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31. Moreover, the Court has ruled that, since registration of a mark is always sought in respect of the goods or services described in the application for registration, the question whether or not any of the grounds for refusal set out in Article 3 of the Directive apply to the mark must be assessed specifically by reference to those goods or services ( Koninklijke KPN Nederland , paragraph 33).
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33. Moreover, since registration of a mark is always sought in respect of the goods or services described in the application for registration, the question whether or not any of the grounds for refusal set out in Article 3 of the Directive apply to the mark must be assessed specifically by reference to those goods or services.
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35. Moreover, neither the method of treatment reserved for a substance nor the use to which that substance is put determines conclusively whether or not it is to be classified as waste (see ARCO Chemie Nederland and Others , paragraph 64, and Case C‑176/05 KVZ retec [2007] ECR I‑1721, paragraph 52).
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16
In accordance with Article 120(c) of the Rules of Procedure and the related case-law, an application initiating proceedings must state the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. That statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of fact and of law on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order to be set out unambiguously so that the Court does not rule ultra petita or fail to rule on a complaint (judgments of 11 July 2013, Commission v Czech Republic, C‑545/10, EU:C:2013:509, paragraph 108 and the case-law cited, and of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraph 141).
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141
Under Article 120(c) of the Court’s Rules of Procedure and the case-law relating thereto, an application initiating proceedings must state the subject-matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. That statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of fact and of law on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order to be set out unambiguously so that the Court does not rule ultra petita or fail to rule on a complaint (see, inter alia, judgment in Parliament v Council, C‑317/13 and C‑679/13, EU:C:2015:223, paragraph 17 and the case-law cited).
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15. Selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé. Les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêt du 4 novembre 2008, Commission/Luxembourg, C‑95/08, point 24).
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23. Moreover, the Court has already held, in the context of a refund paid to an exporter, that the release of a security does not discharge the exporter from obligations imposed on it under Community legislation (C-155/89 Philipp Brothers [1990] ECR I-3265, paragraphs 13 to 16). This principle also applies to the final payment of an export refund to an exporter who has not produced sufficient evidence that the conditions for the right to the refund have been fulfilled.
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16 The answer to the first two questions must therefore be that the erroneous release by the national intervention agency of the security provided for in Article 25 of Commission Regulation No 2730/79 of 29 November 1979 laying down common detailed rules for the application of the system of export refunds on agricultural products does not have the effect of discharging the exporter from his obligations . In its decision on whether to grant an extension of time for the submission of the documents required under the regulation, the intervention agency must take into consideration the consequences which its error may have had on the exporter' s conduct .
The period prescribed for the submission of a request for an extension of time ( Question 3 )
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22. En outre, il y a lieu de rappeler que les véhicules automobiles présents sur le marché dans un État membre sont des «produits nationaux» de celui-ci, au sens de l’article 110 TFUE (voir arrêt Tatu, précité, point 55).
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122. Moreover, according to settled case‑law, the principle of proportionality is one of the general principles of European Union law and requires that measures implemented through provisions of European Union law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (see, inter alia, Case C‑176/09 Luxembourg v Parliament and Council [2011] ECR I‑3727, paragraph 61 and the judgment of 13 March 2012 in Case C‑380/09 P Melli Bank v Council , paragraph 52 and the case‑law cited).
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52. According to settled case-law, the principle of proportionality is one of the general principles of European Union law and requires that measures implemented through provisions of European Union law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I‑11453, paragraph 122; Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 68; and Case C‑58/08 Vodafone and Others [2010] ECR I‑4999, paragraph 51).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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40. In matters relating to tort and delict and quasi-delict, the courts for the place where the harmful event occurred or may occur are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence (judgment in Melzer , C‑228/11, EU:C:2013:305, paragraph 27).
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27. In matters relating to tort, delict and quasi-delict, the courts for the place where the harmful event occurred are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence (see, to that effect, Case C-167/00 Henkel [2002] ECR I-8111, paragraph 46, and Zuid‑Chemie , paragraph 24).
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51. The system established by the framework decision, as evidenced inter alia by the provisions of those articles, makes it possible for the Member States to allow the competent judicial authorities, in specific situations, to decide that a sentence must be executed on the territory of the executing Member State.
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18. 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 Case C‑287/00 Commission v Germany [2002] ECR I‑5811, paragraph 43, and Case C‑8/01 Taksatorringen [2003] ECR I‑13711, paragraph 36). Nevertheless, the interpretation of those terms must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT (see Case C‑45/01 Dornier [2003] ECR I‑12911, paragraph 42; Case C‑498/03 Kingscrest Associates and Montecello [2005] ECR I‑4427, paragraph 29; and Case C‑106/05 L.u.P. [2006] ECR I‑5123, paragraph 24). Thus, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 13 should be construed in such a way as to deprive the exemptions of their intended effect (see, to that effect, Case C‑284/03 Temco Europe [2004] ECR I‑11237, paragraph 17, and also, in relation to university education, Commission v Germany , paragraph 47).
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17. Secondly, the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, inter alia, Commission v Ireland , paragraph 52; Case C-150/99 Stockholm Lindöpark [2001] ECR I-493, paragraph 25; and Sinclair Collis , paragraph 23). As the Advocate General rightly states at point 37 of his Opinion, the requirement of strict interpretation does not mean, however, that the terms used to specify exemptions should be construed in such a way as to deprive the exemptions of their intended effect.
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67. La compétence de pleine juridiction conférée au juge communautaire à l’article 91, paragraphe 1, du statut l’investit de la mission de donner aux litiges dont il est saisi une solution complète, c’est-à-dire de statuer sur l’ensemble des droits et des obligations de l’agent, sauf à renvoyer à l’institution en cause, et sous son contrôle, l’exécution de telle partie de l’arrêt dans les conditions précises qu’il fixe.
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45 UNDER ARTICLE 4 OF THAT REGULATION , MEMBER STATES WERE UNDER A DUTY TO TAKE THE MEASURES NECESSARY TO ENSURE THAT THOSE PROVISIONS WERE COMPLIED WITH . THE UNITED KINGDOM HAS RAISED THE QUESTION WHETHER THE DUTY TO CONSULT THE COMMISSION AND TO SEEK ITS APPROVAL APPLIES TO MEASURES OF THAT KIND . AS THE COURT HAS STATED IN PARAGRAPH 11 OF THE DECISION IN ITS JUDGMENT OF 4 OCTOBER 1979 IN CASE 141/78 , FRENCH REPUBLIC V UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND , THAT DUTY IS GENERAL AND APPLIES TO ANY MEASURES OF CONSERVATION EMANATING FROM THE MEMBER STATES AND NOT FROM THE COMMUNITY AUTHORITIES . CONSEQUENTLY , THE MEASURES ADOPTED BY A MEMBER STATE IN IMPLEMENTATION OF A COMMUNITY REGULATION ARE NOT EXEMPTED FROM THE DUTY OF CONSULTATION LAID DOWN IN ANNEX VI TO THE HAGUE RESOLUTION AS WELL AS FROM THE DUTY OF NOTIFICATION LAID DOWN IN ARTICLES 2 AND 3 OF REGULATION NO 101/76 . THE REASON FOR THIS TWOFOLD DUTY IS PARTICULARLY EVIDENT IN VIEW OF THE MEASURES ADOPTED BY THE UNITED KINGDOM , WHICH CONSISTED IN BRINGING INTO FORCE A LICENSING SYSTEM THE APPLICATION OF WHICH WAS ENTIRELY AT THE DISCRETION OF THE UNITED KINGDOM AND ISLE OF MAN AUTHORITIES .
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11 ANNEX VI TO THE HAGUE RESOLUTION IN THE WORDS OF WHICH ' ' THE MEMBER STATES WILL NOT TAKE ANY UNILATERAL MEASURES IN RESPECT OF THE CONSERVATION OF RESOURCES ' ' , EXCEPT IN CERTAIN CIRCUMSTANCES AND WITH DUE OBSERVANCE OF THE REQUIREMENTS SET OUT ABOVE , MUST BE UNDERSTOOD AS REFERRING TO ANY MEASURES OF CONSERVATION EMANATING FROM THE MEMBER STATES AND NOT FROM THE COMMUNITY AUTHORITIES . THE DUTY OF CONSULTATION ARISING UNDER THAT RESOLUTION THUS COVERS ALSO MEASURES ADOPTED BY A MEMBER STATE TO COMPLY WITH ONE OF ITS INTERNATIONAL OBLIGATIONS IN THIS MATTER . SUCH CONSULTATION WAS ALL THE MORE NECESSARY IN THIS CASE SINCE IT IS COMMON GROUND , AS HAS BEEN EMPHASIZED BY THE FRENCH GOVERNMENT AND THE COMMISSION AND ACCEPTED BY THE GOVERNMENT OF THE UNITED KINGDOM ITSELF , THAT THE ORDER IN QUESTION , ALTHOUGH CARRYING OUT CERTAIN RECOMMENDATIONS OF THE NORTH-EAST ATLANTIC FISHERIES CONVENTION , NEVERTHELESS IN SOME RESPECTS GOES BEYOND THE REQUIREMENTS FLOWING FROM THOSE RECOMMENDATIONS .
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140. It is not clear that merely regulating the use of the descriptions referred to in Article 7, as proposed by the claimants in the main proceedings and by the German, Greek and Luxembourg Governments, or saying on the tobacco products' packaging, as proposed by Japan Tobacco, that the amounts of noxious substances inhaled depend also on the user's smoking behaviour would have ensured that consumers received objective information, having regard to the fact that those descriptions are in any event likely, by their very nature, to encourage smoking.
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45 It is important at the outset to note that, although Article 31 of the Staff Regulations does not expressly mention the term professional experience, it is nevertheless evident from settled case-law that the professional experience of a person recruited as an official is one of the factors which the appointing authority may take into consideration in order to determine his classification in grade, particularly in connection with the application of Article 31(2) of the Staff Regulations (see, to that effect, Case C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, paragraph 15, and Case C-155/98 P Alexopoulou v Commission [1999] ECR I-4069, paragraph 13).
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15 Article 31(2) does not contain any criteria regarding the application of the exception to the rule laid down in Article 31(1). However, it follows from a consistent line of cases decided by the Court that the appointing authority has a wide discretion in the matter (see, for example, Michael v Commission and De Szy-Tarisse and Feyaerts v Commission, cited above, and Case 219/84 Powell v Commission [1987] ECR 339) and, in particular, that under the provision in question, as with the second paragraph of Article 32 of the Staff Regulations, the appointing authority also has that discretion in assessing the practical experience of the persons concerned for the purposes of their classification in grade (see the judgments in Michael v Commission, paragraph 19, and De Szy-Tarisse and Feyaerts v Commission, paragraph 26).
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28. Nevertheless, as expressly indicated in the 12th recital in its preamble, the Directive carried out only a partial and minimum harmonisation of national legislation concerning unfair terms, while recognising that Member States have the option of affording consumers a higher level of protection than that for which the Directive provides.
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26 In that connection, it should be borne in mind that in De Peijper the Court held, at paragraphs 21 and 36, in the context of Articles 30 and 36 of the EEC Treaty, that, if the public health authorities of the importing Member State already have in their possession, as a result of a previous importation having led to the grant by those authorities of marketing authorisation, all the particulars for the purpose of checking that a medicinal preparation is effective and not harmful, it is clearly unnecessary, in order to protect the health and life of humans, for the said authorities to require a second trader who has imported a medicinal preparation which is in every respect the same or displays differences which have no therapeutic effect, to produce the abovementioned particulars to them again.
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21 ( A ) WITH REGARD TO THE DOCUMENTS RELATING TO THE MEDICINAL PREPARATION IN GENERAL , IF THE PUBLIC HEALTH AUTHORITIES OF THE IMPORTING MEMBER STATE ALREADY HAVE IN THEIR POSSESSION , AS A RESULT OF IMPORTATION ON A PREVIOUS OCCASION , ALL THE PHARMACEUTICAL PARTICULARS RELATING TO THE MEDICINAL PREPARATION IN QUESTION AND CONSIDERED TO BE ABSOLUTELY NECESSARY FOR THE PURPOSE OF CHECKING THAT THE MEDICINAL PREPARATION IS EFFECTIVE AND NOT HARMFUL , IT IS CLEARLY UNNECESSARY , IN ORDER TO PROTECT THE HEALTH AND LIFE OF HUMANS , FOR THE SAID AUTHORITIES TO REQUIRE A SECOND TRADER WHO HAS IMPORTED A MEDICINAL PREPARATION WHICH IS IN EVERY RESPECT THE SAME , TO PRODUCE THE ABOVE-MENTIONED PARTICULARS TO THEM AGAIN .
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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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60 Furthermore, the Court of First Instance, in order to reject the complaints concerning breach of the provisions relating to the procedure for adoption of Regulation No 404/93, reiterated, at paragraphs 77 and 78 of the contested judgment, the grounds appearing at paragraphs 27 to 43 of the judgment in Case C-280/93 Germany v Council, and it is apparent from those paragraphs that they were in response solely to the argument that there had been a breach of the Commission's right of initiative, a failure to give reasons and lack of further consultation of the Parliament.
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29 The Federal Republic of Germany argues secondly that the Regulation is vitiated by a defective statement of reasons, in that it refers only to the first proposal from the Commission.
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54. There is therefore no need to examine the Commission’s argument that the framework decision should in any event be annulled in part in so far as Articles 5(2), 6 and 7 leave the Member States free also to provide for penalties other than criminal penalties, even to choose between criminal penalties and other penalties, matters allegedly falling undeniably within the Community’s competence.
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36. Second, the alleged clarity of the answers to the questions referred in no way prevents a national court from making a reference for a preliminary ruling to this Court and does not have the effect of depriving this Court of jurisdiction to rule on such questions (see, to that effect, Joined Cases C‑428/06 to C‑434/06 UGT-Rioja and Others [2008] ECR I‑6747, paragraphs 42 and 43 and case-law cited).
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43. However, those circumstances in no way prevent a national court from making a reference for a preliminary ruling to this Court (see, to that effect, Cilfit and Others , paragraph 15) and do not have the effect of depriving this Court of jurisdiction to rule on such a question.
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13 . ATTENDU QUE L ' ARTICLE 7 DU TRAITE C.E.E . INTERDIT A CHAQUE ETAT MEMBRE D ' APPLIQUER DIFFEREMMENT SON DROIT DES ENTENTES EN RAISON DE LA NATIONALITE DES INTERESSES ;
QUE , CEPENDANT , L ' ARTICLE 7 NE VISE PAS LES EVENTUELLES DISPARITES DE TRAITEMENT ET LES DISTORSIONS QUI PEUVENT RESULTER , POUR LES PERSONNES ET ENTREPRISES SOUMISES A LA JURIDICTION DE LA COMMUNAUTE , DES DIVERGENCES EXISTANT ENTRE LES LEGISLATIONS DES DIFFERENTS ETATS MEMBRES , DES LORS QUE CELLES-CI AFFECTENT TOUTES PERSONNES TOMBANT SOUS LEUR APPLICATION , SELON DES CRITERES OBJECTIFS ET SANS EGARD A LEUR NATIONALITE ;
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13 With regard to the safeguarding of public health, the Court has held (see in particular Muller, at paragraph 26, and Bellon, at paragraph 17) that the existence of a risk arising from the use of an additive must be assessed in the light of international scientific research, in particular the work of the Scientific Committee for Food, and the eating habits in the Member State concerned.
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26 POUR CES RAISONS , IL Y A LIEU DE REPONDRE A LA SECONDE QUESTION QUE LES ARTICLES 30 A 36 DU TRAITE NE S ' OPPOSENT PAS A CE QU ' UN ETAT MEMBRE INTERDISE LA COMMERCIALISATION DE DENREES ALIMENTAIRES , IMPORTEES D ' AUTRES ETATS MEMBRES OU ELLES SONT LEGALEMENT COMMERCIALISEES , AUXQUELLES UNE DES SUBSTANCES ENUMEREES A L ' ANNEXE I DE LA DIRECTIVE 74/329 , DU 18 JUIN 1974 , A ETE AJOUTEE , POURVU QUE LA COMMERCIALISATION SOIT AUTORISEE , SELON UNE PROCEDURE FACILEMENT ACCESSIBLE AUX OPERATEURS ECONOMIQUES , LORSQUE L ' ADJONCTION DE LA SUBSTANCE EN QUESTION REPOND A UN BESOIN REEL ET QU ' ELLE NE PRESENTE PAS UN RISQUE POUR LA SANTE PUBLIQUE . IL APPARTIENT AUX AUTORITES NATIONALES COMPETENTES DE DEMONTRER DANS CHAQUE CAS , A LA LUMIERE DES HABITUDES ALIMENTAIRES NATIONALES ET COMPTE TENU DES RESULTATS DE LA RECHERCHE SCIENTIFIQUE INTERNATIONALE , QUE LEUR REGLEMENTATION EST NECESSAIRE POUR PROTEGER EFFECTIVEMENT LES INTERETS VISES A L ' ARTICLE 36 DU TRAITE .
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69. Any other approach would risk undermining the efficiency of the EU trade-defence measures each time the EU institutions are faced with non-cooperation in the context of an investigation seeking to establish whether there has been circumvention (judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 37).
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9 It has consistently been held that mere administrative practices, which by their nature are alterable at will by the administration and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State's obligations under Article 189 of the EC Treaty (see, inter alia, Case C-242/94 Commission v Spain [1995] ECR I-3031, paragraph 6).
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6 It has, furthermore, consistently been held that mere administrative practices, which by their nature are alterable at will by the administration and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of a Member State' s obligations under Article 189 of the Treaty (see Case C-381/92 Commission v Ireland [1994] ECR I-215, paragraph 7).
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113. In the light of those objectives, clause 8(3) of the Framework Agreement cannot be interpreted restrictively.
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21. It must first be stated that that question bears a direct relation to the facts submitted to the national court and is objectively required in order to resolve the dispute in the main proceedings (see, to that effect, Case C‑18/93 Corsica Ferries [1994] ECR I-1783, paragraph 14, and Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 34). The Commission’s contention that the first question is irrelevant must therefore be rejected as the Court has jurisdiction to rule on that question.
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34. In the context of that procedure for making a reference, the national court, which alone has direct knowledge of the facts of the case, is in the best position to assess, with full knowledge of the matter before it, the need for a preliminary ruling to enable it to give judgment (Case C-83/91 Meilicke [1992] ECR I-4871, paragraph 23; C-146/93 McLachlan [1994] ECR I-3229, paragraph 20; Case C-412/93 Leclerc-Siplec [1995] ECR I-179, paragraph 10; and C-167/01 Inspire Art [2003] ECR I-10155, paragraph 43.
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4. Article 4 of the Copyright Treaty, ‘Computer programs’, reads as follows:
‘Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.’
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41. The derogation provided for in Article 73d(1)(a) of the Treaty is itself, as the German Government observed, limited by Article 73d(3) of the Treaty, which provides that the national provisions referred to in paragraph 1 of that article ‘shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 73b’ (see Verkooijen , paragraph 44, and Manninen , paragraph 28). Moreover, in order to be justified, the difference in treatment between the agricultural land and forestry assets situated in Germany and those situated in the other Member States must not go beyond what is necessary to achieve the objective pursued by the legislation at issue.
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28. In that respect, it should be noted that Article 58(1)(a) of the Treaty, which, as a derogation from the fundamental principle of the free movement of capital, must be interpreted strictly, cannot be interpreted as meaning that any tax legislation making a distinction between taxpayers by reference to the place where they invest their capital is automatically compatible with the Treaty. The derogation in Article 58(1)(a) EC is itself limited by Article 58(3) EC, which provides that the national provisions referred to in Article 58(1) ‘shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 56’.
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31. If the plant protection product cannot be regarded as having already been authorised in the Member State of importation, that State may issue a marketing authorisation for that product, but only if the conditions laid down in the Directive are complied with (see Smith & Nephew and Primecrown, paragraph 30, and British Agrochemicals Association , paragraph 37) or may prohibit its being placed on the market and used.
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58. Such restrictions must, however, be appropriate to the objective pursued and must not go beyond what is necessary to attain that objective (Case C‑451/05 ELISA [2007] ECR I‑8251, paragraph 82 and the case-law cited).
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82. However, the restriction in question must be appropriate to the objective pursued, and must not go beyond what is necessary to attain that objective (see, to that effect, Manninen , paragraph 29; Centro di Musicologia Walter Stauffer , paragraph 32; Commission v Denmark , paragraph 46; and Case C‑522/04 Commission v Belgium [2007] ECR I‑0000, paragraph 47).
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50. The adjustment mechanism provided for in those articles is an integral part of the VAT deduction scheme established by Directive 2006/112. It is intended to enhance the precision of deductions so as to ensure the neutrality of VAT, with the result that transactions effected at an earlier stage continue to give rise to the right to deduct only in so far as they are used to make supplies subject to VAT. That mechanism thus aims to establish a close and direct relationship between the right to deduct input VAT paid and the use of the goods or services concerned for taxable output transactions ( TETS Haskovo , paragraphs 30 and 31).
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30. The judgment in Commission v Belgium does not run counter to that interpretation. In paragraph 74 of that judgment, the Court held that it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application. In so ruling, the Court did not exclude the possibility that it is also sufficient that the new measures should introduce some exceptions into the system forming the subject-matter of the reasoned opinion, thus redressing in part the ground for complaint. Not to accept that the action was admissible in such circumstances could enable a Member State to block proceedings under Article 226 EC by making a slight amendment to its legislation every time a reasoned opinion was notified, while in fact maintaining the legislation at issue.
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74 That requirement cannot, however, go so far as to make it necessary that the national provisions mentioned in the reasoned opinion and in the application should always be completely identical. Where a change in the legislation occurred between those two procedural stages, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application (judgments in Case 45/64 Commission v Italy [1965] ECR 857, Case C-42/89 Commission v Belgium [1990] ECR I-2821, and Case C-105/91 Commission v Greece, cited above, paragraph 13).
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39. Conformément à l’article 5 du règlement nº 469/2009, des CCP, tels que ceux visés au point 35 du présent arrêt, délivrés en lien avec ces produits confèrent, à l’expiration du brevet de base, les mêmes droits que ceux qui étaient conférés par ce brevet de base à l’égard desdits produits, dans les limites de la protection conférée par ledit brevet telles qu’énoncées à l’article 4 de ce règlement. Partant, si le titulaire de ce même brevet pouvait, pendant la période de validité de celui-ci, s’opposer, sur le fondement de son brevet, à toute utilisation ou à certaines utilisations de ses produits sous la forme d’un médicament consistant en un tel produit ou contenant celui-ci, les CCP délivrés à l’égard de ces mêmes produits lui conféreront les mêmes droits pour toutes les utilisations de ces produits, en tant que médicament, qui ont été autorisées avant l’expiration desdits certificats (voir arrêts précités Medeva, point 39, et Georgetown University e.a., point 32, ainsi que ordonnances University of Queensland et CSL, précitée, point 34, et du 25 novembre 2011, Daiichi Sankyo, C‑6/11, Rec. p. I‑12255, point 29).
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189. It has consistently been held that the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (see, in particular, judgments in France Télécom v Commission , C‑202/07 P, EU:C:2009:214, paragraph 29, and Ziegler v Commission , C‑439/11 P, EU:C:2013:513, paragraph 81). As has already been stated in paragraph 112 of the present judgment, the obligation to state reasons does not, however, require the General Court to provide an account that follows exhaustively and one by one all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, in particular, judgment in Ziegler v Commission , EU:C:2013:513, paragraph 82 and the case-law cited).
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81. According to settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, inter alia, Case C‑259/96 P Council v de Nil and Impens [1998] I‑2915, paragraphs 32 and 33, and General Química and Others v Commission , paragraph 59).
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126. S’agissant de la proportionnalité des mesures, il importe de rappeler les nombreux rapports de l’AIEA, le grand nombre de résolutions du Conseil de sécurité, de même que les différentes mesures de l’Union. Les mesures re strictives adoptées tant par le Conseil de sécurité que par l’Union sont progressives et justifiées par l’absence de succès des mesures adoptées précédemment. Il résulte de cette démarche fondée sur la progressivité de l’atteinte aux droits en fonction de l’effectivité des mesures que leur proportionnalité est établie.
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20. That criterion must also make it possible to determine whether an individual has used property in such a way that his activity is to be regarded as ‘economic activity’ within the meaning of the Sixth Directive. The fact that property is suitable only for economic exploitation will normally be sufficient for a finding that its owner is exploiting it for the purposes of economic activities and, consequently, for the purpose of obtaining income on a continuing basis. By contrast, if, by reason of its nature, property is capable of being used for both economic and private purposes, all the circumstances in which it is used will have to be examined in order to determine whether it is actually being used for the purpose of obtaining income on a continuing basis (see Case C‑230/94 Enkler [1996] ECR I‑4517, paragraph 27, and Rēdlihs , paragraph 34).
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27 That criterion must also make it possible to determine whether an individual has used property in such a way that his activity is to be regarded as "economic activity" within the meaning of the Sixth Directive. The fact that property is suitable only for economic exploitation will normally be sufficient to find that its owner is exploiting it for the purposes of his economic activities and, consequently, for the purpose of obtaining income on a continuing basis. On the other hand, if, by reason of its nature, property is capable of being used for both economic and private purposes, all the circumstances in which it is used will have to be examined in order to determine whether it is actually used for the purpose of obtaining income on a regular basis.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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38. As regards the argument relied on by the Republic of Austria, that putting in place regeneration plants on its territory is uneconomical and that in those circumstances and by reason of the principle of proportionality the obligations of the Member States concerned should be modified according to the actual circumstances prevailing in them, it must be recalled, as the Court held in paragraphs 35 to 43 of its judgment in Case C-102/97 Commission v Germany [1999] ECR I‑5051, that one of the primary objectives of the Directive was to give priority to the processing of waste oils by regeneration. Therefore, to consider that the technical, economic and organisational circumstances obtaining in a Member State automatically constituted constraints making it impossible to adopt the measures provided for in Article 3(1) of the Directive would deprive that provision of all practical effect, since the obligation imposed on Member States would be limited by maintenance of the status quo, with the result that there would be no genuine obligation to take the measures necessary to give priority to the processing of waste oils by regeneration.
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40 Contrary to the submission of the German Government, the definition of such constraints cannot be left to the exclusive discretion of the Member States. Apart from being contrary to the principle of the uniform interpretation and application of Community law, interpretation by the Member States alone would make the compatibility of processing by regeneration with technical, economic and organisational constraints a condition the fulfilment of which would depend entirely on the goodwill of the Member State concerned, which could thus render the obligation imposed on it worthless.
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30. As regards the first of those facts, it should be borne in mind that, where a private undertaking holds a share of the capital of a concessionaire, this precludes the possibility for a concession-granting public authority to exercise over that concessionaire a control similar to that which it exercises over its own departments (see, to that effect, Case C‑26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraph 49).
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26. Services which a provider carries out without moving from the Member State in which he is established for recipients established in other Member States constitute the provision of cross-border services for the purposes of Article 56 TFEU (see, to that effect, judgments in Alpine Investments , C‑384/93, EU:C:1995:126, paragraphs 21 and 22; Gambelli and Others , C‑243/01, EU:C:2003:597, paragraph 53, and Commission v Spain , C‑211/08, EU:C:2010:340, paragraph 48).
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22 The answer to the first question is therefore that, on a proper construction, Article 59 of the EEC Treaty covers services which the provider offers by telephone to potential recipients established in other Member States and provides without moving from the Member State in which he is established.
The second question
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55. According to settled case-law, the provisions laid down in the framework agreement are intended to apply to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies (Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraph 54, and Joined Cases C‑444/09 and C‑456/09 Gavieiro Gavieiro and Iglesias Torres [2010] ECR I‑0000, paragraph 38).
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81. Situations falling within the material scope of EU law include those involving the exercise of the fundamental freedoms guaranteed by the Treaties, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 21 TFEU (see, to that effect, Grzelczyk , paragraph 33; D’Hoop , paragraph 29; and Rüffler , paragraph 63 and the case-law cited).
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29 The situations falling within the scope of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 8a of the EC Treaty (now, after amendment, Article 18 EC) (Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraphs 15 and 16, and Grzelczyk, paragraph 33).
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Toutefois, ces conditions ne sauraient porter sur la définition du contenu des exonérations prévues (arrêt Commission/France,
C‑197/12, EU:C:2013:202, point 31) et, par conséquent, ne sauraient justifier une exonération généralisée de la location de
postes d’amarrage et d’emplacements pour l’entreposage, y compris lorsque cette location concerne des bateaux qui, en raison
de leurs caractéristiques objectives, ne se prêtent pas à la pratique du sport ou de l’éducation physique.
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51. As a preliminary point, it must be recalled that it is not the task of the Court, in preliminary ruling proceedings, to rule upon the compatibility of national law with Community law or to interpret national law. The Court is, however, competent to give the national court full guidance on the interpretation of Community law in order to enable it to determine the issue of compatibility for the purposes of the case before it (see, inter alia, Case C‑292/92 Hünermund and Others [1993] ECR I‑6787, paragraph 8; Case C-237/04 Enirisorse [2006] ECR I‑2843, paragraph 24; and Centro Europa 7 , paragraphs 49 and 50).
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49. It is not the task of the Court, in preliminary ruling proceedings, to rule upon the compatibility of provisions of national law with Community law or to interpret national legislation or regulations (see Case C‑151/02 Jaeger [2003] ECR I‑8389, paragraph 43, and Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraph 24 and the case-law cited).
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93 As regards the other requirements in the Communication on short-term loans, namely, first, that the aid must be confined to that which is strictly necessary to offset the disadvantages suffered by the agricultural sector and, secondly, that the amount of subsidised loans to any beneficiary must not exceed the cash flow shortfall entailed by financing production before produce is sold, the Spanish Government argues that that is precisely the position here since, in its view, Decree 35/1993 lays down minimum interest which the beneficiary must pay and limits the amount of the subsidy. The interest-rate rebate relates exclusively to financing the purchase of agricultural products under approved contracts.
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38. The subject-matter of an action brought under Article 226 EC is, therefore, delimited by the pre-litigation procedure provided for by that article. Accordingly, the action cannot be founded on any objections other than those stated in the pre-litigation procedure (see, to that effect, Case 51/83 Commission v Italy [1984] ECR 2793, paragraph 4, and Commission v Netherlands , paragraph 23).
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23 It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission. The subject-matter of an action brought under Article 169 of the Treaty is, therefore, delimited by the pre-litigation procedure provided for by that article. Accordingly, the action cannot be founded on any objections other than those stated in the pre-litigation procedure (see, to that effect, Case 51/83 Commission v Italy [1984] ECR 2793, paragraph 4, Case C-206/96 Commission v Luxembourg [1998] ECR I-3401, paragraph 13, and Case C-392/96 Commission v Ireland [1999] ECR I-5901, paragraph 51).
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42. Therefore, it is for the referring court to ensure that the refusal of disclosure by Speech Design, in the context of establishing facts from which it may be presumed that there has been direct or indirect discrimination against Ms Meister, is not liable to compromise the achievement of the objectives pursued by Directives 2000/43, 2000/78 and 2006/54. It must, in particular, take account of all the circumstances of the main proceedings, in order to determine whether there is sufficient evidence for a finding that the facts from which it may be presumed that there has been such discrimination have been established.
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46. However, in order for those principles to apply in relation to public procurement activities in respect of which all the relevant elements are confined to a single Member State, it is necessary for the contract at issue in the main proceedings to be of certain cross-border interest (see, to that effect, judgments in Commission v Ireland , EU:C:2007:676, paragraph 29; Commission v Italy , C‑412/04, EU:C:2008:102, paragraphs 66 and 81; SECAP and Santorso , C‑147/06 and C‑148/06, EU:C:2008:277, paragraph 21; Serrantoni and Consorzio stabile edili , C‑376/08, EU:C:2009:808, paragraph 24; and Commission v Ireland , EU:C:2010:697, paragraph 31).
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81. It is settled case‑law, as stated in paragraph 66 of this judgment, that public service contracts falling outside the scope of Directive 92/50 which have been shown to be of certain cross-border interest remain subject to the fundamental freedoms laid down by the Treaty in the circumstances specified in the case-law set out in that paragraph.
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42. In that last regard, it is for the dominant undertaking to show that the efficiency gains likely to result from the conduct under consideration counteract any likely negative effects on competition and consumer welfare in the affected markets, that those gains have been, or are likely to be, brought about as a result of that conduct, that such conduct is necessary for the achievement of those gains in efficiency and that it does not eliminate effective competition, by removing all or most existing sources of actual or potential competition.
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148
It must be borne in mind that the objective of the freedom of establishment guaranteed by Article 49 TFEU is to allow a national of a Member State to set up a secondary establishment in another Member State to carry on his activities there and thus assist economic and social interpenetration within the European Union in the sphere of activities as self-employed persons. To that end, freedom of establishment is intended to allow a national of a Member State to participate, on a stable and continuing basis, in the economic life of a Member State other than his State of origin and to profit therefrom by actually pursuing in the host Member State an economic activity through a fixed establishment for an indefinite period (see to that effect, inter alia, judgment in Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraphs 53 and 54 and the case-law cited).
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54. Having regard to that objective of integration in the host Member State, the concept of establishment within the meaning of the Treaty provisions on freedom of establishment involves the actual pursuit of an economic activity through a fixed establishment in that State for an indefinite period (see Case C-221/89 Factortame and Others [1991] ECR I-3905, paragraph 20, and Case C-246/89 Commission v United Kingdom [1991] ECR I-4585, paragraph 21). Consequently, it presupposes actual establishment of the company concerned in the host Member State and the pursuit of genuine economic activity there.
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72. Il convient de rappeler que les autorités nationales compétentes sont tenues, en ce qui concerne les opérations de stockage temporaire, de veiller au respect des obligations résultant de l’article 4 de la directive 2006/12, qui prévoit, à son paragraphe 1, que les États membres prennent les mesures nécessaires pour assurer que les déchets seront valorisés ou éliminés sans mettre en danger la santé de l’homme et sans que soient utilisés des procédés ou des méthodes susceptibles de porter préjudice à l’environnement. Dans la mesure où les déchets, même stockés temporairement, peuvent causer des dommages importants à l’environnement, il y a lieu en effet de considérer que les dispositions de cet article 4, qui visent à mettre en œuvre le principe de précaution, sont également applicables à l’opération de stockage temporaire (voir, en ce sens, arrêts du 5 octobre 1999, Lirussi et Bizzaro, C-175/98 et C‑177/98, Rec. p. I-6881, point 53, ainsi que du 11 décembre 2008, MI.VER et Antonelli, C-387/07, non encore publié au Recueil, point 24).
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61. Consequently, the fact that Article 13B(d)(6) of the Sixth Directive allows Member States a discretion, indicating that they are responsible for defining special investment funds, does not prevent the persons concerned from relying directly on that provision (see, by analogy, Dornier , paragraph 81), where a Member State exercising that discretion has adopted national measures which are incompatible with that directive (see, to that effect, Linneweber and Akritidis , paragraphs 36 and 37).
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36. It is important to note, moreover, that the principle which applies where a Member State has not exercised the powers conferred on it by Article 13B(f) of the Sixth Directive must apply a fortiori where, in exercising that power, a Member State has adopted national provisions which are not compatible with the directive.
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33. En outre, il a déjà été jugé, s’agissant d’un produit ayant deux utilisations possibles, que, l’une des utilisations ne relevant que d’une possibilité purement théorique, ledit produit était, en raison de ses caractéristiques et propriétés objectives, naturellement destiné à l’autre utilisation et relevait, par conséquent, de la position tarifaire afférente à cette utilisation (voir arrêt Sysmex Europe, C‑480/13, EU:C:2014:2097, point 32).
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31. For holdings not falling under Directive 90/435, it is for the Member States to determine whether, and to what extent, the economic double taxation of distributed benefits must be avoided, and to introduce, for that purpose, unilaterally or by means of conventions concluded with other Member States, mechanisms to prevent or attenuate that economic double taxation. However, that mere fact does not authorise them to apply measures contrary to the freedoms of movement guaranteed by the EC Treaty (see, to that effect, Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraph 54).
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54. The mere fact that, for holdings to which Directive 90/435 does not apply, it is for the Member States to determine whether, and to what extent, a series of charges to tax and economic double taxation are to be avoided and, for that purpose, to establish, either unilaterally or through DTCs concluded with other Member States, procedures intended to prevent or mitigate such a series of charges to tax and that economic double taxation, does not of itself mean that the Member States are entitled to impose measures that contravene the freedoms of movement guaranteed by the Treaty.
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10 IT MUST HOWEVER BE STATED THAT THE CIRCUMSTANCES RELIED UPON BY THE GERMAN GOVERNMENT RELATE TO THE SUBSTANCE OF THE QUESTIONS SUBMITTED BY THE NATIONAL COURT . CONSEQUENTLY , WHILST THEY MAY BE RELEVANT TO AN ANSWER TO THOSE QUESTIONS , THEY ARE NOT RELEVANT IN DETERMINING WHETHER THE COURT HAS JURISDICTION TO RULE ON THE REQUEST FOR A PRELIMINARY RULING .
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49
Relying, in particular, on the case-law arising from the judgments of 16 November 2000, Weig v Commission (C‑280/98 P, EU:C:2000:627, paragraphs 52 to 68), and of 16 November 2000, Sarrió v Commission (C‑291/98 P, EU:C:2000:631, paragraphs 91 to 100), the appellant submits that there are numerous precedents in which the Court of Justice considered that it had to set aside the judgment of the General Court in so far as it had used a different calculation method, when reviewing fines, from that used by the Commission or by the General Court itself with regard to other undertakings implicated in the infringement at issue. Although it is true that the Court of Justice has already held, in particular in paragraph 181 of its judgment of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062), that the Commission is not required to indicate the figures relating to the method of calculating the fines, it nevertheless pointed out that it is, at the very least, ‘preferable’ that the mechanism used to set the amount of the fine be given.
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55 In those circumstances, the appellant was treated less favourably than the undertakings whose lesser participation in the infringement the Commission had already recognised and on which it had imposed a lower fine in accordance with its formula. That had been the outcome in Case T-295/94 Buchmann v Commission [1998] ECR II-813, Case T-310/94 Gruber + Weber v Commission [1998] ECR II-1043, and Case T-348/94 Enso Española v Commission [1998] ECR II-1875.
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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. In fact, whereas, through the mechanism of the deduction of tax laid down by Articles 17 to 20 of the Sixth Directive, VAT taxes only the final consumer and is completely neutral as regards the taxable persons involved in the production and distribution process prior to the stage of final taxation, regardless of the number of transactions involved (Case C‑317/94 Elida Gibbs [1996] ECR I-5339, paragraphs 19, 22 and 23, and Case C‑427/98 Commission v Germany [2002] ECR I-8315, paragraph 29), that is not the case with IRAP.
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22 It is not, in fact, the taxable persons who themselves bear the burden of VAT. The sole requirement imposed on them, when they take part in the production and distribution process prior to the stage of final taxation, regardless of the number of transactions involved, is that, at each stage of the process, they collect the tax on behalf of the tax authorities and account for it to them.
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17. In that regard, it should be recalled that the Court may reject a reference for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of European Union law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 61, and Case C‑97/09 Schmelz [2010] ECR I‑0000, paragraph 29).
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31. However, even though, in certain circumstances, such as the loss of goods, their sale at a loss or unlawful sale at a price different from the retail price indicated on the tax labels, the manufacturer or importer may, in the context of a scheme such as that at issue in the main proceedings, be obliged to pay an amount of VAT which is higher than that which would have resulted from the application of the ordinary harmonised system for levying VAT, the mere possibility that such events may take place is not sufficient, however, to justify the conclusion that that scheme might affect, to a non-negligible extent, the amount of tax due at the final consumption stage (see, to that effect, Heintz van Landewijck , paragraphs 56 to 58). Indeed, a simplification measure implies, by definition, a more general approach than that of the rule which it replaces and thus will not necessarily reflect the exact situation of each taxable person ( Sudholz , paragraph 62).
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58. The nature of the arguments that the scheme for collecting tax by means of tax stamps may lead to a variation in the tax due at the final consumption stage is not such as to support the conclusion that that scheme might affect, to a non-negligible extent, the amount of tax due at the final consumption stage. Such a scheme does not therefore disregard the criteria set out in Article 27(1) of the Sixth Directive.
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17. In that regard, it is clear from the Court’s settled case-law that the purpose of the legislation concerned must be taken into consideration (judgments in Test Claimants in the FII Group Litigation , C‑35/11, EU:C:2012:707, paragraph 90 and the case-law cited and Hervis Sport- és Divatkereskedelmi, C‑385/12, EU:C:2014:47, paragraph 21).
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41 The argument that safeguard measures may be taken only under the conditions set out in Article 134 of the Treaty must also be rejected. While the Court has held that that provision is intended to apply from the entry into force of the Treaty until the creation of a common customs area (Road Air, paragraph 36), Article 134 and the second paragraph of Article 136 pursue different aims, and the interpretation of the latter provision by the Court of First Instance therefore does not call into question the scope of the former provision.
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36 Contrary to Road Air's assertion, that interpretation does not render Article 134 of the Treaty meaningless. It is sufficient, on that point, to note that, between the entry into force of the Treaty and creation of the common customs area, certain products originating in non-member countries could be granted a reduction of customs duties or be exempted from duties in an OCT, and thereafter in the Member State with which that OCT maintained special relations. That situation was capable of giving rise to deflections of trade to the detriment of a Member State and the latter would therefore have been entitled to make a request to the Commission under Article 134.
The interpretation of Article 136 of the Treaty
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26 It must also be borne in mind that the Court has held (see its judgment in Case C-269/90 Hauptzollamt Muenchen-Mitte v Technische Universitaet Muenchen [1991] ECR I-5469) that where the Community institutions have such a power of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of fundamental importance. Those guarantees include, in particular, the obligation to give an adequate statement of the reasons for the decision. That statement of reasons must show, clearly and unequivocally, the reasoning of the author of the measure, so that the person concerned can, in order to defend his rights, ascertain the grounds on which it was adopted, and the Court can undertake its review.
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28
Taking this into account need not necessarily involve an assessment or inspection of every vehicle. To avoid the burden inherent in such a system, a Member State might be able to establish, by means of fixed scales determined by statute, regulation or administrative provision and calculated on the basis of criteria such as a vehicle’s age, kilometrage, general condition, method of propulsion, make or model, a value for second-hand vehicles which, as a general rule, would be very close to their actual value (see judgment of 14 April 2015 in Manea, C‑76/14, EU:C:2015:216, paragraph 35 and the case-law cited).
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35. Taking this into account need not necessarily involve an assessment or inspection of every vehicle. Avoiding the burden inherent in such a system, a Member State might be able to establish, by means of fixed scales determined by statute, regulation or administrative provision and calculated on the basis of criteria such as a vehicle’s age, kilometrage, general condition, method of propulsion, make or model, a value for second-hand vehicles which, as a general rule, would be very close to their actual value (judgments in Gomes Valente , C‑393/98, EU:C:2001:109, paragraph 24; Weigel , C‑387/01, EU:C:2004:256, paragraph 73; Commission v Greece , C‑74/06, EU:C:2007:534, paragraph 29; and Tatu , C‑402/09, EU:C:2011:219, paragraph 41).
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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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31. In that regard, it is also clear from the case-law of the Court that, in relation to direct taxes, the situations of residents and of non-residents in a State are generally not comparable, because the income received in the territory of a State by a non-resident is in most cases only a part of his total income, which is concentrated at his place of residence, and because a non-resident’s personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is easier to assess at the place where his personal and financial interests are centred, which in general is the place where he has his usual abode (judgment in Wallentin , C‑169/03, EU:C:2004:403, paragraph 15 and the case-law cited).
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15. As the Court has held, in relation to direct taxes, the situations of residents and of non-residents are generally not comparable, because the income received in the territory of a State by a non-resident is in most cases only a part of his total income, which is concentrated at his place of residence, and because a non-resident’s personal ability to pay tax, determined by reference to his aggregate income and his personal and family circumstances, is easier to assess at the place where his personal and financial interests are centred, which in general is the place where he has his usual abode ( Schumacker , cited above, paragraphs 31 and 32; Case C-391/97 Gschwind [1999] ECR I-5451, paragraph 22; Case C-87/99 Zurstrassen [2000] ECR I-3337, paragraph 21, and Gerritse , cited above, paragraph 43).
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17 Even though an individual measure may almost inevitably entail the commitment of expenditure, the two must be distinguished - particularly since the power to adopt the administrative decision and the power to commit the expenditure may be entrusted, within the internal organization of each institution, to different officials .
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96. As regards the first error of law invoked by the appellants, alleging that the Court of First Instance classified the infringement in the abstract without regard to the erroneous determination of its actual impact on the market, it must be noted that, in order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Community (see Musique Diffusion française and Others v Commission , paragraph 129, and Dansk Rørindustri and Others v Commission , paragraph 242). It follows from this that the effect of an anti‑competitive practice is not, in itself, a conclusive criterion for assessing the proper amount of a fine. In particular, factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such as market sharing, a factor which is present in this case (see Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 118).
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118. Thus, in that part of the judgment under appeal, the Court of First Instance examined one of the criteria normally applied in assessing the seriousness of an infringement, while stating, in paragraph 635, that an infringement of Article 65(1) of the ECSC Treaty may be found and a fine imposed under Article 65(5) even in the absence of anti-competitive effects. As it stated in paragraph 636 of the judgment under appeal, the effect which an anti-competitive practice has is therefore not a conclusive criterion for assessing the proper amount of a fine. Factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such as price-fixing and market-sharing, factors which are present in this case.
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45. Even if that tax legislation is thus based on a link between the tax advantage and the offsetting tax levy, in providing that the tax credit granted to the shareholder fully taxable in Finland is to be calculated by reference to the corporation tax due from the company established in that Member State on the profits which it distributes, such legislation does not appear to be necessary in order to preserve the cohesion of the Finnish tax system.
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25. It is apparent from those observations that FCD and FMB and the Commission are asking the Court to rule on the compatibility of the Notice of 8 June 2011 with EU law. It is settled case-law, however, that it is not for the Court, in the context of a reference for a preliminary ruling under Article 267 TFEU, to give a ruling on the compatibility of provisions of national law with EU law or to interpret national legislative or regulatory provisions (see, to that effect, inter alia, judgment in Vueling Airlines , C‑487/12, EU:C:2014:2232, paragraph 26 and the case-law cited). The Court has jurisdiction to give the national court full guidance on the interpretation of EU law in order to enable it to determine the issue of compatibility for the purposes of the case before it (judgment in Transportes Urbanos y Servicios Generales , C‑118/08, EU:C:2010:39, paragraph 23 and the case-law cited).
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26. In that regard, it should be noted that it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the national court of those provisions is correct (see, in particular, judgments in Corsten , C‑58/98, EU:C:2000:527, paragraph 24; Dynamic Medien , C‑244/06, EU:C:2008:85, paragraph 19; Angelidaki and Others , C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 48; and Samba Diouf , C‑69/10, EU:C:2011:524, paragraph 59).
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17 As regards the Amtskommune's argument that the product was never put into circulation since it never left the medical sphere of control of the dispensary which made the fluid and the hospital where it was used, such circumstances are not decisive where, as in the present case, the use of the product is characterised by the fact that the person for whom it is intended must bring himself within that sphere of control. Where a patient is admitted to hospital, it cannot matter whether the product used in the course of medical treatment was made in the hospital establishment or was acquired from a third party, as it might have been in this instance, as the United Kingdom Government has pointed out. Whether a product used in the provision of a service was made by a third party, by the service provider himself or by an entity linked to the service provider cannot of itself alter the fact that the product was put into circulation.
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67. In the application of Article 107(3) TFEU, the Commission enjoys a discretion, the exercise of which involves complex assessments of an economic and social nature (see, to that effect, judgments in Deufil v Commission , 310/85, EU:C:1987:96, paragraph 18, and in Italy v Commission , C‑372/97, EU:C:2004:234, paragraph 83). Thus, the Court, in reviewing whether that discretion was lawfully exercised, cannot substitute its own assessment in the matter for that of the Commission (see, to that effect, judgments in Spain v Commission , C‑169/95, EU:C:1997:10, paragraph 34, and in Unicredito Italiano , EU:C:2005:774, paragraph 71).
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34 It must be borne in mind first of all that, where the Commission enjoys a significant freedom of assessment, as is the case when it is applying Article 92 of the Treaty, the Courts, when examining the lawfulness of the exercise of such freedom, cannot substitute their own assessment of the matter for that of the competent authority but must restrict themselves to examining whether the assessment of the competent authority contains a manifest error or constitutes a misuse of power (see, in particular, Case 57/72 Westzucker v Einfuhr- und Vorratsstelle für Zucker [1973] ECR 321, paragraph 14).
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68. Les dispositions litigieuses du code ne sont pas de nature à compenser les désavantages auxquels sont exposées les carrières des fonctionnaires et militaires féminins ainsi que celles des autres personnels féminins auxquels le code s’applique en aidant ces femmes dans leur vie professionnelle. Au contraire, elles se bornent à accorder aux bénéficiaires de sexe féminin, et notamment celles ayant la qualité de mère, des conditions plus favorables que celles applicables aux bénéficiaires de sexe masculin, en ce qui concerne l’âge de départ à la retraite et le service minimum requis au moment du départ à la retraite, sans porter remède aux problèmes qu’elles peuvent rencontrer durant leur carrière professionnelle (voir, en ce sens, arrêt Griesmar, précité, point 65).
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40. As has been observed at paragraph 28 of this judgment, the statement of objections is merely a preparatory document containing assessments of fact and of law which are purely provisional in nature. The subsequent decision does not necessarily need to be a copy of the statement of objections, since the Commission must take into account the factors emerging from the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains (see, in particular, Musique Diffusion française and Others v Commission , paragraph 14, and Aalborg Portland and Others v Commission , paragraph 67).
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14 IT IS CLEAR FROM PREVIOUS DECISIONS OF THE COURT THAT THE STATEMENT OF OBJECTIONS MUST SET FORTH CLEARLY ALL THE ESSENTIAL FACTS UPON WHICH THE COMMISSION IS RELYING AT THAT STAGE OF THE PROCEDURE . THAT MAY BE DONE SUMMARILY AND THE DECISION IS NOT NECESSARILY REQUIRED TO BE A REPLICA OF THE COMMISSION ' S STATEMENT OF OBJECTIONS . THE COMMISSION MUST TAKE INTO ACCOUNT THE FACTORS EMERGING FROM THE ADMINISTRATIVE PROCEDURE IN ORDER EITHER TO ABANDON SUCH OBJECTIONS AS HAVE BEEN SHOWN TO BE UNFOUNDED OR TO AMEND AND SUPPLEMENT ITS ARGUMENTS , BOTH IN FACT AND IN LAW , IN SUPPORT OF THE OBJECTIONS WHICH IT MAINTAINS , PROVIDED HOWEVER THAT IT RELIES ONLY ON FACTS ON WHICH THE PARTIES CONCERNED HAVE HAD AN OPPORTUNITY TO MAKE KNOWN THEIR VIEWS AND PROVIDED THAT , IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE , IT HAS MADE AVAILABLE TO THE UNDERTAKINGS CONCERNED THE INFORMATION NECESSARY FOR THEIR DEFENCE .
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33. It should be noted first of all that under the system established by the Regulation all the competent authorities to which notification of a proposed shipment of waste is addressed must check that the classification by the notifier is consistent with the provisions of the Regulation and object to a shipment which is incorrectly classified (Case C-6/00 ASA [2002] ECR I-1961, paragraph 40).
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48
It should also be recalled that, in setting the amount of fines, regard must be had to the duration of the infringement and to all the factors capable of affecting the assessment of the gravity of that infringement (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 240, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 98).
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240. It should be noted at the outset, first, that according to the case-law of the Court, in fixing the amount of the fines, regard must be had to duration and to all the factors capable of affecting the asse ssment of the gravity of the infringements (see Musique Diffusion française and Others v Commission , paragraph 129).
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15 That requirement is in no way put in doubt by the procedure for cases of urgency provided for in Article 38 of the Treaty, which must be reserved for exceptional circumstances and cannot relieve the Member States of their duty to comply scrupulously with their obligations under Article 37 .
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46. As regards the appellants’ third and fourth grounds of appeal in Case C‑13/13 P, the General Court, in paragraphs 77 to 87 of the judgment under appeal, examined the supposed unusual and special nature of the harm alleged, for the sake of completeness in the event of the principle of EU liability for a lawful act being recognised in EU law (see, to that effect, judgment in Dorsch Consult v Council and Commission , C‑237/98 P, EU:C:2000:321, paragraphs 18 and 19).
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19 It follows that the Community cannot incur non-contractual liability in respect of a lawful act, as in the present case, unless the three conditions referred to in the two preceding paragraphs, namely the reality of the damage allegedly suffered, the causal link between it and the act on the part of the Community institutions, and the unusual and special nature of that damage, are all fulfilled.
Existence of actual and certain damage
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35 It is therefore apparent that, in proceedings aimed at the enforcement of unfair terms brought by sellers or suppliers against consumers, the fixing of a time-limit on the court's power to set aside such terms, of its own motion or following a plea raised by the consumer, is liable to affect the effectiveness of the protection intended by Articles 6 and 7 of the Directive. To deprive consumers of the benefit of that protection, sellers or suppliers would merely have to wait until the expiry of the time-limit fixed by the national legislature before seeking enforcement of the unfair terms they would continue to use in contracts.
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18 Furthermore, some of the derogations provided for by the Treaty concern only the rules relating to the free movement of goods, persons and services, and not the social provisions of the Treaty, of which the principle of equal treatment for men and women relied on by Tanja Kreil forms part. In accordance with settled case-law, this principle is of general application and the Directive applies to employment in the public service (Case 248/83 Commission v Germany [1985] ECR 1459, paragraph 16, Case C-1/95 Gerster v Freistaat Bayern [1997] ECR I-5253, paragraph 18, and Sirdar, cited above, paragraph 18).
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28 The question is therefore whether, in the circumstances of the present case, the measures taken by the national authorities, in the exercise of the discretion which they are recognised to enjoy, do in fact have the purpose of guaranteeing public security and whether they are appropriate and necessary to achieve that aim.
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26. À titre liminaire, il y a lieu de rappeler que, ainsi que l’indique le considérant 22 de la directive 2000/78, la législation sur l’état civil des personnes relève de la compétence des États membres. Toutefois, conformément à son article 1 er , la directive 2000/78 a pour objet de combattre, en matière d’emploi et de travail, certains types de discriminations, au nombre desquelles figurent celles fondées sur l’orientation sexuelle, en vue de mettre en œuvre, dans les États membres, le principe de l’égalité de traitement (voir arrêt du 10 mai 2011, Römer, C‑147/08, Rec. p. I‑3591, point 38).
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53. As regards the applicability of Article 18 EC, that provision, which lays down generally the right for every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in the provisions guaranteeing the freedom to provide services (see, inter alia, Case C-92/01 Stylianakis [2003] ECR I-1291, paragraph 18; Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-6849, paragraph 34; and Case C-56/09 Zanotti [2010] ECR I-0000, paragraph 24). As citizens of the European Union who do not reside in the Netherlands and wish to go into coffee-shops in the municipality of Maastricht to consume lawful goods there are to be regarded as ‘persons for whom’ services ‘are intended’ within the meaning of Article 49 EC, it is not necessary for the Court to rule on the interpretation of Article 18 EC.
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24. It should be noted, first, that Article 18 EC, which lays down generally the right for every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in the provisions guaranteeing the freedom to provide services. If, therefore, the case in the main proceedings falls under Article 49 EC, it will not be necessary for the Court to rule on the interpretation of Article 18 EC (see, inter alia, Case C-92/01 Stylianakis [2003] ECR I-1291, paragraph 18, and Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-6849, paragraph 34).
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33 The answer to the first question must therefore be that, for the purposes of determining whether national rules, such as the regulation adopted on 9 December 1994, constitute a technical regulation covered by the obligation to notify the Commission laid down in Directive 83/189, the subsequent amendments introduced by Directive 94/10 should not be taken into consideration.
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30 In this regard, the Court has consistently held that the principle of equal treatment requires that similar situations should not be treated differently and that different situations should not be treated identically unless such differentiation is objectively justified (see judgment in Case C-217/91 Spain v Commission [1993] ECR I-3923, paragraph 37).
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37 Those arguments cannot be upheld. According to settled case-law, the principle of equal treatment, when considered as a general principle of Community law, requires that similar situations should not be treated differently and different situations should not be treated identically unless such a differentiation is objectively justified.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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39. As the Court has previously stated, the concept of ‘supply of goods’ does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if the recipient were the owner of the property (see Case C‑320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I‑285, paragraph 7, and Case C‑185/01 Auto Lease Holland [2003] ECR I‑1317, paragraph 32).
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7 It is clear from the wording of this provision that "supply of goods" does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were the owner of the property .
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17. The Sąd Najwyższy observes that the Court has held that Article 58 of the 2003 Act of Accession precludes obligations contained in Community legislation which has not been published in the Official Journal of the European Union in the language of a new Member State, where that language is an official language of the European Union, from being imposed on individuals in that State, even though those persons could have become acquainted with that legislation by other means (Case C‑161/06 Skoma-Lux [2007] ECR I‑10841, paragraphs 57 to 59, and Case C‑560/07 Balbiino [2009] ECR I‑4447, paragraph 30).
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34. It must be recalled that, pursuant to the allocation of judicial functions between national courts and the Court of Justice under Article 267 TFEU, while the Court gives a preliminary ruling without, generally, having to look into the circumstances in which national courts were prompted to submit the questions and envisage applying the provision of European Union law which they have asked the Court to interpret, the position is different, however, in a case, in particular, where it is obvious that the provision of European Union law referred to the Court for interpretation is incapable of applying (see, to that effect, Joined Cases C‑297/88 and C‑197/89 Dzodzi [1990] ECR I‑3763, paragraphs 39 and 40, and Case C‑64/06 Telefónica 02 Czech Republic [2007] ECR I‑4887, paragraphs 22 and 23).
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22. Provided that the questions referred for preliminary ruling concern the interpretation of Community law, the Court gives its ruling without, generally, having to look into the circumstances in which national courts were prompted to submit the questions and envisage applying the provision of Community law which they have asked the Court to interpret (Case C‑85/95 Reisdorf [1996] ECR I‑6257, paragraph 15).
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Il convient de rappeler que la condition selon laquelle la personne qui introduit un recours en annulation doit être directement
concernée par l’acte attaqué implique que celui-ci produise directement des effets sur la situation juridique de cette personne
et ne laisse aucun pouvoir d’appréciation à ses destinataires qui sont chargés de sa mise en œuvre, celle-ci ayant un caractère
purement automatique et découlant de la seule réglementation de l’Union, sans application d’autres règles intermédiaires (voir,
notamment, arrêt Regione Siciliana/Commission, C‑15/06 P, EU:C:2007:183, point 31).
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107. The principles of customary international law mentioned in paragraph 103 of the present judgment may be relied upon by an individual for the purpose of the Court’s examination of the validity of an act of the European Union in so far as, first, those principles are capable of calling into question the competence of the European Union to adopt that act (see Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85 Ahlström Osakeyhtiö and Others v Commission [1988] ECR 5193, paragraphs 14 to 18, and Case C‑405/92 Mondiet [1993] ECR I‑6133, paragraphs 11 to 16) and, second, the act in question is liable to affect rights which the individual derives from European Union law or to create obligations under European Union law in his regard.
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15 The applicants have submitted that the decision is incompatible with public international law on the grounds that the application of the competition rules in this case was founded exclusively on the economic repercussions within the common market of conduct restricting competition which was adopted outside the Community .
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41. Moreover, with regard to the interpretation of the word ‘loudspeaker’ in heading 8518 of the CN, it is necessary to take into account Point B of the explanatory note of the HS relating to heading 8518, even for the period of importation of the goods concerned prior to the entry into force of that explanatory note. Since the wording of that heading, as regards ‘loudspeakers’, as amended by Regulation No 1789/2003, is identical to that of the same heading of the CN, as amended by Regulations No 2388/2000, 2031/2001 and 1832/2002, a different meaning should not, in principle, be given to the word ‘loudspeaker’ from that which should be given to it taking into account Point B of that explanatory note (see, to that effect, the judgment in Delphi Deutschland , EU:C:2011:315, paragraph 26).
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24. According to settled case-law, the procedure provided for in Article 177 of the Treaty is a means of cooperation between the Court of Justice and national courts. It follows that it is for the national courts alone which are seised of the case and are responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court (see, in particular, the judgments in Joined Cases C-297/88 and C‑197/89 Dzodzi [1990] ECR I-3763, paragraphs 33 and 34, and in Case C-231/89 Gmurzynska-Bscher [1990] ECR I‑4003, paragraphs 18 and 19).
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33 The procedure provided for in Article 177 of the Treaty is therefore an instrument for cooperation between the Court of Justice and the national courts, whereby the Court of Justice provides the national courts with the criteria for the interpretation of Community law which they need in order to dispose of the disputes which they are called upon to resolve .
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85. The answer to the fourth and fifth questions is therefore that examination of the questions referred has disclosed no factor of such a kind as to affect the validity of the Regulation as regards the principle of proportionality.
The sixth question
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26. While the spirit of cooperation which must prevail in the exercise of the functions assigned by Article 234 EC to the national courts, on the one hand, and the Community judicature, on the other, requires the Court of Justice to have regard to the particular responsibilities of the national court, it implies at the same time that the national court, in the use which it makes of the possibilities offered by that article, must have regard to the particular function entrusted to the Court of Justice in this field, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (see Case 244/80 Foglia , paragraphs 18 and 20, and Meilicke , paragraph 25).
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18 IT MUST IN FACT BE EMPHASIZED THAT THE DUTY ASSIGNED TO THE COURT BY ARTICLE 177 IS NOT THAT OF DELIVERING ADVISORY OPINIONS ON GENERAL OR HYPOTHETICAL QUESTIONS BUT OF ASSISTING IN THE ADMINISTRATION OF JUSTICE IN THE MEMBER STATES . IT ACCORDINGLY DOES NOT HAVE JURISDICTION TO REPLY TO QUESTIONS OF INTERPRETATION WHICH ARE SUBMITTED TO IT WITHIN THE FRAMEWORK OF PROCEDURAL DEVICES ARRANGED BY THE PARTIES IN ORDER TO INDUCE THE COURT TO GIVE ITS VIEWS ON CERTAIN PROBLEMS OF COMMUNITY LAW WHICH DO NOT CORRESPOND TO AN OBJECTIVE REQUIREMENT INHERENT IN THE RESOLUTION OF A DISPUTE . A DECLARATION BY THE COURT THAT IS HAS NO JURISDICTION IN SUCH CIRCUMSTANCES DOES NOT IN ANY WAY TRESPASS UPON THE PREROGATIVES OF THE NATIONAL COURT BUT MAKES IT POSSIBLE TO PREVENT THE APPLICATION OF THE PROCEDURE UNDER ARTICLE 177 FOR PURPOSES OTHER THAN THOSE APPROPRIATE FOR IT .
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26 Finally, it must be borne in mind that the decision at issue is presumed to be lawful and that, despite the existence of the action for annulment, it remains binding in all respects on the French Republic (Commission v Portugal, cited above, paragraph 57).
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22. Neither the wording of Article 234 EC nor the aim of the procedure established by that article indicates that the EC Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision in the specific case where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State ( Dzodzi , paragraph 36; Leur-Bloem , paragraph 25, and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 19).
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19. The Court has already held that neither the wording of Article 234 EC nor the aim of the procedure established by that article indicates that the Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State ( Leur-Bloem , paragraph 25).
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34. Against that background, the expression ‘investment in … the obtaining … of the contents’ of a database must, as Veikkaus and the German and Netherlands Governments point out, be understood to refer to the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. The purpose of the protection by the sui generis right provided for by the directive is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.
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39
As the Court has already pointed out, Article 2 of Directive 98/59 imposes an obligation to negotiate (judgment of 27 January 2005, Junk , C‑188/03, EU:C:2005:59, paragraph 43). It is apparent from the wording of that provision that the consultations to be carried out must take place with a view to reaching an agreement, must at least cover ways and means of avoiding the projected collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures, and must enable workers’ representatives to make constructive proposals on the basis of a range of information that the employer is required to make available to them.
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43. It thus appears that Article 2 of the directive imposes an obligation to negotiate.
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81. In addition, the restriction in question is proportionate to the objective pursued. It should be remembered, first, that the objective of the legislation at issue is to avoid – upon the purchase of a second principal residence in Hungary – the double taxation of the capital invested in the purchase of the previous residence that has been sold. Second, as noted in paragraph 74 above, the Republic of Hungary has no power to tax real property transactions carried out in other Member States.
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12 It should be recalled here that trade between Member States is not likely to be impeded, directly or indirectly, actually or potentially, within the meaning of the Dassonville judgment, cited above, by the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Where those conditions are satisfied, the application of such rules to the sale of products from another Member State meeting the rules laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty (see the judgments in Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraphs 16 and 17, in Case C-292/92 Huenermund and Others [1993] ECR I-6787, paragraph 21, and in Case C-412/93 Leclerc [1995] ECR I-719, paragraph 21).
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21 The application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (cited above), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty (Joined Cases C-267 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraphs 16 and 17).
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35 In view of all the circumstances set out above it appears, on the one hand, that various factors known to the institutions were in any event such as to raise doubts as to the appropriateness of Sri Lanka as a reference country and, on the other hand, that the institutions did not make a serious or sufficient attempt to determine whether Taiwan could be considered as an appropriate reference country.
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34. The second subparagraph of Article 1(b) of that directive merely states that such needs must not have an industrial or commercial character, while it is clear from an overall reading of that article that meeting needs in the general interest which are not industrial or commercial in character is a necessary, but not sufficient, condition for designating a body as a "body governed by public law" and, therefore, a "contracting authority" within the meaning of Directive 93/36. In order to be covered by that directive, the body must also have legal personality and depend heavily, for its financing, management or supervision, on the State, regional or local authorities or other bodies governed by public law (see, with respect to the cumulative nature of the criteria laid down, in the same terms, in the second subparagraph of Article 1(b) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) and the second subparagraph of Article 1(b) of Directive 93/37, Mannesmann Anlagenanbau Austria , paragraphs 21 and 38, BFI Holding , paragraph 29, Case C-237/99 Commission v France [2001] ECR I-939, paragraph 40, and Joined Cases C-223/99 and C-260/99 Agorà and Excelsior [2001] ECR I-3605, paragraph 26).
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26 In that regard, it should be noted that the three conditions set out in that provision are cumulative (Case C-44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I-73, paragraph 21).
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20 That institution, it is clear from the scheme of the directive, must be the guarantee institution of the State in which, in accordance with Article 2(1) of the directive, either it is decided to open the proceedings for the collective satisfaction of creditors' claims, or it has been established that the employer's undertaking or business has been definitively closed down.
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19 According to settled case-law, Articles 48, 52 and 59 of the Treaty cannot be applied to activities which are confined in all respects within a single Member State (Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 37; Case C-332/90 Steen [1992] ECR I-341, paragraph 9; and Joined Cases C-29/94 to C-35/94 Aubertin and Others [1995] ECR I-301, paragraph 9).
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9 It is settled case-law that the Treaty provisions on the freedom of movement for persons cannot be applied to activities which are confined in all respects within a single Member State (see, for example, Joined Cases C-330/90 and C-331/90 López Brea and Hidalgo Palacios [1992] ECR I-323, paragraph 7).
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35 As the Advocate General noted at points 25 and 26 of his Opinion, in contrast to levies designed to meet general public charges, the CSG is allocated specifically and directly to financing social security in France, the corresponding revenue being allocated to the Caisse Nationale des Allocations Familiales, the Fonds de Solidarité Vieillesse and the compulsory sickness schemes. The purpose of the CSG is therefore to finance more particularly the branches which concern old-age, survivors', sickness and family benefits, which are covered by Article 4 of Regulation No 1408/71.
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55. En premier lieu, en ce qui concerne la gravité de l’infraction, il convient de rappeler que la directive 91/271 vise à protéger l’environnement (voir arrêt Commission/Belgique, C‑533/11, EU:C:2013:659, point 55). L’absence ou l’insuffisance de systèmes de collecte ou de traitement des eaux urbaines résiduaires sont susceptibles de porter atteinte à l’environnement et doivent être considérées comme particulièrement graves (voir, par analogie, arrêt Commission/Grèce, C‑378/13, EU:C:2014:2405, point 54). S’agissant de la circonstance invoquée par la République hellénique, selon laquelle les eaux usées des agglomérations de Koropi, de Nea Makri, de Rafina et d’Artemida seraient acheminées et traitées dans des stations d’épuration voisines, si elle est susceptible, en principe, de constituer une circonstance atténuante, elle ne saurait, en l’occurrence, être prise en compte dès lors qu’elle est contestée par la Commission et que la République hellénique n’a apporté aucun élément de preuve à l’appui de son allégation.
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54. As regards, in the first place, the seriousness of the infringement, it should be borne in mind, as the Court has held, that the obligation to dispose of waste without endangering human health and without harming the environment is inherent in the key objectives of EU environmental policy as set out in Article 191 TFEU. The failure to comply with the obligation under Article 4 of Directive 75/442 could, by the very nature of that obligation, endanger human health directly and harm the environment and must be regarded as particularly serious (judgment in Commission v Greece , EU:C:2000:356, paragraph 94).
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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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56. The Court has already held in similar circumstances that if the pre‑litigation procedure has attained its objective of protecting the rights of the Member State in question, that Member State, which did not inform the Commission during the pre-litigation procedure that the directive should be regarded as having already been implemented in its domestic law, cannot complain that the Commission has extended or altered the subject-matter of the action as defined by the pre-litigation procedure. According to the Court, the Commission may, after alleging that a Member State has failed to transpose a directive at all, specify in its reply that the implementation pleaded for the first time by the Member State concerned in its defence is in any event incorrect or incomplete so far as certain provisions of the directive are concerned, as such a complaint is necessarily included in the complaint alleging a complete failure to transpose and is subsidiary to that complaint (Case C‑456/03 Commission v Italy [2005] ECR I‑5335, paragraphs 23 to 42, and, in particular, paragraph 40).
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26. However, it should be remembered that while, in proceedings under Article 226 EC for failure to fulfil obligations, it is indeed incumbent upon the Commission, which has the burden of proving the allegation that the obligation has not been fulfilled, to place before the Court the information needed to enable the Court to establish that it has not been fulfilled, in doing which the Commission may not rely on any presumption, it is also for the Member States, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 211 EC, in ensuring that the provisions of the EC Treaty and the measures taken by the institutions pursuant thereto are applied (see, inter alia, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraphs 6 and 7, and Case C-408/97 Commission v Netherlands [2000] ECR I-6417, paragraphs 15 and 16). It is for that reason that Article 15 of the Directive, like other directives, imposes upon the Member States an obligation to provide information.
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50 As regards pharmaceutical products, it follows from the same paragraph in Hoffmann-La Roche that repackaging must be regarded as having been carried out in circumstances not capable of affecting the original condition of the product where, for example, the trade mark owner has placed the product on the market in double packaging and the repackaging affects only the external layer, leaving the inner packaging intact, or where the repackaging is carried out under the supervision of a public authority in order to ensure that the product remains intact.
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36. In this case, there is admittedly a link between the tax reduction for which contributions paid to a savings pension are eligible and the taxation of the savings pension income. Under Article 39/2, 3°, of the CIR 1992, pensions, complementary pensions, annuities, capital sums, savings and surrender values are exempt if they are derived from a savings account or a savings insurance contract in respect of which the tax reduction provided for in Article 145/1, 5°, of that Code has not been granted (see, to that effect, Bachmann , paragraph 21, and Case C‑300/90 Commission v Belgium , paragraph 14).
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14 As regards the need to preserve the cohesion of the tax system at issue, it should be noted that there exists a connection under the Belgian rules between the deductibility of contributions and the liability to tax of sums payable by insurers pursuant to pension or life assurance contracts. According to Article 32a of the CIR, cited above, pensions, annuities, capital sums or surrender values payable under life assurance contracts are exempt from tax where there has been no deduction of contributions under Article 54.
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56. The Court has also held that it follows from the wording of that provision that overlapping occurs not only when one person is entitled to two different family benefits at the same time, but also when two different persons - in this case two parents - are entitled to such benefits in respect of the same child. The spirit of the provisions of Regulation No 1408/71 governing the overlapping of family benefits and the solutions therein provided for in the event of overlapping demonstrate that the aim of the provision in question is to prevent not only the direct recipient of a family benefit, namely the worker, but also the indirect recipients thereof, that is to say the members of the worker’s family, from receiving two benefits of the same kind at the same time (see, to that effect, Case C‑168/88 Dammer EU:C:1989:652, paragraphs 10 and 12).
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49. Concerning the last point, it should, however, be recalled that a prescribing doctor is required, from the point of view of professional conduct, not to prescribe a given medicinal product if it is not appropriate for the therapeutic treatment of his patient, including from the point of view of how it is administered (see Case C‑62/09 Association of the British Pharmaceutical Industry [2010] ECR I‑3603, paragraph 40).
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40. First, a prescribing doctor is required, from the point of view of professional conduct, not to prescribe a given medicinal product if it is not fitting for the therapeutic treatment of his patient, despite the existence of public financial inducements for its prescription.
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21 In those circumstances, the question submitted by the Sozialgericht Stuttgart must be construed as asking whether the loss of social security advantages which the workers concerned incur because conventions between Member States have been rendered inoperative by the entry into force of Regulation No 1408/71 is compatible with Articles 48(2) and 51 of the Treaty.
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57. Given the finding set out in the preceding paragraph, there is no need to rule on the Commission’s claim that the Court should declare that the Italian Republic failed to inform the Commission of the measures referred to in that paragraph, since that Member State did not in fact implement Decision 2006/261 within the time-limits laid down (see Case C‑348/93 Commission v Italy , paragraph 31; Joined Cases C‑485/03 to C‑490/03 Commission v Spain , paragraph 82; Case C‑177/06 Commission v Spain , paragraph 54; Case C‑280/05 Commission v Italy , paragraph 30; and Case C‑214/07 Commission v France , paragraph 67).
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30. La Cour n’a pas à examiner le chef des conclusions visant à condamner la République italienne pour ne pas avoir informé la Commission des mesures prises pour exécuter la décision, étant donné que cet État membre n’a précisément pas procédé à cette exécution dans les délais prescrits (voir arrêts précités du 4 avril 1995, Commission/Italie, point 31, et du 1 er juin 2006, Commission/Italie, point 53).
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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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70. Secondly, it should be borne in mind that, according to the case‑law of the Court, public health establishments and infrastructures may be subject to planning. That may include prior authorisation for the establishment of new service providers, where this proves indispensable for filling in possible gaps in access to public health services and for avoiding the duplication of structures, so as to ensure the provision of public health care which is adapted to the needs of the population, which covers the entire territory and which takes account of geographically isolated or otherwise disadvantaged regions (see, by analogy, Case C‑157/99 Smits and Peerbooms [2001] ECR I‑5473, paragraphs 76 to 80; Case C‑372/04 Watts [2006] ECR I‑4325, paragraphs 108 to 110; and Hartlauer , paragraphs 51 and 52).
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79 For another thing, it assists in meeting a desire to control costs and to prevent, as far as possible, any wastage of financial, technical and human resources. Such wastage is all the more damaging because it is generally recognised that the hospital care sector generates considerable costs and must satisfy increasing needs, while the financial resources which may be made available for health care are not unlimited, whatever the mode of funding applied.
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48. In fact, the allowance is intended to ensure the social protection of the workers concerned, making up for the disadvantages entailed by the posting as a result of the workers being removed from their usual environment.
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65. It is settled case-law that the statement of reasons required by Article 253 EC must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in this connection, Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63, and Case C-265/97 P VBA v Florimex and Others [2000] ECR I‑2061, paragraph 93).
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93 So far as concerns those four grounds of appeal, which it is appropriate to examine together, the Court points out, first, that it is settled case-law that the statement of reasons required by Article 190 of the EC Treaty (now Article 253 EC) must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirement to state reasons must be evaluated according to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63).
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7 THE STAFF REGULATIONS COVER 'OFFICIALS' APPOINTED UNDER THE CONDITIONS PROVIDED FOR THEREIN .
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28. It should be recalled that a Member State which lacks competence retains the possibility of granting family benefits if there are specific and particularly close connecting factors between the territory of that State and the situation at issue, on condition that the predictability and effectiveness of the application of the coordination rules of Regulation No 1408/71 are not disproportionately affected (see, to that effect, Hudzinski and Wawrzyniak , EU:C:2012:339, paragraphs 65 to 67).
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65. Finally, it is true that, in a situation such as that in Bosmann , the residence of the migrant worker and that of the child within the territory of the Member State which lacks competence were specific and particularly close connecting factors, particularly when account is taken of the nature of the benefit at issue.
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29
In that regard, according to the Court’s case-law, in order to determine whether a service is supplied ‘in return for remuneration’, so that the activity in question is to be classified as an economic activity (see, to that effect, the judgment of 26 March 1987 in Commission v Netherlands, 235/85, EU:C:1987:161, paragraph 15), all the circumstances in which it is supplied have to be examined (see, to that effect, judgment of 26 September 1996 in Enkler, C‑230/94, EU:C:1996:352, paragraph 27).
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17. According to the case-law of the Court, the exemptions provided for in Article 13 of the Sixth Directive constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another (see Case C‑349/96 CPP [1999] ECR I‑973, paragraph 15; Case C‑240/99 Skandia [2001] ECR I‑1951, paragraph 23; and Ygeia , paragraph 15).
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15 It must be noted to begin with that it is settled case-law that the exemptions provided for by Article 13 of the Sixth Directive constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another (see Case 348/87 Stichting Uitvoering Financiële Acties v Staatssecretaris van Financiën [1989] ECR 1737, paragraph 11).
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22 IT MUST THEREFORE BE CONCLUDED THAT THE SPECIAL OLD-AGE ALLOWANCE GRANTED TO OLD PERSONS WHOSE INCOME IS INSUFFICIENT FALLS WITHIN THE SCOPE OF REGULATION NO 1612/68 .
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24. It is apparent from the referral decision that, by becoming a member of Brutélé, the Municipality of Uccle entrusted it with the management of its cable television network. It is also apparent that Brutélé’s remuneration comes not from the municipality but from payments made by the users of that network. That method of remuneration is characteristic of a public service concession (Case C-458/03 Parking Brixen [2005] ECR I-8585, paragraph 40).
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40. In the situation referred to in the first question, on the other hand, the service provider’s remuneration comes not from the public authority concerned, but from sums paid by third parties for the use of the car park in question. That method of remuneration means that the provider takes the risk of operating the services in question and is thus characteristic of a public service concession. Therefore, in a situation such as that in the main proceedings, it is not a case of a public service contract, but of a public service concession.
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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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27. That being so, just as Article 58(1) of the Association Agreement with Poland does not preclude the first indent of Article 37(1) of that Agreement from having direct effect (see Pokrzeptowicz-Meyer , cited above, paragraph 28), so Article 59(1) of the Association Agreement with Slovakia does not preclude the first indent of Article 38(1) of that Agreement from having direct effect, given the similarity of the provisions in question.
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28 Nor is the finding that the first indent of Article 37(1) of the Europe Agreement is directly applicable invalidated by an examination of Article 58(1) thereof. All that follows from that provision is that the authorities of the Member States remain competent to apply, while respecting the limits laid down by the Europe Agreement, inter alia their own national laws and regulations regarding entry, stay, employment and working conditions of Polish nationals. Consequently, Article 58(1) does not concern the Member States' implementation of the provisions of the Europe Agreement relating to the free movement of workers and is not intended to make implementation or the effects of the principle of non-discrimination laid down in the first indent of Article 37(1) of the Europe Agreement subject to the adoption of further national measures (see, as regards the provisions of the Europe Agreement concerning establishment, the judgment in Gloszczuk, paragraph 37).
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7. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 17 janvier 2008, Commission/Allemagne, C‑152/05, Rec. p. I‑39, point 15, et du 25 février 2010, Commission/France, C‑170/09, point 6).
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38. As a preliminary point, it should be noted that, according to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that Court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgments in Pohotovosť , C‑470/12, EU:C:2014:101, paragraph 27 and the case-law cited, and Kušionová , C‑34/13, EU:C:2014:2189, paragraph 38).
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38. It should be noted in that respect that, according to the Court’s settled case‑law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment in Pohotovosť , C‑470/12, EU:C:2014:101, paragraph 27 and case-law cited).
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18 It follows that the imposition of residence requirements which are, as has already been established, discriminatory as regards the payment of childbirth allowance constitutes a breach of Article 52 of the Treaty.
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104. Moreover, it should be noted that, having regard to the discretion which Member States enjoy in determining the level of protection of consumers and the social order in the gaming sector, it is not necessary, with regard to the criterion of proportionality, that a restrictive measure decreed by the authorities of one Member State should correspond to a view shared by all the Member States concerning the means of protecting the legitimate interest at issue (see, by analogy, Case C‑518/06 Commission v Italy [2009] ECR I‑3491, paragraphs 83 and 84).
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83. As regards whether the obligation to contract as it is in force in the Italian Republic goes beyond what is necessary to achieve the objective of social protection for victims of road traffic accidents, it must be borne in mind, first of all, that it is not essential, with regard to the proportionality criterion, that a restrictive measure laid down by the authorities of a Member State should correspond to a view shared by all the Member States concerning the means of protecting the legitimate interest at issue.
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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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40
As regards the HS Explanatory Notes, it should be added that, although they do not have legally binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (judgment of 17 March 2016, Sonos Europe, C‑84/15, EU:C:2016:184, paragraph 33 and the case-law cited).
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33
As regards the Explanatory Notes to the HS, it should be added that, although they do not have legally binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (see, to that effect, judgments in Kloosterboer Services, C‑173/08, EU:C:2009:382, paragraph 25, and Agroferm, C‑568/11,EU:C:2013:407, paragraph 28). The same is true of the Explanatory Notes of the CN (see, to that effect, judgments in Develop Dr. Eisbein, C‑35/93, EU:C:1994:252, paragraph 21, and British Sky Broadcasting Group and Pace, C‑288/09 and C‑289/09, EU:C:2011:248, paragraph 92).
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20. Football Dataco and Others claim that they own, in respect of the English and Scottish football league fixture lists, a ‘sui generis’ right pursuant to Article 7 of Directive 96/9, a copyright pursuant to Article 3 of that directive, and a copyright under United Kingdom intellectual property legislation.
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23. It is true that in Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraphs 21 to 24, the Court held that a term, drafted in advance by the seller, the purpose of which is to confer jurisdiction in respect of all disputes arising under the contract on the court in the territorial jurisdiction of which the seller has his principal place of business, satisfies all the criteria necessary for it to be judged unfair for the purposes of the Directive. Nevertheless, that assessment was reached in relation to a term which was solely to the benefit of the seller and contained no benefit in return for the consumer. Whatever the nature of the contract, it thereby undermined the effectiveness of the legal protection of the rights which the Directive affords to the consumer. It was thus possible to hold that the term was unfair without having to consider all the circumstances in which the contract was concluded and without having to assess the advantages and disadvantages that that term would have under the national law applicable to the contract.
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21 First, it should be noted that, where a term of the kind at issue in the main proceedings has been included in a contract concluded between a consumer and a seller or supplier within the meaning of the Directive without being individually negotiated, it satisfies all the criteria enabling it to be classed as unfair for the purposes of the Directive.
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25. Next, in so far as Regulation No 44/2001 now replaces the Brussels Convention in relations between Member States, the interpretation given by the Court concerning the provisions of that convention is also valid for those of that regulation in so far as the provisions of those instruments may be regarded as equivalent (see, to that effect, judgments in Sunico and Others , C‑49/12, EU:C:2013:545, paragraph 32 and the case-law cited, and Brogsitter , C‑548/12, EU:C:2014:148, paragraph 19 and the case-law cited).
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22. The Court has also held that it was in order to take account of differences in Member States’ assessments that Article 19 of Regulation No 1768/92 set, as a transitional measure, different relevant dates for different Member States as regards the obtaining of the first marketing authorisation, the setting of such dates thus appearing to be justified inasmuch as each of them reflects the assessment made by each Member State in the light, in particular, of its health system, the organisation and financing of which vary from one Member State to the next (see, to this effect, Hässle , paragraphs 39 and 40). That provision therefore reflects the result of negotiations and establishes specific mechanisms for different Member States.
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39. It is in order to take account of those different criteria that Article 19 of Regulation No 1768/92 made transitional provision for different relevant dates.
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11 In contrast, the directive does not regulate the sale of foodstuffs complying with its requirements in respect of labelling and does not therefore impose any obligation on Member States where, as in the present case, there is a sale of products which comply with the directive but whose use-by date has expired.
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50 It is true that the Court held in Emmott, at paragraph 23, that until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.
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23 It follows that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual' s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.
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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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23. The overall impression conveyed to the relevant public by a composite trade mark may, in certain circumstances, be dominated by one or more of its components. However, it is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element ( OHIM v Shaker EU:C:2007:333, paragraphs 41 and 42, and Nestlé v OHIM EU:C:2007:539, paragraphs 42 and 43 and the case-law cited).
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41. It is important to note that, according to the case-law of the Court, in the context of consideration of the likelihood of confusion, assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see order in Matratzen Concord v OHIM , paragraph 32; Medion , paragraph 29).
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539 IF SUCH AN AGENT WORKS FOR HIS PRINCIPAL HE CAN IN PRINCIPLE BE REGARDED AS AN AUXILIARY ORGAN FORMING AN INTEGRAL PART OF THE LATTER'S UNDERTAKING BOUND TO CARRY OUT THE PRINCIPAL'S INSTRUCTIONS AND THUS, LIKE A COMMERCIAL EMPLOYEE, FORMS AN ECONOMIC UNIT WITH THIS UNDERTAKING .
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27. As is clear from established case‑law, the imposition of a penalty payment pursuant to Article 228 EC, the purpose of which, as reiterated by the Court on numerous occasions, is one of coercion with regard to the ongoing failure to comply (see, inter alia, Case C‑387/97 Commission v Greece [2000] ECR I‑5047, paragraphs 90 and 92), is, in principle, justified only in so far as the failure to comply with an earlier judgment of the Court persists (see, inter alia, to that effect, Case C‑119/04 Commission v Italy [2006] ECR I‑6885, paragraphs 45 and 46, and Commission v Germany , paragraph 40).
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40. Although, with regard to the contract concluded by the City of Brunswick, it must therefore be held that the Federal Republic of Germany had not, as at 1 June 2004, adopted the measures to implement the judgment in Joined Cases C‑20/01 and C‑28/01 Commission v Germany , the same is not, however, true at the date of examination of the facts by the Court. It follows that the imposition of the periodic penalty payment, which the Commission is in fact no longer requesting, is not justified.
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38. That finding is not affected by the statement, entered in the minutes of the Council meeting, to the effect that the substantive questions of competence and exercise of voting rights in matters coming under the future Agreement have not been settled. Such a statement cannot be used for the purpose of determining the scope of the Council ' s decision where no reference is made to the content of that statement in the text of the decision in question and therefore has no legal significance (see Case C-292/89 The Queen v Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR I-745, paragraph 18).
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53. Article 35(1) EU, in that it does not enable national courts to refer a question to the Court for a preliminary ruling on a common position but only a question concerning the acts listed in that provision, treats as acts capable of being the subject of such a reference for a preliminary ruling all measures adopted by the Council and intended to produce legal effects in relation to third parties. Given that the procedure enabling the Court to give preliminary rulings is designed to guarantee observance of the law in the interpretation and application of the Treaty, it would run counter to that objective to interpret Article 35(1) EU narrowly. The right to make a reference to the Court of Justice for a preliminary ruling must therefore exist in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties (see, by analogy, Case 22/70 Commission v Council ( ERTA ) [1971] ECR 263, paragraphs 38 to 42, and Case C-57/95 France v Commission [1997] ECR I‑1627, paragraph 7 et seq.).
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41 IT WOULD BE INCONSISTENT WITH THIS OBJECTIVE TO INTERPRET THE CONDITIONS UNDER WHICH THE ACTION IS ADMISSIBLE SO RESTRICTIVELY AS TO LIMIT THE AVAILABILITY OF THIS PROCEDURE MERELY TO THE CATEGORIES OF MEASURES REFERRED TO BY ARTICLE 189 .
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26. In that respect, even if ‘securities normally dealt in on the money market’ fall within List D, Item VI of that annex, the First Directive does not lay down any definition of that term. On the other hand, the First Directive refers to ‘securities dealt in on a stock exchange’ in List B, Item IV A of the same annex and in the Explanatory Notes, which do lay down a definition thereof. According to those notes, which should be regarded as forming an integral part of that directive (see Case 143/86 East and Others [1988] ECR 625, paragraph 11), ‘securities dealt in on a stock exchange’ are ‘securities the dealings in which are controlled by regulations, and prices for which are regularly published, either by official stock exchanges (quoted securities) or by other bodies attached to a stock exchange, for example committees of banks (unquoted securities)’. As the Commission points out, that definition means that the Community legislature accorded importance to the rules of operation of the stock market, in particular on the basis of the provisions guaranteeing the transparency of the operation of the stock market and the publication of prices of securities dealt in.
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18. In that regard, it is clear from the case-law that that activity is characterised by the fact that, in most cases, the services provided by such undertakings consist of multiple services, in particular transport and accommodation, supplied partly outside and partly inside 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 (see Madgett and Baldwin , paragraph 18, and First Choice Holidays , paragraph 24).
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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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81. The fact that it is difficult to adduce the evidence necessary to rebut a presumption does not in itself mean that that presumption is in fact irrebuttable, especially where the entities against which the presumption operates are those best placed to seek that evidence within their own sphere of activity ( Elf Aquitaine v Commission , paragraph 70).
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57
According to settled case-law, the appropriate assessment of the implications of the plan or project for the site concerned that must be carried out pursuant to Article 6(3) of the Habitats Directive requires that all the aspects of the plan or project which could, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified in the light of the best scientific knowledge in the field (judgment of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraph 49 and the case-law cited).
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49
According to settled case-law, the appropriate assessment of the implications for the site that must be carried out pursuant to Article 6(3) implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field (see, to that effect, judgments in Commission v France, C‑241/08, EU:C:2010:114, paragraph 69; Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 99, and Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraphs 112 and 113).
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16. The public interest relating to the social protection of workers in the construction industry may however, because of conditions specific to that sector, constitute an overriding requirement justifying such a restriction on the freedom to provide services.
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80. As a preliminary point, it is appropriate to observe, first, that the purpose of Article 2 of the Directive is to define the types of signs of which a trade mark may consist (Case C-273/00 Sieckmann [2002] ECR I-11737, paragraph 43), irrespective of the goods or services for which protection might be sought (see to that effect Sieckmann , paragraphs 43 to 55, Libertel , paragraphs 22 to 42, and Case C-283/01 Shield Mark [2003] ECR I-0000, paragraphs 34 to 41). It provides that a trade mark may consist inter alia of " words" and " letters" , provided that they are capable of distinguishing the goods or services of one undertaking from those of other undertakings.
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35. A description in words of the colour will not necessarily satisfy the conditions set out in paragraphs 28 and 29 of this judgment in every instance. That is a question which must be evaluated in the light of the circumstances of each individual case.
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48. However, it must be held that the wording of Article 15(1) of Regulation No 44/2001, the interpretation of which is sought by the national court in the present reference for a preliminary ruling, is not identical in every respect to that of the first paragraph of Article 13 of the Brussels Convention.
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42. Par ailleurs, quant à l’éventuel lien de dépendance entre le CSRSE et la Commission, il suffit de relever que, dans le cadre d’une demande de maintien des dispositions nationales au titre de l’article 114, paragraphe 4, TFUE, il incombe à la Commission d’apprécier elle-même le bien-fondé de cette demande (voir, en cens, arrêt Pays-Bas/Commission, C‑405/07 P, EU:C:2008:613, point 67). Il en découle que, si rien ’ne s’oppose à ce que la Commission, pour ce faire, recueille l’avis d’experts ou à d’organismes disposant des ’qualifications nécessaires, il n’est cependant pas indispensable que lesdits experts ou organismes soient indépendants vis-à-vis d’elle. En tout état de cause, il y a lieu d’ajouter que la République fédérale d’Allemagne n’a apporté aucun élément susceptible de démontrer que le CSRSE n’aurait pas adopté son avis en toute indépendance et en toute impartialité.
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67. In fact, while the Court of Justice has recognised that the Commission, as part of its assessment of the merits of a request for derogation under Article 95(5) EC, may have to have recourse to outside experts in order to obtain their advice on new scientific evidence adduced in support of such request (see Land Oberösterreich and Austria v Commission , paragraph 32), the primary responsibility for making that assessment rests on the Commission, which must itself, if appropriate on the basis of the experts’ advice, properly take account of all the relevant evidence and explain, in its final decision, the essential considerations which led it to adopt that decision.
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41. The only places which have a direct link to those services, provided in performance of obligations linked to the subject-matter of the contract, are those of the departure and arrival of the aircraft, since the words ‘places of departure and arrival’ must be understood as agreed in the contract of carriage in question, made with one sole airline which is the operating carrier.
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48. Furthermore, it must be recalled that the objective of the exemptions contained in Directive 92/83 is, in particular, to neutralise the impact of excise duties on alcohol used as an intermediate product in other commercial or industrial products (see Italy v Commission , paragraph 4, and Case C‑63/06 Profisa [2007] ECR I‑3239, paragraph 17).
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17. Furthermore, the objective pursued by the exemptions contained in Directive 92/83 is, in particular, to neutralise the impact of excise duties on alcohol used as an intermediate product in other commercial or industrial products ( Italy v Commission , paragraph 4).
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15 On this issue the Court must find that the only matters at issue at the pre-litigation stage were Condition 6, Clause 2, of the general conditions, that is to say, the Danish content clause, and the commencement of negotiations on the basis of a tender which did not comply with Condition 3, Clause 3, of those conditions, concerning the tenderer' s responsibilities where an alternative project was tendered for.
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51. It follows that, in the absence of any claim that the court other than the court first seised had exclusive jurisdiction in the main proceedings, the Court has simply declined to prejudge the interpretation of Article 21 of the Brussels Convention in the hypothetical situation which it specifically excluded from its judgment (Case C‑116/02 Gasser [2003] ECR I‑14693, paragraph 45, and Case C‑1/13 Cartier parfums — lunettes and Axa Corporate Solutions Assurances [2014] ECR, paragraph 26).
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26. Furthermore, it must be observed that nothing in the documents before the Court suggests that the main proceedings fall within an exclusive head of jurisdiction laid down in Article 22 of Regulation No 44/2001. The Court’s ruling does not, therefore, have to cover cases in which the court second seised has such exclusive jurisdiction (see, to that effect, Case C‑351/89 Overseas Union Insurance and Others [1991] ECR I‑3317, paragraph 20).
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163. None the less, the interpretation of those conditions must enable the effectiveness of the exception thereby established to be safeguarded and permit observance of the exception’s purpose as resulting in particular from recital 31 in the preamble to the Copyright Directive and from Common Position (EC) No 48/2000 adopted by the Council on 28 September 2000 with a view to adopting that directive (OJ 2000 C 344, p. 1).
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194
In that regard, while it is true that questions referred for a preliminary ruling on EU law enjoy a presumption of relevance (judgment of 28 July 2011, Lidl & Companhia, C‑106/10, EU:C:2011:526, paragraph 25 and the case-law cited), it must be emphasised that, in accordance with settled case-law, the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgment of 20 January 2005, García Blanco, C‑225/02, EU:C:2005:34, paragraph 28 and the case‑law cited).
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28. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute ( Djabali , paragraph 19; Bacardi-Martini and Cellier des Dauphins , paragraph 42; and Joined Cases C‑480/00 to C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00 Azienda Agricola Ettore Ribaldi and Others [2004] ECR I‑0000, paragraph 72).
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38 FURTHERMORE THE PARLIAMENT IS AUTHORIZED , PURSUANT TO THE POWER TO DETERMINE ITS OWN INTERNAL ORGANIZATION GIVEN TO IT BY ARTICLE 25 OF THE ECSC TREATY , ARTICLE 142 OF THE EEC TREATY AND ARTICLE 112 OF THE EAEC TREATY , TO ADOPT APPROPRIATE MEASURES TO ENSURE THE DUE FUNCTIONING AND CONDUCT OF ITS PROCEEDINGS . HOWEVER , IN ACCORDANCE WITH THE ABOVE-MENTIONED MUTUAL DUTIES OF SINCERE COOPERATION , THE DECISIONS OF THE PARLIAMENT IN TURN MUST HAVE REGARD TO THE POWER OF THE GOVERNMENTS OF THE MEMBER STATES TO DETERMINE THE SEAT OF THE INSTITUTIONS AND TO THE PROVISIONAL DECISIONS TAKEN IN THE MEANTIME .
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29. It should be stated at the outset that it is for the national court alone to determine the subject-matter of the questions which it wishes to refer to the Court. The Court cannot, at the request of one party to the main proceedings, examine questions which have not been submitted to it by the national court. If, in view of developments in the proceedings, the national court were to consider it necessary to obtain further interpretations of Community law, it would be for that court to make a fresh reference to the Court (see in particular Case 311/84 CBEM [1985] ECR 3261, paragraph 10, and Case C-189/95 Franzén [1997] ECR I-5909, paragraph 79).
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79 In this regard, it must be reiterated that, under the division of jurisdiction provided for by Article 177 of the Treaty in preliminary ruling proceedings, it is for the national court alone to determine the subject-matter of the questions which it wishes to refer to the Court. The Court cannot, at the request of one party to the main proceedings, examine questions which have not been submitted to it by the national court. If, in view of the course of the proceedings, the national court were to consider it necessary to obtain further interpretations of Community law, it would be for it to make a fresh reference to the Court (Case 311/84 CBEM v CLT and IPB [1985] ECR 3261, paragraph 10; Case C-337/88 SAFA v Amministrazione della Finanze dello Stato [1990] ECR I-1, paragraph 20; and Case C-196/89 Nespoli and Crippa [1990] ECR I-3647, paragraph 23).
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37. Il convient de rappeler, à cet égard, que la Cour a jugé qu’aucune disposition du droit communautaire n’exige que la Commission, lorsqu’elle ordonne la restitution d’une aide déclarée incompatible avec le marché commun, fixe le montant exact de l’aide à restituer. Il suffit que la décision de la Commission comporte des indications permettant à son destinataire de déterminer lui-même, sans difficultés excessives, ce montant (arrêts du 12 octobre 2000, Espagne/Commission, C‑480/98, Rec. p. I‑8717, point 25; du 12 mai 2005, Commission/Grèce, précité, point 39, et du 18 octobre 2007, Commission/France, C‑441/06, non encore publié au Recueil, point 29).
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15 Although the judgment in Schindler relates to the organisation of lotteries, those considerations are equally applicable - as is apparent, moreover, from the very wording of paragraph 60 of that judgment - to other comparable forms of gambling.
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58 Those considerations, which must be taken together, concern the protection of the recipients of the service and, more generally, of consumers as well as the maintenance of order in society. The Court has already held that those objectives figure among those which can justify restrictions on freedom to provide services (see the judgments in Joined Cases 110 and 111/78 Ministère Public v Van Wesemael [1979] ECR 35, at paragraph 28; Case 220/83 Commission v France [1986] ECR 3663, at paragraph 20; Case 15/78 Société Générale Alsacienne de Banque v Koestler [1978] ECR 1971, at paragraph 5).
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47. An analysis of the context in which Article 32(1) of the Visa Code appears therefore indicates that the competent authorities of the Member States cannot refuse to issue a uniform visa by relying on a ground not provided for in that code.
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81. For an argument based on such a justification to succeed, the Court requires a direct link to be established between the tax advantage concerned and the offsetting of that advantage by a particular tax, and the directness of that link to be assessed with regard to the purpose of the legislation at issue (see, to that effect, judgments in Papillon , C‑418/07, EU:C:2008:659, paragraphs 43 and 44; Commission v Germany , C‑211/13, EU:C:2014:2148, paragraph 55; and Grünewald , C‑559/13, EU:C:2015:109, paragraph 47).
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47. Since no direct link has been established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy, the legislation at issue cannot be justified by the need to preserve the coherence of the national tax regime.
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21 As the Advocate General notes at point 27 of his Opinion, by compensating farmers who undertake to cease their milk production, the Community does not acquire goods or services for its own use but acts in the common interest of promoting the proper functioning of the Community milk market.
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54. In that regard, it is established case-law that the lawfulness of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (see, inter alia, Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 16; Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraph 168; and Case C-276/02 Spain v Commission [2004] ECR I‑8091, paragraph 31).
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31. The legality of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (see, inter alia, Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 16, and Case C-241/94 France v Commission [1996] ECR I-4551, paragraph 33).
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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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20. It should be borne in mind that Article 9 of the Sixth Directive contains rules for determining the place where services are deemed to be supplied for VAT purposes. Whereas Article 9(1) lays down a general rule in that regard, Article 9(2) sets out a number of specific instances of places where certain services are deemed to be supplied. The object of those provisions is to avoid, first, conflicts of jurisdiction which may result in double taxation, and, secondly, non-taxation (Case 168/84 Berkholz [1985] ECR 2251, paragraph 14; Case C‑327/94 Dudda [1996] ECR I‑4595, paragraph 20; and Case C‑291/07 Kollektivavtalsstiftelsen TRR Trygghetsrådet [2008] ECR I‑0000, paragraph 24).
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20 As regards the relationship between Article 9(1) and Article 9(2), the Court has already held that Article 9(2) sets out a number of specific instances of places where certain services are deemed to be supplied, whereas Article 9(1) lays down the general rule on the matter. The object of those provisions is to avoid, first, conflicts of jurisdiction, which may result in double taxation, and, secondly, non-taxation, as Article 9(3) indicates, albeit only as regards specific situations (Case 168/84 Berkholz v Finanzamt Hamburg-Mitte-Altstadt [1985] ECR 2251, paragraph 14).
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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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22 As far as that argument is concerned, it must be recalled that, as the Court held in paragraph 26 of its judgment in Case C-21/94 Parliament v Council, cited above, proper consultation of the Parliament in the cases provided for by the Treaty constitutes one of the means enabling it to play an effective role in the legislative process of the Community; to accept the Council's argument would result in seriously undermining that essential participation in the maintenance of the institutional balance intended by the Treaty and would amount to disregarding the influence that due consultation of the Parliament can have on adoption of the measure in question.
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26 Proper consultation of the Parliament in the cases provided for by the Treaty constitutes one of the means enabling it to play an effective role in the legislative process of the Community (see, in particular, the judgment in Case C-316/91 Parliament v Council [1994] ECR I-625, paragraph 17); to accept the Council's argument would result in seriously undermining that essential participation in the maintenance of the institutional balance intended by the Treaty and would amount to disregarding the influence that due consultation of the Parliament can have on adoption of the measure in question.
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37 Obviously those formalities include the lodging and immediate acceptance of a customs declaration under Article 59(1) and Article 63 of the Customs Code, but they must also be taken to include application of the measures referred to in Article 68 of the Customs Code, which entitles the customs authorities, when verifying the declarations which they have accepted, to carry out, inter alia, an examination of the goods (which may involve the taking of samples for analysis or detailed examination).
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72. Accordingly, goods subject to excise duty must be regarded as having entered the territory of the Community for the purposes of Article 5(1) of the Excise Duty Directive as of the moment they go beyond the area in which the first customs office is situated inside the customs territory of the Community (see, by analogy, Elshani , paragraph 25).
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25. It follows, as the Commission of the European Communities correctly contends, that the unlawful introduction of goods is completed at the moment at which those goods go beyond the first customs office situated inside the customs territory of the Community without those goods having been presented there.
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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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27. It is true that it is for each Member State to organise, in compliance with European Union law, its system for taxing distributed profits. However, where national tax legislation establishes a distinguishing criterion for the taxation of distributed profits, account must be taken of that criterion in determining whether the situations are comparable (see, to that effect, Case C‑170/05 Denkavit Internationaal and Denkavit France [2006] ECR I‑11949, paragraphs 34 and 35; Case C‑303/07 Aberdeen Property Fininvest Alpha [2009] ECR I‑5145, paragraphs 51 to 54; Case C‑540/07 Commission v Italy [2009] ECR I‑10983, paragraph 43; and Case C‑284/09 Commission v Germany [2011] ECR I‑9879, paragraph 60).
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43. In dismissing that argument, it is sufficient to point out that it amounts to comparing regimes and situations which are not comparable, namely, on the one hand, physical persons who receive dividends and their income tax regime, and on the other, capital companies receiving outgoing dividends and the withholding at source which is levied by the Italian Republic. It is irrelevant in that respect that, according to the Italian Republic, the Italian legislation is designed to correct a possible imbalance at the level of the taxation of physical persons who hold shares in the companies to which the dividends are paid.
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49 As the Court has held on numerous occasions, it is clear from that provision, when examined in the light of the aims of the directive, that two conditions must be fulfilled in order for the exemption to apply: the activities must be carried out by a body governed by public law and they must be carried out by that body acting as a public authority (see, in particular, Case C-202/90 Ayuntamiento de Sevilla v Recaudadores de Tributos de las Zonas Primera y Segunda [1991] ECR I-4247, paragraph 18).
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39
That analysis cannot be altered by the mere fact that the proprietor’s mark and that affixed to the product whose import that proprietor seeks to prohibit originally belonged to the same proprietor, irrespective of whether the division of those marks results from expropriation, and thus an act of public authority, or voluntary contractual assignment, on condition, however, that, notwithstanding their common origin, each of those marks has, from the date of expropriation or assignment, independently fulfilled its function, within its own territorial field of application, of guaranteeing that the trade marked goods originate from one single source (see, to that effect, judgments of 17 October 1990, HAG GF, C‑10/89, EU:C:1990:359, paragraphs 17 and 18, and of 22 June 1994, IHT Internationale Heiztechnik and Danziger, C‑9/93, EU:C:1994:261, paragraphs 46 to 48).
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18 From the date of expropriation and notwithstanding their common origin, each of the marks independently fulfilled its function, within its own territorial field of application, of guaranteeing that the marked products originated from one single source .
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41. As regards, secondly, the principle of fiscal neutrality, it must be remembered that that principle precludes, in particular, treating similar supplies of services, which are thus in competition with each other, differently for VAT purposes (see, to that effect, Case C-141/00 Kügler [2002] ECR I‑6833, paragraph 30, and Case C‑109/02 Commission v Germany [2003] ECR I‑12691, paragraph 20).
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28 It is settled case-law (see, inter alia, Case 6/64 Costa [1964] ECR 585, at p. 593, Case 13/78 Eggers [1978] ECR 1935, paragraph 19, and Joined Cases 141/81, 142/81 and 143/81 Holdijk and Others [1982] ECR 1299, paragraph 8) that it is not for the Court, in proceedings brought under Article 177 of the EC Treaty, to rule on the compatibility of provisions of national law with Community law. The Court does, however, have jurisdiction to provide the national court with all such factors relating to the interpretation of Community law as may enable that court to determine the compatibility of those provisions with Community law.
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8 AS REGARDS THE WORDING OF THE QUESTION , IT SHOULD BE NOTED THAT IT IS NOT FOR THE COURT , IN PROCEEDINGS UNDER ARTICLE 177 OF THE TREATY , TO ADJUDICATE UPON THE COMPATIBILITY OF EXISTING OR PROPOSED NATIONAL RULES WITH COMMUNITY LAW BUT ONLY UPON THE INTERPRETATION AND VALIDITY OF COMMUNITY LAW . IT IS APPROPRIATE THEREFORE TO REGARD THE QUESTION SUBMITTED AS ASKING WHETHER COMMUNITY LAW MUST BE INTERPRETED AS MEANING THAT A MEMBER STATE MAY NOT , WITH A VIEW TO THE PROTECTION OF ANIMALS , MAINTAIN OR INTRODUCE UNILATERAL RULES CONCERNING ENCLOSURES FOR FATTING CALVES .
THE ANSWER TO BE GIVEN
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35. Next, the request must relate to all sections of the tender which require clarification (see, to that effect, SAG ELV Slovensko and Others , paragraph 44).
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29. Admittedly, since the commencement of this action, the French authorities have amended Law No 85‑704 by allowing the agency of delegated project contracting henceforth to be entrusted to any public or private person, thus abolishing the requirement that the agent be a legal person under French law. It is appropriate none the less to point out that the question whether a Member State has failed to fulfil its obligations must be determined with reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, among others, Case C‑63/02 Commission v United Kingdom [2003] ECR I-821, paragraph 11, and Case C‑313/03 Commission v Italy , not published in the ECR, paragraph 9). The Court cannot take account of any subsequent changes (see, among others, Case C‑482/03 Commission v Ireland , not published in the ECR, paragraph 11, and Case C-341/02 Commission v Germany [2005] ECR I‑2733, paragraph 33).
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11. However, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia , Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26).
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35. As a general rule, recourse to the criterion of length of service is appropriate to attain that objective. Length of service goes hand in hand with experience, and experience generally enables the worker to perform his duties better.
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11 IT MUST THEN BE OBSERVED THAT, AS THE COURT RECALLED IN ITS JUDGMENT OF 13 MARCH 1986 IN CASE 296/84 SINATRA V FNROM (( 1986 )) ECR 1047, PARAGRAPH 19, UNDER ARTICLE 40 ( 1 ) OF REGULATION NO 1408/71, ARTICLE 46, INCLUDING THE ANTI-OVERLAPPING RULE CONTAINED IN PARAGRAPH ( 3 ) THEREOF, IS APPLICABLE BY ANALOGY TO INVALIDITY BENEFITS WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES, AND THE LEGISLATION OF AT LEAST ONE OF THOSE MEMBER STATES MAKES THE AMOUNT OF THE BENEFITS DEPENDENT ON THE LENGTH OF THE INSURANCE PERIODS . ARTICLE 46 APPLIES, THEREFORE, IN CASES IN WHICH THE WORKER IS SUBJECT TO TWO BODIES OF LEGISLATION, ONE OF WHICH MAKES THE AMOUNT OF THE BENEFITS DEPENDENT UPON THE LENGTH OF THE INSURANCE PERIODS (" TYPE B" LEGISLATION ) WHEREAS THE OTHER DOES NOT, PROVIDED THAT THE MINIMUM QUALIFYING PERIOD FOR ENTITLEMENT TO THE BENEFIT HAS BEEN COMPLETED (" TYPE A" LEGISLATION ). ALTHOUGH IN SUCH CASES THE OVERLAPPING DOES NOT DERIVE FROM A DUPLICATION OF INSURANCE PERIODS, ARTICLE 46 APPLIES . THIS SHOWS THAT ARTICLE 46 ( 3 ) APPLIES WHERE THE SUM OF THE BENEFITS CONCERNED EXCEEDS THE CEILING LAID DOWN THEREIN, EVEN IF THE EXCEEDING OF THAT CEILING IS NOT DUE TO THE DUPLICATION OF INSURANCE PERIODS .
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19 IT SHOULD BE RECALLED THAT , UNDER ARTICLE 40 ( 1 ) OF REGULATION NO 1408/71 , ARTICLE 46 IS APPLICABLE BY ANALOGY TO INVALIDITY BENEFITS WHERE A WORKER HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES , AND THE LEGISLATION OF AT LEAST ONE OF THOSE MEMBER STATES MAKES THE AMOUNT OF THE BENEFITS DEPENDENT ON THE LENGTH OF THE INSURANCE PERIODS . ARTICLE 46 ( 1 ) PROVIDES FOR A COMPARISON BETWEEN , ON THE ONE HAND , THE AMOUNT REFERRED TO IN THE FIRST SUBPARAGRAPH THEREOF , NAMELY THE AMOUNT OF THE BENEFIT ACCRUING BY VIRTUE OF THE PROVISIONS OF THE NATIONAL LEGISLATION CONCERNED AND CORRESPONDING TO THE TOTAL LENGTH OF THE INSURANCE PERIODS OR RESIDENCE PERIODS TO BE TAKEN INTO ACCOUNT UNDER THAT LEGISLATION AND , ON THE OTHER HAND , THE AMOUNT OF BENEFIT OBTAINED BY APPLYING THE RULES LAID DOWN IN ARTICLE 46 ( 2 ) ( A ) AND ( B ). ONLY THE HIGHER AMOUNT IS SELECTED , IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 46 ( 1 ).
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49. Pour autant que le Royaume de Belgique fait état d’un projet d’arrêté royal ayant pour objet de rendre la réglementation en cause conforme aux articles 56 TFUE et 36 de l’accord EEE, il suffit de rappeler qu’il est de jurisprudence constante que l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts Commission/Grèce, C‑351/13, EU:C:2014:2150, point 20; Commission/Belgique, C‑317/14, EU:C:2015:63, point 34, et Commission/France, C‑485/14, EU:C:2015:506, point 30).
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33. Consequently, where the questions submitted by the national court concern the interpretation of European Union law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38, and Case C‑103/08 Gottwald [2009] ECR I‑9117, paragraph 16).
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16. In that regard, it should be borne in mind that, in accordance with settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of Community law, the Court of Justice is bound, in principle, to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑18/01 Korhonen and Others [2003] ECR I‑5321, paragraph 19; and Case C‑295/05 Asemfo [2007] ECR I‑2999, paragraph 30).
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13 The third recital in the preamble to Regulation No 857/84 stipulates: "the Member States should be enabled to adapt the reference quantities to take into account the special situations of certain producers and to establish for this purpose, as necessary, a reserve within the abovementioned guaranteed quantity".
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85. In this respect, the Court has had occasion to rule that the exception in the first paragraph of Article 45 EC does not extend to certain activities that are auxiliary or preparatory to the exercise of official authority (see, to that effect, Thijssen , paragraph 22; Commission v Spain , paragraph 38; Servizi Ausiliari Dottori Commercialisti , paragraph 47; Commission v Germany , paragraph 38; and Commission v Portugal , paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, Reyners , paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, Thijssen , paragraphs 21 and 22; Case C‑393/05 Commission v Austria , paragraphs 36 and 42; Commission v Germany , paragraphs 38 and 44; and Commission v Portugal , paragraphs 36 and 41), powers of constraint (see, to that effect, inter alia, Commission v Spain , paragraph 37) or powers of coercion (see, to that effect, Case C‑47/02 Anker and Others [2003] ECR I‑10447, paragraph 61, and Commission v Portugal , paragraph 44).
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53 THE EXERCISE OF THESE ACTIVITIES LEAVES THE DISCRETION OF JUDICIAL AUTHORITY AND THE FREE EXERCISE OF JUDICIAL POWER INTACT .
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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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43 The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 25 and 26, Case 113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke and Benteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council [1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 9).
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9 The applicant is directly concerned by the contested measures because Regulation No 962/88 requires the national authorities to reject pending applications for import licences and thus leaves them no discretion .
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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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92 Given the Community institutions' wide discretion in the application of Article 109 of the OCT Decision, and the fact that that discretion can be exercised not only in relation to the nature and scope of the provisions which are to be adopted but also, to a certain extent, to the findings as to the basic facts (see, to that effect, Case C-150/94 United Kingdom v Council [1998] ECR I-7235, paragraph 55, and Case C-289/97 Eridania [2000] ECR I-5409, paragraph 48), it cannot be concluded that the Council committed a manifest error in its assessment of the information available to it when Regulation No 304/97 was adopted.
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48 In that connection, when the implementation by the Council of the agricultural policy in the sugar sector involves the need to evaluate a complex economic situation, the discretion which it has does not apply exclusively to the nature and scope of the measures to be taken but also to some extent to the finding of the basic facts (see Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 25, and Case C-285/94 Italy v Commission [1997] ECR I-3519, paragraph 23).
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51. It follows that, at the time of the Directive’s adoption, disparities existed between national rules on advertising and sponsorship in respect of tobacco products which justified intervention by the Community legislature.
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28. Questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, the judgment in Fish Legal and Shirley , EU:C:2013:853, paragraph 30 and the case-law cited).
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30. Les questions relatives à l’interprétation du droit de l’Union posées par le juge national dans le cadre réglementaire et factuel qu’il définit sous sa responsabilité, et dont il n’appartient pas à la Cour de vérifier l’exactitude, bénéficient d’une présomption de pertinence. Le refus de la Cour de statuer sur une demande de décision préjudicielle formée par une juridiction nationale n’est possible que s’il apparaît de manière manifeste que l’interprétation sollicitée du droit de l’Union n’a aucun rapport avec la réalité ou l’objet du litige au principal, lorsque le problème est de nature hypothétique ou encore lorsque la Cour ne dispose pas des éléments de fait et de droit nécessaires pour répondre de façon utile aux questions qui lui sont posées (voir, notamment, arrêt MA e.a., précité, point 37 et jurisprudence citée).
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20. As regards the question of what period is to be considered ‘reasonable’, it should also be pointed out that the Court has already held that a two-year time-limit cannot, in itself, render the exercise of the right to deduct virtually impossible or excessively difficult, since Article 18(2) of the Sixth Directive allows Member States to require that the taxable person exercise his right to deduct during the same period as that in which it arose (see Ecotrade , paragraph 48).
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26. The Court has also had occasion to make it clear that classification by the customs authorities of an act as ‘an act that could give rise to criminal court proceedings’ does not constitute a finding that an infringement of criminal law has actually been committed. That classification is made only in the context and for the purposes of an administrative procedure whose sole purpose is to enable those authorities to make good incorrect or insufficient collection of import or export duties (see by analogy, in relation to Article 3 of Regulation No 1697/79, Case C‑62/06 ZF Zefeser [2007] ECR I‑11995, paragraph 28).
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28. Classification by the customs authorities of an act as ‘an act that could give rise to criminal court proceedings’ does not constitute a finding that an infringement of criminal law has actually been committed (see, to that effect, Meico-Fell , paragraph 9). As is clear from recitals one and two in the preamble to Regulation No 1697/79, that classification is made only in the context and for the purposes of an administrative procedure whose sole purpose is to enable those authorities to make good incorrect or insufficient collection of import or export duties.
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61. Without there being any need to rule on the applicability of the directive at the place where the ship sank, it suffices to observe that the hydrocarbons thus accidentally spilled drifted along the coast until they were washed up on it, so being discharged on the Member State’s land territory.
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54. In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (Case C‑301/96 Germany v Commission [2003] ECR I‑9919, paragraph 89, and Case C‑42/01 Portugal v Commission [2004] ECR I‑6079, paragraphs 69 and 70).
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69. Moreover, as the Advocate General emphasises in paragraph 68 of his Opinion, the contested decision was adopted in a context that was well known to the Portuguese Government, namely in the context of the proceeding for failure to fulfil obligations which led to the judgment in Commission v Portugal cited above, and the Portuguese Government has not supplied the least indication to the Commission as to the compatibility of the public interests protected by the measures concerned with Community law, even in reply to the Commission’s letter of 21 September 2000.
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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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24. However, in arriving at that conclusion, the Court of First Instance interpreted the concept of excusable error, as it has been developed in the case-law of the Court of Justice, in an excessively restrictive manner. According to settled case-law (see, inter alia , Bayer v Commission , cited above, paragraph 26), full knowledge of the finality of a decision and of the time-limit for bringing an action under Article 230 EC does not, in itself, prevent an individual from pleading excusable error to justify his application being out of time since such an error may occur, in particular, when the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally well-informed person.
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26 It should be pointed out in this connection that the Court of First Instance held, at paragraph 29, that the concept of excusable error could concern only exceptional circumstances in which, "in particular", the conduct of the institution concerned had been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of the party concerned. It follows from the use of the adverbial construction "in particular" that, by not limiting the concept of excusable error, the Court of First Instance correctly applied the case-law cited.
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34. Moreover, in the absence of any unifying or harmonising Community measures, Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (see, to that effect, Amurta , paragraphs 16 and 17).
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