those family members the right, after a specified time, to take up employment in that State.
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40
A national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, first, judgment in Simmenthal, 106/77, EU:C:1978:49, paragraphs 21 and 24, and, most recently, judgment in A, C‑112/13, EU:C:2014:2195, paragraph 36 and the case-law cited).
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50
Accordingly, the procedure is necessarily vitiated, regardless of any possible detrimental consequences for the appellants that could result from that infringement (see, to that effect, judgments of 6 November 2012, Commission v Éditions Odile Jacob, C‑553/10 P and C‑554/10 P, EU:C:2012:682, paragraphs 46 to 52, and of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 36).
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50. It must be recalled that paragraph 15 of its commitments required Lagardère to appoint a trustee who, among other conditions, was ‘to be independent of Lagardère and Éditis’.
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62. Secondly, so far as concerns the alleged material damage, it must be pointed out that the appellant did not particularise in her application the extent of the damage allegedly suffered but did so only in her reply. As a result, she did not comply with the requirements of Article 44(1) of the Rules of Procedure of the Court of First Instance. The Court of Justice has, admittedly, accepted that, in certain special cases, particularly where the alleged loss is difficult to calculate, it is not absolutely necessary to particularise its exact extent in the application nor to calculate the amount of the compensation claimed (see, particularly, Case 74/74 CNTA v Commission [1975] ECR 533 and Case 90/78 Granaria v Council and Commission [1979] ECR 1081, 1090). However, in these proceedings, the appellant has not established, nor even claimed, the existence of special circumstances justifying the omission to calculate, in the application, that head of loss. Therefore, the claim for compensation for the material damage is inadmissible and must be dismissed.
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15 As far as the Commission is concerned, the Court has pointed out, in its judgment in Case 78/76 Steinike & Weinlig v Germany [1977] ECR 595, paragraph 9, that the intention of the Treaty, in providing through Article 93 for aid to be kept under constant review and supervised by the Commission, is for a finding that an aid may be incompatible with the common market to be made, subject to review by the Court, in an appropriate procedure which it is the Commission' s responsibility to set in motion.
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9 IN JUDGING IN THESE CASES WHETHER STATE AID IS COMPATIBLE WITH THE COMMON MARKET COMPLEX ECONOMIC FACTORS SUBJECT TO RAPID CHANGE MUST BE TAKEN INTO ACCOUNT AND ASSESSED . ARTICLE 93 OF THE TREATY THEREFORE PROVIDES FOR A SPECIAL PROCEDURE WHEREBY THE COMMISSION SHALL KEEP AID UNDER CONSTANT REVIEW . WITH REGARD TO AID EXISTING BEFORE THE TREATY ENTERED INTO FORCE ARTICLE 93 ( 2 ) PROVIDES THAT THE COMMISSION MAY DECIDE THAT THE STATE CONCERNED SHALL ABOLISH OR ALTER THE AID WITHIN A PERIOD OF TIME TO BE DETERMINED BY THE COMMISSION . WITH REGARD TO NEW AID WHICH THE MEMBER STATES INTEND TO INTRODUCE A SPECIAL PROCEDURE IS PROVIDED AND IF IT IS NOT FOLLOWED THE AID IS NOT REGARDED AS BEING REGULARLY INTRODUCED . THE CONCLUSION TO BE DRAWN FROM ALL THESE CONSIDERATIONS IS THAT THE INTENTION OF THE TREATY , IN PROVIDING THROUGH ARTICLE 93 FOR AID TO BE KEPT UNDER CONSTANT REVIEW AND SUPERVISED BY THE COMMISSION , IS THAT THE FINDING THAT AN AID MAY BE INCOMPATIBLE WITH THE COMMON MARKET IS TO BE DETERMINED , SUBJECT TO REVIEW BY THE COURT , BY MEANS OF AN APPROPRIATE PROCEDURE WHICH IT IS THE COMMISSION ' S RESPONSIBLILITY TO SET IN MOTION .
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25. En conséquence, l’article 8 de la directive 2001/37, sans préjudice des dispositions de l’article 151 de l’acte d’adhésion de la République d’Autriche, de la République de Finlande et du Royaume de Suède, interdit la mise sur le marché du «snus» non seulement sous la forme de sachets-portions ou de sachets poreux, mais également sous d’autres formes, dans l’ensemble des États membres.
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35 Furthermore, as the Court has ruled in connection with Article 92(1) of the EC Treaty, the expression `aid', for the purposes of Article 4(c) of the ECSC Treaty, necessarily implies advantages granted directly or indirectly through State resources or constituting an additional charge for the State or for bodies designated or established by the State for that purpose (see Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele [1978] ECR 25, paragraphs 23 to 25; Joined Cases 213/81 to 215/81 Norddeutsches Vieh- und Fleischkontor Will and Others v BALM [1982] ECR 3583, paragraph 22; Joined Cases C-72/91 and C-73/91 Sloman Neptun v Bodo Ziesemer [1993] ECR I-887, paragraphs 19 and 21; Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185, paragraph 16; and Joined Cases C-52/97 to C-54/97 Viscido and Others v Ente Poste Italiane [1998] ECR I-2629, paragraph 13).
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22 THE QUESTION WHETHER THE SYSTEM IN QUESTION IS COMPATIBLE WITH THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL IS BEST EXAMINED IN CONNECTION WITH THE FOURTH QUESTION SUBMITTED BY THE NATIONAL COURT . AS REGARDS THE ALLEGED BREACH OF THE PROHIBITION OF STATE AIDS , IT MUST BE NOTED THAT ARTICLES 92 TO 94 OF THE EEC TREATY COVER ' ' AID GRANTED BY A MEMBER STATE OR THROUGH STATE RESOURCES IN ANY FORM WHATSOEVER ' ' . THE FINANCIAL ADVANTAGE WHICH TRADERS DERIVE FROM RECEIVING A SHARE IN THE QUOTA IS NOT GRANTED THROUGH STATE RESOURCES BUT THROUGH COMMUNITY RESOURCES BECAUSE THE LEVY WHICH IS WAIVED IS PART OF COMMUNITY RESOURCES . ALTHOUGH THE TERM ' ' AID GRANTED THROUGH STATE RESOURCES ' ' IS WIDER THAN THE TERM ' ' STATE AID ' ' , THE FIRST TERM STILL PRESUPPOSES THAT THE RESOURCES FROM WHICH THE AID IS GRANTED COME FROM THE MEMBER STATE .
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8 FOR THESE REASONS THE PLEA IS INADMISSIBLE .
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25. In that regard, it follows from the Court’s case-law that the tax treatment of dividends may fall within the scope of Article 49 TFEU on freedom of establishment and Article 63 TFEU on the free movement of capital and, as regards the question whether national legislation falls within the scope of one or other of the freedoms of movement, the purpose of the legislation concerned must be taken into consideration (see, to that effect, Case C‑35/11 Test Claimants in the FII Group Litigation [2012] ECR, paragraphs 89 and 90 and case-law cited).
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89. The tax treatment of dividends may fall within Article 49 TFEU on freedom of establishment and Article 63 TFEU on the free movement of capital ( Haribo Lakritzen Hans Riegel and Österreichische Salinen , paragraph 33, and Accor , paragraph 30).
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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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48. It is clear from the case-law of the Court that the latter is required to observe that principle since it constitutes a customary rule of international law which, as such, is binding upon the European Union institutions and forms part of its legal order (see, to that effect, Brita , paragraphs 42 to 44).
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44. Among the relevant rules that may be relied on in the context of the relations between the parties to the EC-Israel Association Agreement is the general international law principle of the relative effect of treaties, according to which treaties do not impose any obligations, or confer any rights, on third States (‘ pacta tertiis nec nocent nec prosunt ’) . That principle of general international law finds particular expression in Article 34 of the Vienna Convention, under which a treaty does not create either obligations or rights for a third State without its consent.
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13 While, in a case of sickness, there is a risk that the recovery of the person concerned will be seriously impaired by the journey, a worker suffering from invalidity cannot be presumed to run that risk. Fitness to travel must thus be assessed on a case-by-case basis.
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50. As regards justification based on the aim of preventing tax avoidance, referred to by the national court in its question, it should be noted that Article 167a of the CGI is not specifically designed to exclude from a tax advantage purely artificial arrangements aimed at circumventing French tax law, but is aimed generally at any situation in which a taxpayer with substantial holdings in a company subject to corporation tax transfers his tax residence outside France for any reason whatever (see, to that effect, ICI , paragraph 26, and X and Y , paragraph 61).
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61 The provision at issue here is not specifically designed to exclude from a tax advantage purely artificial schemes designed to circumvent Swedish tax law, but concerns, generally, any situation in which, for whatever reason, the transfer at undervalue is to a company established under the legislation of another Member State or a branch set up in the Kingdom of Sweden by such a company.
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41
Last, the framework required must be sufficiently clear and precise to enable the need for the checks and the checks actually authorised themselves to be checked (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 76).
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65 The Court has consistently held that the requirements flowing from the protection of general principles recognised in the Community legal order, including the principle of the protection of legitimate expectations, are also binding on Member States when they implement Community rules, and that consequently they are bound, as far as possible, to apply the rules in accordance with those requirements. Where national rules fall within the scope of Community law and reference is made to the Court for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the general principles the observance of which is ensured by the Court (see, on fundamental rights falling within those general principles, Case C-2/92 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Bostock [1994] ECR I-955, paragraph 16).
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16 However, the Court pointed out earlier in its judgment in Wachauf (paragraph 19) that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules and that the Member States must therefore, as far as possible, apply those rules in accordance with those requirements. In that connection the Court held in its judgment in Case C-260/89 ERT v DEP [1991] ECR I-2925, at paragraph 42, that where such national rules fall within the scope of Community law and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights whose observance the Court ensures.
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84. Ladite réglementation, dans la mesure où elle s’applique, en Région flamande et dans les autres parties du territoire belge, à des spécimens nés et élevés en captivité en provenance d’autres États membres et relevant d’espèces qui ne sont pas mentionnées à l’annexe A du règlement n° 338/97, est de nature à entraver le commerce intracommunautaire en violation de l’article 28 CE, en ce qu’elle contient une interdiction de principe de l’importation, de la détention et de la vente desdits spécimens, bien qu’ils aient été légalement mis sur le marché dans un autre État membre (voir en ce sens, notamment, arrêts précités Tridon, point 49, ainsi que Nationale Raad van Dierenkwekers en Liefhebbers et Andibel, points 20 et 21).
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