sent0
stringlengths 36
32.8k
⌀ | sent1
stringlengths 8
29.9k
| hardneg
stringlengths 8
32.8k
|
|---|---|---|
44. However, in accordance with the Court’s case-law, the principle of equal pay, like the general principle of non-discrimination which it embodies in a specific form, presupposes that the men and women to whom it applies are in identical or comparable situations (see Case C‑132/92 Roberts [1993] ECR I-5579 (‘ Birds Eye Walls ’), paragraph 17; Case C-342/93 Gillespie and Others [1996] ECR I-475, paragraphs 16 to 18; Abdoulaye and Others , cited above, paragraph 16; and Case C-206/00 Mouflin [2001] ECR I-10201, paragraph 28).
|
16 It is well settled that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Case C-279/93 Finanzamt Koeln-Altstadt v Schumacker [1995] ECR I-225, paragraph 30).
|
50
Under Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. In observance of the principle of proportionality, limitations may be imposed on the exercise of those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
|
34. In that regard, as was noted by the Advocate General in point 49 of his Opinion, the principle of equivalence requires equal treatment of claims based on a breach of national law and of similar claims based on a breach of EU law, not equivalence of national procedural rules applicable to different types of proceedings such as — as in the dispute in the main proceedings — civil proceedings on the one hand and administrative proceedings on the other. Furthermore, that principle is not relevant to a situation which — as in the dispute in the main proceedings — concerns two types of actions, both of which are based on a breach of EU law (judgment in ÖBB Personenverkehr , C‑417/13, EU:C:2015:38, paragraph 74).
|
74. It follows that, since observance of the principle of equivalence requires the application without distinction of a national rule to actions based on infringement of EU law and those based on infringements of national law, that principle is not relevant to a situation such as that at issue in the main proceedings, which concerns two types of actions, both based on an infringement of EU law.
|
42. The autonomous interpretation of the concept of ‘civil and commercial matters’ results in the exclusion of certain judicial decisions from the scope of Regulation No 44/2001, by reason either of the legal relationships between the parties to the action or of the subject-matter of the action (see LTU , paragraph 4; Rüffer , paragraph 14; Préservatrice foncière TIARD, paragraph 21; ČEZ , paragraph 22, and Lechouritou and Others , paragraph 30).
|
43. The approach adopted in paragraph 41 of the present judgment is consistent with the objective pursued by Article 45 TFEU of enabling a worker to move freely within the territory of the other Member States and to stay there for the purpose of employment (see Uecker and Jacquet , C‑64/96 and C‑65/96, EU:C:1997:285, paragraph 21).
|
21 To grant the spouse of a worker who is a national of a Member State the right to be employed in that State, in which the worker exercises a professional or trade activity, would not correspond to the objective of Article 48 of the Treaty which Regulation No 1612/68 seeks to implement, namely in particular that of enabling a worker to move freely within the territory of the other Member States and to stay there for the purpose of employment.
|
403. The fact that an undertaking is not rewarded for cooperation which did not allow the Commission to establish an infringement with less difficulty and, where appropriate, to put an end to it cannot be classified as a sanction additional to the punishment consisting in recognition of an aggravating circumstance.
|
181. The General Court did not err in law in pointing out, at paragraph 416 of the judgment under appeal, that in the determination of the amount of the fine in a case of infringement of the competition rules, the Commission fulfils its obligation to state reasons when it indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration, and it is not required to indicate the figures relating to the method of calculating the fines (see Case C‑280/98 P Weig v Commission EU:C:2000:627, paragraphs 43 to 46; Case C‑291/98 P Sarrió v Commission EU:C:2000:631, paragraphs 73 to 76; and Joined Cases, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission EU:C:2002:582, paragraphs 463 to 464).
|
43 In those circumstances, in the light of the case-law referred to in paragraphs 182 and 183 of the contested judgment, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. If those factors are not stated, the decision is vitiated by failure to state adequate reasons.
|
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.
|
26. The Court has already held that the application of a national rule intended to prevent abuse must not prejudice the full effect and uniform application of European Union law in the Member States ( Walcher , paragraph 37).
|
37. Although the Court cannot substitute its assessment for that of a national court, which is the only forum competent to establish the facts of the case before it, it must be pointed out that the application of a national rule intended to prevent abuse must not prejudice the full effect and uniform application of Community law in the Member States. In particular, it is not open to national courts to compromise the objectives pursued by the directive in question (see, to that effect, Case C-367/96 Kefalas and Others [1998] ECR I-2843, paragraph 22).
|
35. Indeed, Article 5 of that regulation merely provides that intentional irregularities or those caused by negligence ‘may’ lead to certain administrative penalties listed in that provision whilst, as regards the categories of operators who may be liable to incur such penalties, Article 7 of the regulation provides that those penalties ‘may’ be applied not only to the economic operators who have committed the irregularity but also to persons who have taken part in the irregularity and to those who are under a duty to take responsibility for the irregularity or to ensure that it is not committed.
|
39
In accordance with settled case-law of the Court of Justice, Article 101(1) TFEU cannot be considered to concern only (i) the undertakings operating on the market affected by the restrictions of competition or indeed on the markets upstream or downstream of that market or neighbouring markets or (ii) undertakings which restrict their freedom of action on a particular market under an agreement or as a result of a concerted practice. Indeed, it follows from well-established case-law of the Court that the text of Article 101(1) TFEU refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the internal market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraphs 34 and 35 and the case-law cited).
|
35. Indeed, it is apparent from the Court’s well established case-law that the text of Article 81(1) EC refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the common market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgments in LTM , 56/65, EU:C:1966:38, p. 358; Consten and Grundig v Commission , 56/64 and 58/64, EU:C:1966:41, p.p. 492 and 493; Musique Diffusion française and Others v Commission , 100/80 to 103/80, EU:C:1983:158, paragraphs 72 to 80; Binon , 243/83, EU:C:1985:284, paragraphs 39 to 47; and Javico , C‑306/96, EU:C:1998:173, paragraphs 10 to 14).
|
37 The Court has held that that term must be interpreted in light of the aim of the directive (see, in particular, Joined Cases C-206/88 and C-207/88 Vessoso and Zanetti [1990] ECR I-1461, paragraph 12).
|
36. According to the case-law of the Court, the principle of equality, of which Article 49 EC is a specific expression, prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing elements, lead in fact to the same result (see Case 22/80 Boussac Saint-Frères [1980] ECR 3427, paragraph 9, and Case C-3/88 Commission v Italy [1989] ECR 4035, paragraph 8).
|
8 According to the Court' s case-law the principle of equal treatment, of which Articles 52 and 59 of the Treaty embody specific instances, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result ( see, in particular, the judgment of 29 October 1980 in Case 22/80 Boussac v Gerstenmeier (( 1980 )) ECR 3427 ).
|
71. For the condition as to ‘deliberate’ action in Article 12(1)(a) of the directive to be met, it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing.
|
29. In accordance with the Court’s settled case-law, in order to ensure, as far as possible, that the rights and obligations which derive from that regulation for the Member States and the persons to whom it applies are equal and uniform, the concept of ‘civil and commercial matters’ should not be interpreted as a mere reference to the internal law of one or other of the States concerned. That concept must be regarded as an autonomous concept to be interpreted by reference, first, to the objectives and scheme of Regulation No 44/2001 and, second, to the general principles which stem from the corpus of the national legal systems (judgments in Schneider , C‑386/12, EU:C:2013:633, paragraph 18 and the case-law cited, and flyLAL-Lithuanian Airlines , C‑302/13, EU:C:2014:2319, paragraph 24 and the case-law cited).
|
18. Furthermore, according to settled case-law, the concept of ‘civil and commercial matters’ for the purposes of Article 1 of Regulation No 44/2001 must be regarded as an autonomous concept to be interpreted by reference, first, to the objectives and scheme of that regulation and, second, to the general principles which stem from the corpus of the national legal systems. As a particular consequence, the scope of Regulation No 44/2001 must be determined essentially in the light of the legal relationships between the parties to the action or the subject-matter of the action (see, to that effect, Case C‑343/04 ČEZ [2006] ECR I‑4557, paragraph 22, and Case C‑420/07 Apostolides [2009] ECR I‑3571, paragraphs 41 and 42 and the case-law cited).
|
31. Si l’autorité compétente de l’État d’exécution éprouve des doutes sur la question de savoir si les conditions susmentionnées pour la reconnaissance de la décision infligeant une sanction pécuniaire en cause dans un cas donné sont remplies, elle peut solliciter des informations supplémentaires de l’autorité compétente de l’État d’émission, avant de tirer toutes les conséquences des appréciations effectuées dans sa réponse par cette dernière autorité [voir en ce sens, en ce qui concerne la décision-cadre 2002/584/JAI du Conseil, du 13 juin 2002, relative au mandat d’arrêt européen et aux procédures de remise entre États membres (JO L 190, p. 1), arrêt Mantello, précité, point 50].
|
31. Further, in accordance with well-established case-law of the Court, in relation to a directive which, like Directive 91/676, contains technical rules in the area of the environment, the Member States are under a particular duty, in order to satisfy fully the requirement of legal certainty, to ensure that their legislation intended to transpose that directive is clear and precise (see, to that effect, the judgments in Commission v United Kingdom , C‑6/04, EU:C:2005:626, paragraphs 21 and 26, and Commission v Belgium , C‑120/09, EU:C:2009:802, paragraph 27).
|
26. It follows that, in the context of the Habitats Directive, which lays down complex and technical rules in the field of environmental law, the Member States are under a particular duty to ensure that their legislation intended to transpose that directive is clear and precise, including with regard to the fundamental surveillance and monitoring obligations, such as those imposed on national authorities by Articles 11, 12(4) and 14(2) of the directive.
|
23 Although the contested decision takes the form of a single act, the First Board of Appeal of the OHIM in fact adopted two measures, one refusing to register BABY-DRY on the grounds laid down in Article 7(1)(b) and (c) of Regulation No 40/94, and the other dismissing the appellant's arguments based on Article 7(3) as inadmissible.
|
24 Additional payments exceeding the nominal value of the dividend certificates, which the acquirer thereof makes to the issuing company, must be regarded as contributions made to finance the acquisition of those certificates, where such payment is an essential condition of that acquisition (see, by analogy, today's judgment in Case C-339/99 ESTAG [2002] ECR I-0000, paragraphs 30 to 33).
|
30 Where, on an increase in capital, the payment of a price to acquire a shareholding, which is greater than the nominal value of that holding, is an essential condition of the acquisition of that holding, as ESTAG has admitted in relation to the situation at issue in the main proceedings, the various payments made to make up that price are to be regarded as constituting the contribution conferring entitlement to that holding and, therefore, as coming within the scope of Article 4(1)(c) of Directive 69/335.
|
77
Similarly, that liability is independent of the principal’s good faith and the fact that the breach of the external Community transit procedure was extraneous to him (see, to that effect, the judgment of 3 April 2008, Militzer & Münch, C‑230/06, EU:C:2008:186, paragraph 49 and the case-law cited).
|
69. It should also be added that both the effectiveness and the spirit of the Community provisions at issue require the conclusion that, where it is established that the person concerned would have been entitled to have the cost of medical treatment received in a non-member country borne by the institution of the Member State of stay (see paragraphs 25 and 26 above) and that treatment is among the benefits provided for by the legislation of the competent Member State, it is for the competent institution to reimburse to that person or his heirs directly the cost of that treatment, so as to ensure a level of assumption of costs equivalent to that which that person would have enjoyed if the provisions of Article 22(1)(a)(i) and (c)(i) of Regulation No 1408/71 had been applied (see, to that effect, Vanbraekel and Others , paragraph 34, and IKA , paragraph 61).
|
61. Accordingly, where it appears that the institution of the place of stay has wrongly refused to give effect to that provision and the institution of the place of residence, on being advised of that refusal, has declined to contribute, as it is obliged to, to facilitating the correct application of that provision, it is for the latter institution, without prejudice to the possible liability of the institution of the place of stay, to reimburse directly to the insured person the cost of the treatment he has had to bear, so as to guarantee him a level of funding equivalent to that which he would have enjoyed had the provisions of that article been complied with (see, by analogy, Case C-368/98 Vanbraekel and Others [2001] ECR I-5363, paragraph 34).
|
43. With regard to heading 87.03, the HS explanatory note states in essence that this heading covers motor vehicles of various types (including amphibious motor vehicles) designed for the transport of persons; the vehicles may have any type of motor and have certain technical characteristics such as motor-car-type steering based on the Ackerman principle.
|
69. However, as the Court has already held and in so far as Directive 2009/28 had already entered into force at the time of the facts in the main proceedings, the interpretation of that directive sought by the referring court must be regarded as being useful to that court (see, to that effect, Joined Cases C‑261/07 and C‑299/07 VTB-VAB and Galatea [2009] ECR I‑2949, paragraphs 29 to 41).
|
35. Firstly, it follows from the case-law that not only the national provisions specifically intended to transpose a directive but also, from the date of that directive’s entry into force, the pre-existing national provisions capable of ensuring that the national law is consistent with it must be considered to fall within the scope of that directive (see, to that effect, Case C‑81/05 Cordero Alonso [2006] ECR I‑7569, paragraph 29).
|
19. En effet, le système des voies de recours établi par le traité CE distingue les recours visés aux articles 226 CE et 227 CE, qui tendent à faire constater qu’un État membre a manqué aux obligations qui lui incombent, et les recours visés aux articles 230 CE et 232 CE, qui tendent à faire contrôler la légalité des actes ou des abstentions des institutions communautaires. Ces voies de recours poursuivent des objectifs distincts et sont soumises à des modalités différentes. Un État membre ne saurait donc utilement, en l’absence d’une disposition du traité l’y autorisant expressément, invoquer l’illégalité d’une décision dont il est destinataire comme moyen de défense à l’encontre d’un recours en manquement fondé sur l’inexécution de cette décision (voir notamment, en ce sens, arrêts du 30 juin 1988, Commission/Grèce, 226/87, Rec. p. 3611, point 14; du 27 octobre 1992, Commission/Allemagne, C‑74/91, Rec. p. I‑5437, point 10; du 22 mars 2001, Commission/France, C‑261/99, Rec. p. I‑2537, point 18, et du 26 juin 2003, Commission/Espagne, C‑404/00, Rec. p. I‑6695, point 40).
|
24. The objective of Directive 97/81 and the Framework Agreement is, first, to promote part-time work and, second, to eliminate discrimination between part‑time workers and full-time workers (see Joined Cases C‑55/07 and C‑56/07 Michaeler and Others [2008] ECR I‑3135, paragraph 21).
|
21. The objective of Directive 97/81 and the framework agreement is, first, to promote part-time work and, secondly, to eliminate discrimination between part-time workers and full-time workers.
|
69
It must be remembered that the right to property guaranteed by that provision of the Charter is not absolute and that its exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union (see judgments of 16 November 2011, Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 113, and of 12 May 2016, Bank of Industry and Mine v Council, C‑358/15 P, EU:C:2016:338, paragraph 55).
|
18. However, the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant government merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real step to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled the difficulties to be overcome (see Case 94/87 Commission v Germany [1989] ECR 175, paragraph 10; Case C-280/95 Commission v Italy [1998] ECR I-259, paragraph 14; Case C‑499/99 Commission v Spain , cited above, paragraph 25; and Case C-404/00 Commission v Spain , cited above, paragraph 47).
|
14 However, that condition is not satisfied where the defendant government merely informs the Commission of the legal and practical difficulties involved in implementing the decision, without taking any step whatsoever to recover the aid from the undertakings in question, and without proposing to the Commission any alternative arrangements for implementing the decision which would have enabled the alleged difficulties to be overcome (see Case 94/87 Commission v Germany [1989] ECR 175, paragraph 10, and Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraph 20).
|
66. As a result, it must be held that, by restricting the concept of collective redundancies to redundancies for structural, technological or cyclical reasons, and by failing to extend that concept to dismissals for any reason not related to the individual workers concerned, the Portuguese Republic has failed to fulfil its obligations under Articles 1 and 6 of the Directive, and the remainder of the action must be dismissed.
|
26
In accordance with the Court’s settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist when the action is lodged, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue to exist until the final decision, failing which there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 61 and the case-law cited).
|
61. In paragraph 22 of the order under appeal, the General Court recalled the settled case-law according to which an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see Wunenburger v Commission , paragraph 42 and the case-law cited, and Joined Cases C‑373/06 P, C‑379/06 P and C‑382/06 P Flaherty and Others v Commission [2008] ECR I‑2649, paragraph 25).
|
68. It follows that if a three-dimensional shape of product trade mark is not refused registration under Article 3(1)(e) of the Directive, registration may still be refused if it falls within one or more of the categories set out in Article 3(1)(b) to (d).
|
21 The letting of immovable property for the purposes of Article 13B(b) of the Sixth Directive essentially involves the landlord of property assigning to the tenant, in return for rent and for an agreed period, the right to occupy his property and to exclude other persons from it (see, to that effect, Case C-358/97 Commission v Ireland [2000] ECR I-6301, paragraphs 52 to 57, Case C-359/97 Commission v United Kingdom [2000] ECR I-6355, paragraphs 64 to 69; and Case C-326/99 Goed Wonen [2001] ECR I-0000, paragraph 55).
|
52 It is also settled case-law that 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, Stichting Uitvoering Financiële Acties, cited above, paragraph 13, Bulthuis-Griffioen, cited above, paragraph 19, SDC, cited above, paragraph 19, and Case C-216/97 Gregg v Commissioners of Customs and Excise [1999] ECR I-4947, paragraph 12).
|
28 Conversely, Community legislation may be applied to it when it sails in the inland waters or, more especially, is in a port of a Member State, where it is generally subject to the unlimited jurisdiction of that State.
|
15 As the Court has consistently held, 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 the Court cannot take account of any subsequent changes (see, in particular, Case C-289/94 Commission v Italy [1996] ECR I-4405, paragraph 20, and Case C-302/95 Commission v Italy [1996] ECR I-6765, paragraph 13).
|
20 The Court has consistently held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes (Case C-133/94 Commission v Belgium [1996] ECR I-0000, paragraph 17).
|
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.
|
50. An undertaking which has participated in such a single and complex infringement through its own conduct, which fell within the definition of an agreement or concerted practice having an anti-competitive object within the meaning of Article 81(1) EC and was intended to help bring about the infringement as a whole, may thus be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the case where it can be shown that that undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk ( Commission v Anic Partecipazioni , paragraphs 83, 87 and 203, and Aalborg Portland and Others v Commission , paragraph 83).
|
87 When, as in the present case, the infringement involves anti-competitive agreements and concerted practices, the Commission must, in particular, show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk.
|
53 Thus the appellants ° who were, by force of circumstance, the only sources of the basic information on programme scheduling which is the indispensable raw material for compiling a weekly television guide ° gave viewers wishing to obtain information on the choice of programmes for the week ahead no choice but to buy the weekly guides for each station and draw from each of them the information they needed to make comparisons.
|
32. In that regard, it must be noted that both the promotion of mobility and integration of disabled persons and the wish to ensure that there is a connection between the society of the Member State concerned and the recipient of a benefit such as that at issue in the main proceedings can indeed constitute objective considerations of public interest which are capable of justifying the fact that the conditions for the grant of the benefit may affect the freedom of movement of the citizens of the Union (see, by analogy, D’Hoop , paragraph 38; Case C‑192/05 Tas‑Hagen and Tas [2006] ECR I‑10451, paragraph 35; and Case C‑499/06 Nerkowska [2008] ECR I‑3993, paragraph 37).
|
38 The tideover allowance provided for by Belgian legislation, which gives its recipients access to special employment programmes, aims to facilitate for young people the transition from education to the employment market. In such a context it is legitimate for the national legislature to wish to ensure that there is a real link between the applicant for that allowance and the geographic employment market concerned.
|
11 In interpreting Article 14 of Regulation No 17, regard must be had in particular to the rights of the defence, a principle whose fundamental nature has been stressed on numerous occasions in the Court' s decisions ( see, in particular, the judgment of 9 November 1983 in Case 322/81 Michelin v Commission (( 1983 )) ECR 3461, paragraph 7 ).
|
34. In that regard, as the Advocate General has observed in points 40 and 41 of his Opinion, in order to assess whether that employer-employee relationship exists, it is necessary to check whether the person concerned performs his activities in his own name, on his own behalf and under his own responsibility, and whether he bears the economic risk associated with carrying out those activities. In order to find that the activities at issue are independent, the Court has thus taken into account the complete absence of any employer-employee relationship between public authorities and operators who were not integrated into the public administration, as well as the fact that such operators acted on their own account and under their own responsibility, were free to arrange how they performed their work and themselves received the emoluments which made up their income (see, to that effect, judgments in Commission v Netherlands , 235/85, EU:C:1987:161, paragraph 14; Heerma , C‑23/98, EU:C:2000:46, paragraph 18; and van der Steen , C‑355/06, EU:C:2007:615, paragraphs 21 to 25).
|
25. In this connection, the Gerechtshof te Amsterdam makes clear that Mr van der Steen did not bear any economic business risk in acting as manager and performing the work in the course of the company’s dealings with third parties.
|
46. First of all, it must be acknowledged that the principle of legal certainty, requires the tax position of the taxable person, having regard to his rights and obligations vis-à-vis the tax authorities, not to be open to challenge indefinitely (see, to that effect, Ecotrade , paragraph 44).
|
34. First, both a trade mark’s distinctiveness and its reputation must be assessed, first, by reference to the perception of the relevant public, which consists of average consumers of the goods or services for which that mark is registered, who are reasonably well informed and reasonably observant and circumspect (as regards distinctive character, see Case C‑363/99 Koninklijke KPN Nederland [2004] ECR I‑1619, paragraph 34; as regards reputation, see, to that effect, General Motors , paragraph 24).
|
24 The public amongst which the earlier trade mark must have acquired a reputation is that concerned by that trade mark, that is to say, depending on the product or service marketed, either the public at large or a more specialised public, for example traders in a specific sector.
|
29. It follows that the advertising arrangement, introduced by the Community legislature for contracts relating to services coming within the ambit of Annex I B, cannot be interpreted as precluding application of the principles resulting from Articles 43 EC and 49 EC, in the event that such contracts nevertheless are of certain cross-border interest.
|
25. Whether inherent or acquired through use, distinctive character must be assessed in relation, on the one hand, to the goods or services in respect of which registration is applied for and, on the other, to the presumed expectations of an average consumer of the category of goods or services in question, who is reasonably well-informed and reasonably observant and circumspect (judgment in Case C-299/99 Philips [2002] ECR I-5475, paragraphs 59 and 63).
|
59 The distinctive character of a mark, including that acquired by use, must be assessed in relation to the goods or services in respect of which registration is applied for.
|
23. The advantage at issue before the national court, namely a tax concession, is not paid by the employer. Such an advantage is therefore not covered by Article 141 EC.
|
52
As regards the existence of a derived right of residence, based on Article 21(1) TFEU and Directive 2004/38, the Court has held that that directive confers rights of entry into and residence in a Member State not on all third-country nationals, but solely on those who are a ‘family member’, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national (judgments of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 56; of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 41; and of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraph 36).
|
56. Indeed, not all third country nationals derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national ( Metock and Others , paragraph 73).
|
45. Il convient de rappeler que l’article 49 TFUE s’oppose aux restrictions à la liberté d’établissement. Cette disposition prohibe toute mesure nationale qui est susceptible de gêner ou de rendre moins attrayant l’exercice, par les ressortissants de l’Union, de la liberté d’établissement garantie par le traité. La notion de restriction couvre les mesures prises par un État membre qui, quoique indistinctement applicables, affectent l’accès au marché pour les entreprises d’autres États membres et entravent ainsi le commerce intracommunautaire (voir arrêts du 28 avril 2009, Commission/Italie, C‑518/06, Rec. p. I‑3491, points 63 et 64, ainsi que du 7 mars 2013, DKV Belgium, C‑577/11, points 31 à 33).
|
45
As regards the grounds put forward as justification by the Hungarian Government, the Court has already held that it follows both from the wording of Article 14 of Directive 2006/123 and from the general scheme of the directive that no justification can be given for the requirements listed in that article (judgment in Rina Services and Others, C‑593/13, EU:C:2015:399, paragraphs 28 to 35).
|
33. It follows from Article 15(5) and (6) of Directive 2006/123 that Member States may maintain or, if necessary, introduce requirements of the type referred to in Article 15(2), on condition that those requirements satisfy the conditions of non-discrimination, necessity and proportionality laid down in Article 15(3).
|
43 Enfin, s'agissant de l'argument du gouvernement autrichien concernant la difficulté d'établir, dans certains cas, le caractère trompeur d'une indication ayant trait à la santé, il y a lieu de constater qu'il appartient aux juridictions nationales, dans toutes les situations douteuses, de forger leur conviction en prenant en considération l'attente présumée d'un consommateur moyen, normalement informé et raisonnablement attentif et avisé (voir, en ce sens, arrêt du 4 avril 2000, Darbo, C-465/98, Rec. p. I-2297, point 20).
|
23. Although it is for the national court to determine whether the taxable person supplies a single service in a particular case and to make all definitive findings of fact in that regard, the Court may, however, provide it with any guidance as to interpretation that will be helpful to it in disposing of the case (see, to that effect, Levob Verzekeringen and OV Bank , paragraph 23, and Case C‑334/10 X [2012] ECR I‑0000, paragraph 24).
|
24. Although it is for the national court to determine the factual situation in a particular case, the Court may provide it with any guidance as to interpretation that is helpful to it in disposing of the case.
|
66. As is apparent from paragraphs 54 and 55 of this judgment, a directive ' s transposition is not complete if it leaves a state of uncertainty as regards the extent of the rights and obligations of individuals in the field governed by the directive. Even if the word " all" used in the decrees implementing Law No 92-654 is to be interpreted as encompassing the information required by Article 5(4) of Directive 90/220, those decrees do not make that sufficiently clear.
|
61. As the Belgian Government points out, that case-law concerns the interpretation of provisions of the Protocol which exempt officials and other servants of the Communities from national taxes on salaries, wages and emoluments paid to them. That exemption relates specifically to servants of the Communities and is limited to national taxes which could be charged on the income arising from performance of their functions, which is subject to Community tax. By contrast, in the present case there is no tax at the Community level and, in addition, only the provisions of the Protocol that exempt the Communities themselves from all direct taxes are in issue (see, to that effect, AGF Belgium , paragraph 14).
|
14. First, as the Commission points out, that judgment concerned the interpretation of provisions of the Protocol which exempt officials and other servants of the Communities from national taxes on salaries, wages and emoluments paid to them. That exemption relates specifically to servants of the Communities and is limited to national taxes which could be charged on the income arising from performance of their functions, which is subject to Community tax. In the present case the provisions of the Protocol in issue are those which exempt the Communities themselves from all direct taxes and provide, furthermore, for the amount of indirect taxes or sales taxes included in purchases made by them in certain circumstances to be remitted or refunded.
|
45. Where a public subsidy is granted to shipbuilding or ship conversion undertakings, the supply of those services by the undertakings may for that reason be maintained or increased with the result that undertakings established in other Member States have less chance of providing their services in that sector in the market of that Member State (see, to this effect, Altmark Trans and Regierungspräsidium Magdeburg , paragraph 78).
|
28. To those ends, Article 3(1) of the First Directive, as amplified and supplemented by the Second and Third Directives, requires the Member States to ensure that civil liability in respect of the use of motor vehicles normally based in their territory is covered by insurance, and specifies, inter alia, the types of damage and the third parties who have been victims of an accident to be covered by that insurance (see, to that effect, Case C‑348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I‑6711, paragraphs 25 to 27, and Case C‑484/09 Carvalho Ferreira Santos [2011] ECR I‑0000, paragraphs 25 to 27).
|
26. The original version of that article however left it to the Member States to determine the extent of the liability covered and the terms and conditions of the compulsory insurance against civil liability in respect of the use of motor vehicles. In order to reduce the disparities which continued to exist between the laws of the Member States as regards the extent of the obligation to insure, as stated in the third recital in the preamble to the Second Directive, Article 1 of the Second Directive required civil liability for damage to property and personal injuries to be compulsorily covered up to specified sums, and Article 1 of the Third Directive extended that obligation to provide cover for personal injuries to passengers other than the driver ( Mendes Ferreira and Delgado Correia Ferreira , paragraph 26).
|
131. With regard specifically to those provisions, the Court has already held that they introduce preferential treatment the benefit of which can be obtained only if certain formalities are completed (see, to that effect, Case C-248/09 Pakora Pluss [2010] ECR I-7697, paragraphs 39 to 41).
|
35. In that regard, according to the case‑law, Article 43 EC precludes any national measure which, even if applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by European Union nationals of the freedom of establishment guaranteed by the Treaty, and such restrictive effects may arise where, on account of national legislation, a company may be deterred from setting up subsidiary entities, such as permanent establishments, in other Member States and from carrying on its activities through such entities (see, inter alia, Attanasio Group , paragraphs 43 and 44 and the case‑law cited, and Case C‑148/10 DHL International [2011] ECR I‑9543, paragraph 60).
|
43. According to settled case-law, Article 43 EC precludes any national measure which, even if applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Union nationals of the freedom of establishment that is guaranteed by the Treaty (see, to that effect, inter alia, Case C‑19/92 Kraus [1993] ECR I‑1663, paragraph 32; Gebhard , paragraph 37; Case C‑442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11; and Case C‑169/07 Hartlauer [2009] ECR I‑0000, paragraph 33 and the case-law cited).
|
51. In the light of all of the foregoing, the first ground of appeal must be rejected.
The second ground of appeal
Arguments of the parties
|
74 It must first be noted that, for the reasons set out in paragraphs 205 to 209 of the contested judgment, the Court of First Instance correctly decided that the Commission was not entitled to prohibit Langnese-Iglo from concluding any exclusive purchasing agreements in the future. The Court of First Instance's assessment is, moreover, consistent with the case-law of the Court of Justice to the effect that Article 3 of Regulation No 17 is to be applied according to the nature of the infringement found (see Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223, paragraph 45, and Joined Cases C-241/91 P and C-242/91 P RTP and ITP v Commission [1995] ECR I-743, paragraph 90).
|
45 AS TO THE FIRST SUBMISSION, ACCORDING TO THE WORDING OF ARTICLE 3 OF REGULATION NO 17, WHERE THE COMMISSION FINDS THAT THERE IS AN INFRINGEMENT OF ARTICLE 86, 'IT MAY BY DECISION REQUIRE THE UNDERTAKINGS ... CONCERNED TO BRING SUCH INFRINGEMENT TO AN END '. THIS PROVISION MUST BE APPLIED IN RELATION TO THE INFRINGEMENT WHICH HAS BEEN ESTABLISHED AND MAY INCLUDE AN ORDER TO DO CERTAIN ACTS OR PROVIDE CERTAIN ADVANTAGES WHICH HAVE BEEN WRONGFULLY WITHHELD AS WELL AS PROHIBITING THE CONTINUATION OF CERTAIN ACTION, PRACTICES OR SITUATIONS WHICH ARE CONTRARY TO THE TREATY . FOR THIS PURPOSE THE COMMISSION MAY, IF NECESSARY, REQUIRE THE UNDERTAKING CONCERNED TO SUBMIT TO IT PROPOSALS WITH A VIEW TO BRINGING THE SITUATION INTO CONFORMITY WITH THE REQUIREMENTS OF THE TREATY .
|
28. In that area, the Court has also pointed out that the objective pursued by the Community law rules governing equality as between men and women in regard to the rights of pregnant women and women who have given birth, is to protect female workers before and after they have given birth (Case C-191/03 McKenna [2005] ECR I-7631, paragraph 42).
|
39
As a result of the guarantee of supply which it may enjoy under such a contract and, as the case may be, its involvement in the supplier’s commercial strategy, in particular with respect to promotional activity, these being factors in respect of which the national court has jurisdiction to make a finding, the distributor may be able to offer customers services and benefits that a mere reseller cannot and thereby acquire for the supplier’s products a larger share of the local market (see, to this effect, judgment of 19 December 2013 in Corman-Collins, C‑9/12, EU:C:2013:860, paragraph 38 and the case-law cited).
|
38. En ce qui concerne le premier critère figurant dans cette définition, à savoir l’existence d’une activité, il ressort de la jurisprudence de la Cour qu’il requiert l’accomplissement d’actes positifs, à l’exclusion de simples abstentions (voir, en ce sens, arrêt Falco Privatstiftung et Rabitsch, précité, points 29 à 31). Ce critère correspond, dans le cas d’un contrat de concession, à la prestation caractéristique fournie par le concessionnaire qui, en assurant la distribution des produits du concédant, participe au développement de leur diffusion. Grâce à la garantie d’approvisionnement dont il bénéficie en vertu du contrat de concession et, le cas échéant, à sa participation à la stratégie commerciale du concédant, notamment aux opérations promotionnelles, éléments dont la constatation relève de la compétence du juge national, le concessionnaire est en mesure d’offrir aux clients des services et des avantages que ne peut offrir un simple revendeur et, ainsi, de conquérir, au profit des produits du concédant, une plus grande part du marché local.
|
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.
|
27 It must be borne in mind at the outset that, although the Court may not, under Article 234 EC, rule upon the compatibility of a provision of domestic law with Community law or interpret domestic legislation or regulations, it may nevertheless provide the national court with an interpretation of Community law on all such points as may enable that court to determine the issue of compatibility for the purposes of the case before it (see, for example, Case C-292/92 Hünermund and Others [1993] ECR I-6787, paragraph 8; Case C-28/99 Verdonck and Others [2001] ECR I-3399, paragraph 28; Case C-399/98 Ordine degli Architetti and Others [2001] ECR I-5409, paragraph 48).
|
8 Although it is not for the Court, in proceedings under Article 177 of the Treaty, to rule on the compatibility of rules of domestic law with Community law, it is none the less competent to give the national court full guidance on the interpretation of Community law in order to enable it to determine whether those rules are so compatible.
|
16. 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, arrêt du 30 novembre 2006, Commission/Luxembourg, C‑32/05, Rec. p. I‑11323, point 22).
|
37 In relation to the second part of the question, as recast above, the Court has consistently held that the Directive is intended to safeguard the rights of workers in the event of a change of employer by making it possible for them to continue to work for the new employer on the same conditions as those agreed with the transferor (see D'Urso and Others, cited above, paragraph 9, and Joined Cases C-132/91, C-138/91 and C-139/91 Katsikas and Others [1992] ECR I-6577, paragraph 21).
|
9 As this Court held in its judgment in Joined Cases 144/87 and 145/87 Harry Berg and Another v Ivo Marten Besselsen [1988] ECR 2559, paragraphs 12 and 13, the Directive is intended to safeguard the rights of workers in the event of a change of employer by making it possible for them to continue to work for the new employer on the same conditions as those agreed with the transferor. The rules applicable in the event of a transfer of an undertaking or a business to another employer are thus intended to safeguard, in the interests of the employees, the existing employment relationships which form part of the economic entity transferred.
|
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.
|
23. In that regard, it must be recalled at the outset that the question whether an operation is to be classified as a ‘service concession’ or a ‘public service contract’ must be considered exclusively in the light of European Union law (see, inter alia, Case C‑382/05 Commission v Italy [2007] ECR I‑6657, paragraph 31, and Case C-196/08 Acoset [2009] ECR I‑9913, paragraph 38).
|
38. The question whether such an operation is to be classed as a ‘service concession’ or a ‘public service contract’ must be considered exclusively in the light of Community law (see, inter alia, Case C‑382/05 Commission v Italy [2007] ECR I‑6657, paragraph 31).
|
64. In the second place, while the national authorities are entitled to carry out, where appropriate, interviews in order to determine the facts and circumstances as regards the declared sexual orientation of an applicant for asylum, questions concerning details of the sexual practices of that applicant are contrary to the fundamental rights guaranteed by the Charter and, in particular, to the right to respect for private and family life as affirmed in Article 7 thereof.
|
49. In that connection, it must be recalled that the Court has already held, as regards the general principle of equal treatment in the context of grounds such as age or sex, that a difference of treatment which is based on a characteristic related to such grounds does not constitute discrimination — that is to say, an infringement of Article 21(1) of the Charter — where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate (see, to that effect, as regards discrimination on grounds of age, Case C‑229/08 Wolf EU:C:2010:3, paragraph 35, and Case C‑447/09 Prigge and Others EU:C:2011:573, paragraph 66; and, as regards discrimination based on sex, Case 222/84 Johnston EU:C:1986:206, paragraph 40, and Case C‑273/97 Sirdar EU:C:1999:523, paragraph 25).
|
66. It is apparent from the wording of that provision that, in order not to constitute discrimination, the difference in treatment must be based on a characteristic related to one of the grounds referred to in Article 1 of the Directive and that characteristic must constitute a ‘genuine and determining’ occupational requirement. The Court has held that it is not the ground on which the difference in treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement (see Case C‑229/08 Wolf [2010] ECR I‑0000, paragraph 35).
|
51 In the absence of any Community legislation on the matter, the United Kingdom authorities must base their decision on national law, subject to the limits imposed by Community law.
|
41. Cependant, ainsi que l’a notamment souligné le gouvernement français, il convient de constater que seule la perte d’une garantie constituée à l’appui de la demande d’un avantage octroyé ou lors de la perception d’une avance relève de la notion de «mesure administrative», tandis que la perte d’une garantie constituée aux fins du respect des conditions d’une réglementation, telle que la perte de la garantie de bonne exécution prévue par le règlement n° 360/95 ou la perte partielle de la garantie destinée à assurer l’exportation dans les délais impartis prévue à l’article 91, paragraphe 12, du règlement n° 1623/2000, relève pour sa part exclusivement de la notion de «sanction administrative», à l’instar de la perte de la garantie en cause dans l’affaire ayant donné lieu à l’arrêt du 29 janvier 1998, Prolacto (C‑346/96, Rec. p. I‑345, point 65).
|
65 Accordingly, the loss of the security lodged constitutes a penalty where, on the expiry of a period that Regulation No 1354/83 sets at three months, it is clear that, despite the deterrent effect of Article 26(5), the successful tenderer has definitively failed to fulfil his obligation to supply the goods in question and that that failure cannot be explained by force majeure or attributed to the recipient of the food aid.
|
20 As regards the claims based on infringement of the right to enjoy property, the right to pursue a profession or occupation and the principles of legal certainty and protection of legitimate expectations, the Court has consistently held that when a situation necessitates the evaluation of a complex economic situation, as is the case concerning the common agricultural policy, the Community legislature enjoys a wide discretion as to the nature and scope of the measures to be taken . There is nothing in the documents before the Court to support the view that the limits of that discretion have been exceeded in this case and therefore those claims too must be rejected .
|
27. This is so because the second paragraph of Article 7 of Decision No 1/80 is not designed to create conditions conducive to family unity in the host Member State ( Akman , paragraph 43), but to promote access of children of Turkish workers to the employment market.
|
43 It follows, moreover, from what is stated in paragraph 37 above that, unlike the first paragraph (see Kadiman, cited above, in particular at paragraph 36), the second paragraph of Article 7 is not designed to create conditions conducive to family unity in the host Member State.
|
74
Thus, it must be held that by that question the referring court asks essentially whether Regulation No 2658/87 must be interpreted as meaning that goods, such as those at issue in the main proceedings, are classified under heading 2401 of the CN, and more specifically subheadings 2401 10 35 or 2401 30 00 thereof, or heading 2403 of the CN and, in the present case, subheading 2403 10 90 thereof.
|
47
It must be held that such a lack of foreseeability may have the effect of deterring non-residents from acquiring or maintaining property situated in that Member State, given that the later transfer of those assets to other non-residents would place the latter in a position of uncertainty for a longer time as regards the future taxation that might be demanded by that Member State (see, by analogy, the judgment of 15 September 2011 in Halley, C‑132/10, EU:C:2011:586, paragraphs 22 to 25).
|
22. It must be noted that the measures prohibited by Article 63(1) TFEU, as restrictions on the movement of capital, include those which are liable to discourage non-residents from making investments in a Member State or from maintaining such investments (see, to that effect, Case C‑377/07 STEKO Industriemontage [2009] ECR I‑299, paragraphs 23 and 24; Case C‑450/09 Schröder [2011] ECR I‑0000, paragraph 30).
|
87 Those guidelines, setting out the approach which the Commission proposes to follow, help to ensure that it acts in a manner which is transparent, foreseeable and consistent with legal certainty and are designed to achieve proportionality in the amounts of the penalty payments to be proposed by it.
|
31. National legislation intended to apply only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities falls within the scope of Article 49 TFEU on freedom of establishment (see judgments in Test Claimants in the FII Group Litigation , C‑446/04, EU:C:2006:774, paragraph 37; Idryma Typou , C‑81/09, EU:C:2010:622, paragraph 47; Accor , EU:C:2011:581, paragraph 32; Scheunemann , C‑31/11, EU:C:2012:481, paragraph 23; and Test Claimants in the FII Group Litigation , EU:C:2012:707, paragraph 91).
|
47. Provisions of national law which apply to the possession by nationals of one Member State of holdings in the capital of a company established in another Member State allowing them to exert a definite influence on the company’s decisions and to determine its activities fall within the ambit ratione materiae of Article 49 TFEU on freedom of establishment (see to this effect, in particular, Case C‑251/98 Baars [2000] ECR I‑2787, paragraph 22; Case C‑112/05 Commission v Germany [2007] ECR I‑8995, paragraph 13; and Case C‑326/07 Commission v Italy [2009] ECR I‑2291, paragraph 34).
|
139 In those circumstances, the remainder of the Spanish Government's claim relating to the refusal to charge to the EAGGF certain expenditure relating to production aid for olive oil must be dismissed.
Aid in the wine sector
|
17. More specifically, in the area of advertising for games of chance, the Court has held that national legislation whose effect is to prohibit the promotion in a Member State of gambling organised legally in other Member States constitutes a restriction on the freedom to provide services (see, to this effect, Joined Cases C-447/08 and C-448/08 Sjöberg and Gerdin [2010] ECR I-6921, paragraphs 33 and 34).
|
34. That provision consequently constitutes a restriction on the freedom of Swedish residents to receive, on the internet, services offered in other Member States. It also imposes, so far as providers of gambling services established in Member States other than the Kingdom of Sweden are concerned, a restriction on their freedom to provide services in the Kingdom of Sweden.
|
22 ON SEVERAL OCCASIONS , AND MOST RECENTLY IN ITS JUDGMENT OF 5 JUNE 1980 IN CASE 24/79 OBERTHUR ( 1980 ) ECR 1743 , THE COURT HAS STRESSED THE IMPORTANCE OF THE PERIODIC REPORT AS A CRITERION OF ASSESSMENT EACH TIME AN OFFICIAL ' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION . THUS , PURSUANT TO ARTICLE 45 ( 1 ) OF THE STAFF REGULATIONS , OFFICIALS MAY BE PROMOTED ONLY AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION AND OF THE REPORTS ON THEM . ALTHOUGH IT IS TRUE THAT IN EXCEPTIONAL CIRCUMSTANCES THE ABSENCE OF PERIODIC REPORTS MAY BE COMPENSATED FOR BY THE EXISTENCE OF OTHER INFORMATION ON AN OFFICIAL ' S MERITS , SUCH IS NOT , HOWEVER , THE CASE WITH A REPORT IRREGULARLY INCLUDED IN A PERSONAL FILE AFTER IT HAS BEEN CHALLENGED BY THE OFFICIAL . MOREOVER , THE MERE EXISTENCE OF A PROPOSAL FOR PROMOTION , EVEN IN EULOGISTIC TERMS , AND A LIST OF THE OFFICIAL ' S PUBLICATIONS , DRAWN UP BY HIM AND CONTAINING NO OBJECTIVE ASSESSMENT OF THEIR SCIENTIFIC VALUE , CANNOT MAKE UP FOR THE ABSENCE OF A PROPER PERIODIC REPORT .
|
24. It should be borne in mind that the Court has recognised the existence of a prohibition of discrimination on grounds of age which must be regarded as a general principle of EU law and which was given specific expression by Directive 2000/78 in the field of employment and occupation (judgments in Kücükdeveci , C‑555/07, EU:C:2010:21, paragraph 21, and Prigge and Others , C‑447/09, EU:C:2011:573, paragraph 38).
|
21. In that context, the Court has acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law (see, to that effect, Mangold , paragraph 75). Directive 2000/78 gives specific expression to that principle (see, by analogy, Case 43/75 Defrenne [1976] ECR 455, paragraph 54).
|
32 First of all, it is clear from the very wording of that provision that an occupational social security scheme may be characterised by compulsory membership.
|
41. Such an obligation applies to Member States in order to anticipate any change in the situation existing in them at a given point in time and in order to ensure that all legal persons in the Community, including those in Member States in which a particular activity referred to in a directive does not exist, may know with clarity and precision, what are, in all circumstances, their rights and obligations (see, to that effect, Commission v Greece , paragraph 27; Commission v Ireland , paragraph 12; Case C‑441/00 Commission v United Kingdom , paragraph 16; and Commission v Luxembourg , paragraph 13).
|
12 It is necessary that all persons subject to the law in Ireland, like other persons subject to the law within the Community, should know what their rights and duties are if and when a high-speed rail system is created and operated in that Member State.
|
34 As the Court held in Fisscher, the fact that a worker can claim retroactive membership of an occupational pension scheme does not enable him to avoid paying contributions for the period of membership concerned.
Fifth question
|
48. It must, however, be pointed out that that line of argument has been dismissed by the Court not only, as those governments claim, as regards the calculation of transfer duties payable in respect of the gift of an immovable property ( Mattner , paragraphs 35 to 38) but also as regards the calculation of inheritance tax payable in respect of such a property ( Jäger , paragraph 44; Eckelkamp and Others , paragraphs 61 to 63; and Arens-Sikken , paragraphs 55 to 57).
|
63. Where national legislation places the heirs of a person who, at the time of death, had the status of resident and those of a person who, at the time of death, had the status of non-resident on the same footing for the purposes of taxing an inherited immovable property which is situated in the Member State concerned, that legislation cannot, without giving rise to discrimination, treat those heirs differently in the taxation of that property so far as concerns the deductibility of charges secured on it. By treating the inheritances of those two categories of persons in the same way (except in relation to the deduction of debts) for the purposes of taxing their inheritance, the national legislature has in fact admitted that there is no objective difference between them in regard to the detailed rules and conditions relating to that taxation which could justify different treatment (see, by analogy, in relation to the right of establishment, Case 270/83 Commission v France [1986] ECR 273, paragraph 20, and Case C‑170/05 Denkavit Internationaal and Denkavit France [2006] ECR I‑11949, paragraph 35; and, in relation to the free movement of capital and inheritance duties, Case C‑43/07 Arens-Sikken [2008] ECR I‑0000, paragraph 57).
|
12 THIS DOUBLE AIM , WHICH IS AT ONCE ECONOMIC AND SOCIAL , SHOWS THAT THE PRINCIPLE OF EQUAL PAY FORMS PART OF THE FOUNDATIONS OF THE COMMUNITY .
|
32. It is true that this principle of interpreting national law in conformity with EU law has certain limitations. Thus the obligation on a national court to refer to the content of EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem (see to that effect, judgments in Impact , C‑268/06, EU:C:2008:223, paragraph 100, and Association de médiation sociale , C‑176/12, EU:C:2014:2, paragraph 39).
|
39. Nevertheless, the Court has stated that this principle of interpreting national law in conformity with European Union law has certain limits. Thus the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem (see Case C-268/06 Impact [2008] ECR I-2483, paragraph 100, and Dominguez , paragraph 25).
|
87. Ainsi, les propositions de la Commission ne sauraient lier la Cour et ne constituent qu’une base de référence utile. De même, des lignes directrices telles que celles contenues dans les communications de la Commission ne lient pas la Cour, mais contribuent à garantir la transparence, la prévisibilité et la sécurité juridique de l’action menée par cette institution (arrêt Commission/Grèce, C‑369/07, EU:C:2009:428, point 112 et jurisprudence citée).
Sur l’astreinte
|
31. Third, with regard to the claim that the summary of the facts in the main proceedings is inaccurate and deficient, it is sufficient to note, as is also apparent from paragraph 29 above, that it is for the national court alone to define the factual parameters of the dispute which gave rise to the questions and it is not the task of the Court of Justice to give a ruling on that court’s assessment of the facts (see, to that effect, judgment in van Delft and Others , C‑345/09, EU:C:2010:610, paragraph 114).
|
114. It is not for the Court, in the context of a reference for a preliminary ruling, to rule on the interpretation of provisions of national law or on the assessment of the factual context of the main proceedings, which is a task reserved exclusively for the referring court (see, to that effect, inter alia, Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others [2009] ECR I‑3071, paragraph 48).
|
22 Article 4, relating to temporary importation for private use of a means of transport other than a commercial vehicle, sets at six months, whether continuous or not, in a 12-month period, the period during which that means of transport may remain in the country. It provides that that period may be extended by an additional nine months, unless the person concerned engages in business activity in Greece, in which case such extension is limited to a maximum of three months.
|
38
The charging system introduced by Directive 2001/14 as a management tool also serves to ensure pursuit of another objective, namely that of the independence of the infrastructure manager (see, to that effect, judgments of 28 February 2013, Commission v Spain, C‑483/10, EU:C:2013:114, paragraph 44, and of 28 February 2013, Commission v Germany, C‑556/10, EU:C:2013:116, paragraph 82).
|
44. First, one of the objectives pursued by the charging system established by Directive 2001/14 is to ensure the management independence of the infrastructure manager. In other words, the infrastructure manager must use the charging scheme as a management tool, as pointed out by the Advocate General at point 50 of his Opinion. Thus, recital 12 in the preamble to that directive states that charging and capacity-allocation schemes should encourage railway infrastructure managers to optimise use of their infrastructure within the framework established by the Member States. Those managers could not achieve such optimal use by means of the charging system if their role was confined to calculating the amount of the charge in each individual case, applying a formula established in advance by ministerial order. Infrastructure mangers must therefore be given a degree of flexibility in setting the amount of charges.
|
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.
|
80. As the Court has repeatedly held, an act is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see, to that effect, inter alia, Case C‑48/96 P Windpark Groothusen v Commission [1998] ECR I‑2873, paragraph 52, and Case C‑310/04 Spain v Council [2006] ECR I‑7285, paragraph 69).
|
52 It is sufficient to note on this point that the Court has consistently held that misuse of powers is the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see inter alia Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69).
|
36 A condition such as the employment of long-term unemployed persons is an additional specific condition and must therefore be mentioned in the notice, so that contractors may become aware of its existence .
|
85. The Court has already held that budgetary considerations cannot justify discrimination against one of the sexes. To concede that such considerations may justify a difference in treatment between men and women which would otherwise constitute indirect discrimination on grounds of sex would mean that the application and scope of a rule of Community law as fundamental as that of equal treatment between men and women might vary in time and place according to the state of the public finances of Member States (Roks , paragraphs 35 and 36; Case C-226/98 Jørgensen [2000] ECR I-2447, paragraph 39; and Kutz-Bauer , paragraphs 59 and 60).
|
60. Moreover, to concede that budgetary considerations may justify a difference in treatment between men and women which would otherwise constitute indirect discrimination on grounds of sex would mean that the application and scope of a rule of Community law as fundamental as that of equal treatment between men and women might vary in time and place according to the state of the public finances of Member States (De Weerd and Others , cited above, paragraph 36, and Jørgensen , cited above, paragraph 39).
|
32 The term "establishment" appearing in Article 1(1)(a) of the Directive must therefore be interpreted as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential, in order for there to be an "establishment", for the unit in question to be endowed with a management which can independently effect collective redundancies.
|
39. It must be recalled that, in order to assess whether or not a trade mark has any distinctive character, the overall impression given by it must be considered. That does not mean, however, that there is no need, first of all, to carry out a successive examination of the different presentational features used by this mark. It may be useful, in the course of the overall assessment, to examine each of the constituent features of the trade mark (see, in this respect, Case C-286/04 P Eurocermex v OHIM [2005] ECR I‑5797, paragraphs 22 and 23, and the case-law cited there).
|
22. As the Court has consistently held, and as the Court of First Instance indeed recalled in paragraph 25 of the judgment under appeal, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. Thus, in order to assess whether or not a trade mark has any distinctive character, the overall impression given by it must be considered (see, inter alia, Joined Cases C-468/01 P to C-472/01 P Procter & Gamble v OHIM [2004] ECR I-5141, paragraph 44, and Case C-136/02 P Mag Instrument v OHIM [2004] ECR I-0000, paragraph 20).
|
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.
|
21. In that regard, the Court has consistently held that the letter of formal notice sent by the Commission to a Member State, and the reasoned opinion issued by the Commission, delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the EC Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations (see, in particular, Case C‑365/97 Commission v Italy [1999] ECR I‑7773, paragraph 23, and Case C‑441/02 Commission v Germany [2006] ECR I‑3449, paragraph 59).
|
59. The Court has consistently held (see, inter alia, Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 23) that the letter of formal notice sent by the Commission to a Member State, and the reasoned opinion issued by the Commission, delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the EC Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations.
|
36. Il est de jurisprudence constante que, s’agissant d’une marque complexe, telle que celle en cause en l’espèce, l’appréciation de son caractère distinctif ne peut se limiter à une analyse de chacun de ses termes ou de ses éléments, considérés isolément, mais doit, en tout état de cause, se fonder sur la perception globale de cette marque par le public pertinent et non sur la présomption que des éléments dépourvus isolément de caractère distinctif ne peuvent, une fois combinés, présenter un tel caractère (arrêt du 8 mai 2008, Eurohypo/OHMI, C‑304/06 P, Rec. p. I‑3297, point 41 et jurisprudence citée). En effet, la seule circonstance que chacun de ces éléments, pris séparément, est dépourvu de caractère distinctif n’exclut pas que la combinaison qu’ils forment puisse présenter un tel caractère (arrêt Eurohypo/OHMI, précité, point 41 et jurisprudence citée).
|
50. Relying on the judgment in Mecklenburg (C‑321/96, EU:C:1998:300, paragraphs 27 and 30), ClientEarth adds that, even if it were accepted that the contested studies are part of the preliminary stage of formal infringement proceedings, the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 can justify a refusal to disclose only in the event that the existence of the document requested immediately precedes the opening of a contentious or quasi-contentious procedure and arises from the need to obtain proof or to investigate a matter prior to the opening of the actual procedure. Yet in this case, the contested studies did not immediately precede a decision to initiate, following an investigation, infringement proceedings under Article 258 TFEU.
|
30 In the light of those considerations the reply to the second question is that the term `preliminary investigation proceedings' in the third indent of Article 3(2) of the directive must be interpreted as including an administrative procedure such as that referred to in Paragraph 7(1)(2) of the UIG, which merely prepares the way for an administrative measure, only if it immediately precedes a contentious or quasi-contentious procedure and arises from the need to obtain proof or to investigate a matter prior to the opening of the actual procedure.
|
En deuxième lieu, en ce qui concerne le bien-fondé des raisons exposées par le Tribunal à cet égard, il convient de rejeter
l’argument tiré de la prétendue violation du principe de non-rétroactivité en ce que le Tribunal aurait erronément constaté
que les changements introduits par les lignes directrices de 2006 étaient raisonnablement prévisibles.
|
145 In complaining that the Court of First Instance attributed responsibility for the infringement to it although it had transferred its polypropylene business to Monte, Anic is disregarding the principle of personal responsibility and neglecting the decisive factor, identifiable from the case-law of the Court of Justice (see to this effect Suiker Unie and Others v Commission, cited above, paragraphs 80 and 84), that the `economic continuity' test can only apply where the legal person responsible for running the undertaking has ceased to exist in law after the infringement has been committed. It also follows that the application of these tests is not contrary in any way to the principle of legal certainty.
|
80 THE FOUR COOPERATIVES WHICH WERE MEMBERS OF THE FORMER ASSOCIATION WERE DISSOLVED ON 31 DECEMBER 1970 AND ON 1 JANUARY 1971 THE APPLICANT ASSUMED ALL THEIR RIGHTS AND LIABILITIES .
|
36. The words used leave the Member States some latitude as to the means to be adopted for the purposes of that protection.
|
46. With regard to the principle of the protection of legitimate expectations, it follows from settled case-law that a new rule applies immediately to the future effects of a situation which arose under the old rule and that the scope of the principle of the protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which arose under the earlier rules (see, inter alia, Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, paragraphs 50 and 55).
|
55 It follows from settled case-law that the scope of the principle of the protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which arose under the earlier rules (see, among other cases, Case 278/84 Germany v Commission [1987] ECR 1, paragraph 36, and Case C-60/98 Butterfly Music [1999] ECR I-3939, paragraph 25).
|
69. However, having regard to the sensitive nature of questions relating to a person’s personal identity and, in particular, his sexuality, it cannot be concluded that the declared sexuality lacks credibility simply because, due to his reticence in revealing intimate aspects of his life, that person did not declare his homosexuality at the outset.
|
69. However, as the Court has already held and in so far as Directive 2009/28 had already entered into force at the time of the facts in the main proceedings, the interpretation of that directive sought by the referring court must be regarded as being useful to that court (see, to that effect, Joined Cases C‑261/07 and C‑299/07 VTB-VAB and Galatea [2009] ECR I‑2949, paragraphs 29 to 41).
|
33. It follows that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases and, in particular, where it is quite obvious that the interpretation which is sought of the provisions of Community law referred to in the questions bears no relation to the actual facts of the main action or to its purpose (see, inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 61, and Case C‑212/06 Gouvernement de la Communauté française et gouvernement wallon [2008] ECR I‑1683, paragraph 29).
|
88
In such circumstances, the contracting entity may, for the purposes of the proper performance of the contract concerned, expressly set out in the tender notice or the tender specifications the specific rules authorising an economic operator to rely on the capacities of other entities, provided that those rules are related and proportionate to the subject matter and objectives of that contract (see, to that effect, judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraphs 54 to 56).
|
51 This argument cannot be accepted.
|
9 IT MAY BE SEEN FROM THE PREAMBLES TO THE DECISIONS AT ISSUE , WHICH ARE NOT CONTESTED ON THIS POINT , THAT THE REQUIRED PROCEDURE WAS FOLLOWED IN THIS CASE . THAT PROCEDURE ALLOWED THE APPLICANTS TO PUT ALL THEIR ARGUMENTS TO THE NETHERLANDS AUTHORITIES . ALL THE DOCUMENTS ON THE FILE WERE AVAILABLE BOTH TO THE COMMITTEE ON DUTY-FREE ARRANGEMENTS AND TO THE COMMISSION . IN THOSE CIRCUMSTANCES , THE COMPLAINT BASED ON A BREACH OF THE PROCEDURAL REQUIREMENTS MUST BE DISMISSED .
|
22 It is consequently a matter for the Member States, when transposing Article 13B(b)(1) of the Sixth Directive, to introduce those criteria which seem to them appropriate in order to draw that distinction.
|
49. Questions 2(a) and (b) concern matters harmonised by directives 73/23, 89/336 and 1999/5. As the Court has consistently held, national measures relating to such matters must be assessed in the light of those directives and not of Articles 28 EC and 30 EC (see, in particular, Case C-99/01 Linhart and Biffl [2002] ECR I-9375, paragraph 18).
|
18 As the Court has already held, where a matter is regulated in a harmonised manner at Community level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not of Articles 30 and 36 of the Treaty (Case C-150/88 Parfümerie-Fabrik 4711 [1989] ECR 3891, paragraph 28, Case C-37/92 Vanacker and Lesage [1993] ECR I-4947, paragraph 9, and Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 32).
|
22 The trustees themselves, although not party to the employment relationship, are required to pay benefits which do not thereby lose their character of pay within the meaning of Article 119. They are therefore bound, in so doing, to do everything within the scope of their powers to ensure compliance with the principle of equal treatment.
|
38
Lastly, the fact that the investments were largely financed by aids granted by the Member State and the European Union cannot have a bearing on whether or not the activity pursued or planned by the applicants in the main proceedings is to be regarded as an economic activity, since the concept of ‘economic activity’ is objective in nature and applies not only without regard to the purpose or results of the transactions concerned but also without regard to the method of financing chosen by the operator concerned, which also holds true in relation to public subsidies (see, as regards the prohibition of limiting the right to deduct, judgments of 6 October 2005 in Commission v France, C‑243/03, EU:C:2005:589, paragraphs 32 and 33, and 23 April 2009 in PARAT Automotive Cabrio, C‑74/08, EU:C:2009:261, paragraphs 20 and 26).
|
32. As the Commission has rightly pointed out, with the exception of those two provisions, the Sixth Directive makes no provision for subsidies to be taken into account in the calculation of VAT.
|
45 However, there is nothing in Regulation No 2081/92 to indicate that such geographical indications of source cannot be protected under the national legislation of a Member State.
|
20. It should be recalled that Articles 101(1) TFEU and 102 TFEU produce direct effects in relations between individuals and create rights for the individuals concerned, which the national courts must safeguard (see Case C‑127/73 BRT and SABAM EU:C:1974:25, paragraph 16; Courage and Crehan EU:C:2001:465, paragraph 23; and Manfredi and Others EU:C:2006:461, paragraph 39).
|
16 AS THE PROHIBITIONS OF ARTICLES 85 ( 1 ) AND 86 TEND BY THEIR VERY NATURE TO PRODUCE DIRECT EFFECTS IN RELATIONS BETWEEN INDIVIDUALS, THESE ARTICLES CREATE DIRECT RIGHTS IN RESPECT OF THE INDIVIDUALS CONCERNED WHICH THE NATIONAL COURTS MUST SAFEGUARD .
|
35. Admittedly, this aim of solidarity may constitute an objective consideration of public interest. It is still necessary for the condition of proportionality outlined in paragraph 33 above to be met. It follows from the case-law that a measure is proportionate when, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain it ( De Cuyper , paragraph 42).
|
63
Complaints directed against grounds of the judgment under appeal included purely for the sake of completeness cannot lead to the judgment’s being set aside (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 79 and the case-law cited).
|
79. According to settled case-law, the Court of Justice will reject outright complaints directed against grounds of a judgment of the General Court included purely for the sake of completeness, since they cannot lead to the judgment’s being set aside and are therefore ineffective (see, inter alia, Case C‑399/08 P C ommission v Deutsche Post [2010] ECR I‑0000, paragraph 75, and Case C‑96/09 P Anheuser-Busch v Budějovický Budvar [2011] ECR I‑0000, paragraph 211 and case-law cited).
|
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.
|
12 In Case C-308/93 Cabanis-Issarte [1996] ECR I-2097, the Court nevertheless limited the scope of that restriction to those provisions of Regulation No 1408/71 which are applicable solely to workers. Thus, the spouse of a Community worker cannot rely on his or her status as a member of the worker's family in order to claim rights under the provisions of Title III, Chapter 6, of Regulation No 1408/71 (Unemployment Benefits), the main purpose of which is merely to coordinate rights to unemployment benefits provided by virtue of the national legislation of the Member States for employed persons who are nationals of a Member State and not for members of their families (see Cabanis-Issarte, paragraph 23, and Joined Cases C-245/94 and C-312/94 Hoever and Zachow [1996] ECR I-4895, paragraph 32).
Observations submitted to the Court
|
23 Thus, the spouse of a Community worker cannot rely on his or her status as a member of the worker' s family in order to claim application of Articles 67 to 71 of Regulation No 1408/71, the main purpose of which is coordination of rights to unemployment benefits provided by virtue of the national legislation of the Member States for employed persons who are nationals of a Member State and not for members of their families.
|
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.
|
123. It follows that the differences in development between the original and the new Länder are explained by causes other than the geographical rift caused by the division of Germany and in particular by the different politico-economic systems set up in each part of Germany (Germany v Commission , paragraph 54).
|
54 The economic disadvantages suffered by the new Länder as a whole have not been directly caused by the geographical division of Germany within the meaning of Article 92(2)(c) of the Treaty.
|
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).
|
27 As the Belgian Government rightly pointed out at the hearing, it cannot be contended that the measures in question constitute State aid on the ground that the competent national authorities have a discretionary power in the application of the increased reduction of social charges (see France v Commission, cited above, paragraph 23). In this instance, the conditions for the grant of the increased reductions in question are laid down by the Belgian legislature, in the aforementioned royal decrees, and leave the competent authorities no latitude, in particular in the choice of recipient undertakings or sectors.
|
24 In those circumstances, it must be held that, by virtue of its aim and general scheme, the system under which the FNE contributes to measures accompanying social plans is liable to place certain undertakings in a more favourable situation than others and thus to meet the conditions for classification as aid within the meaning of Article 92(1) of the Treaty.
|
36. According to the settled case-law of the Court, although direct taxation falls within their competence, the Member States must none the less exercise that competence consistently with EU law (see, inter alia, Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 36; Case C-379/05 Amurta [2007] ECR I-9569, paragraph 16; Case C-540/07 Commission v Italy [2009] ECR I-10983, paragraph 28; and Case C-487/08 Commission v Spain [2010] ECR I-4843, paragraph 37, and Case C-284/09 Commission v Germany [2011] ECR I-9879, paragraph 44).
|
28
In that regard, it should be noted that although the terms ‘give judgment’, within the meaning of the second paragraph of Article 267 TFEU, encompass the whole procedure leading to the referring court’s judgment, they must be interpreted broadly in order to prevent many procedural questions from being regarded as inadmissible and from being unable to be the subject of interpretation by the Court and the latter from being unable to interpret all procedural provisions of EU law that the referring court is required to apply (see, to that effect, judgments of 17 February 2011 in Weryński, C‑283/09, EU:C:2011:85, paragraphs 41 and 42, and of 11 June 2015 in Fahnenbrock and Others, C‑226/13, C‑245/13, C‑247/13 and C‑578/13, EU:C:2015:383, paragraph 30).
|
41. It follows that only a broad interpretation of the concept ‘give judgment’ within the meaning of the second paragraph of Article 267 TFEU would make it possible to prevent many procedural questions, in particular those which arise in the application of Regulation No 1206/2001, from being regarded as inadmissible and from being unable to be the subject of interpretation by the Court.
|
54. Il résulte des articles 2 et 10 de l’acte d’adhésion que celui-ci est fondé sur le principe de l’application immédiate et intégrale des dispositions du droit de l’Union aux nouveaux États membres, des dérogations n’étant admises que dans la mesure où elles sont prévues expressément par les dispositions transitoires (voir, en ce sens, arrêt du 28 octobre 2010, Commission/Lituanie, C‑350/08, non encore publié au Recueil, point 55 et jurisprudence citée).
|
39. Legislation of a Member State, such as that at issue in the main proceedings, which prohibits the operation of gaming machines in the absence of the prior authorisation of the administrative authorities constitutes a restriction of the freedom to provide services guaranteed by Article 56 TFEU (see, to that effect, inter alia, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others EU:C:2007:133, paragraph 42).
|
42. The Court has already ruled that, in so far as the national legislation at issue in the main proceedings prohibits – on pain of criminal penalties – the pursuit of activities in the betting and gaming sector without a licence or police authorisation issued by the State, it constitutes a restriction on the freedom of establishment and the freedom to provide services (see Gambelli and Others , paragraph 59 and the operative part).
|
26 L' ARTICLE 95 NE PEUT PAS ETRE INTERPRETE DANS UN SENS CONTRAIRE AU BUT CI-DESSUS INDIQUE . EN EFFET, AUX TERMES DE L' ARTICLE 9, ALINEA 1, DU TRAITE, LA COMMUNAUTE EST FONDEE SUR UNE UNION DOUANIERE QUI S' ETEND A L' ENSEMBLE DES ECHANGES DE MARCHANDISES ET QUI COMPORTE L' ADOPTION D' UN TARIF DOUANIER COMMUN . AINSI QUE LA COUR L' A RAPPELE DANS SON ARRET DU 15 DECEMBRE 1976 ( DONCKERWOLCKE, 41/76, REC . P.*1921 ), AUX TERMES DU PARAGRAPHE 2 DE L' ARTICLE 9, LES MESURES PREVUES POUR LA LIBERATION DES ECHANGES ENTRE ETATS MEMBRES S' APPLIQUENT DE MANIERE IDENTIQUE TANT AUX PRODUITS ORIGINAIRES DES ETATS MEMBRES QU' AUX PRODUITS QUI SE TROUVENT EN LIBRE PRATIQUE DANS LA COMMUNAUTE CONFORMEMENT AUX EXIGENCES POSEES PAR L' ARTICLE 10 . A CET EGARD, LA COUR A PRECISE QUE, POUR CE QUI CONCERNE LA LIBRE CIRCULATION DES MARCHANDISES A L' INTERIEUR DE LA COMMUNAUTE, LES PRODUITS BENEFICIANT DE LA LIBRE PRATIQUE SONT DEFINITIVEMENT ET TOTALEMENT ASSIMILES AUX PRODUITS ORIGINAIRES DES ETATS MEMBRES .
|
14 It follows from the general and absolute nature of the prohibition of all customs duties applicable to goods moving between Member States that customs duties are prohibited regardless of the purpose for which they were introduced and the destination of the revenue from them (see, inter alia, Joined Cases 2/69 and 3/69 Sociaal Fonds voor de Diamantarbeiders v Brachfeld [1969] ECR 211, paragraph 13).
|
13 QU ' IL RESULTE DE L ' ENSEMBLE DU SYSTEME , ET DU CARACTERE GENERAL ET ABSOLU DE L ' INTERDICTION DE TOUT DROIT DE DOUANE APPLICABLE AUX MARCHANDISES CIRCULANT ENTRE LES ETATS MEMBRES , QUE LES DROITS DE DOUANE SONT INTERDITS INDEPENDAMMENT DE TOUTE CONSIDERATION DU BUT EN VUE DUQUEL ILS ONT ETE INSTITUES , AINSI QUE DE LA DESTINATION DES RECETTES QU ' ILS PROCURENT ;
|
16. In this respect, first of all, it must be observed – as the Austrian Government submits – that Community law does not limit the power of the Member States to organise their social security schemes and that, in the absence of harmonisation at Community level, it is for the legislation of each Member State to lay down the conditions under which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. However, when exercising that power, the Member States must comply with Community law and, in particular, the EC Treaty provisions on freedom of movement for workers or again the freedom of every citizen of the European Union to move and reside in the territory of the Member States (Case C‑135/99 Elsen [2000] ECR I‑10409, paragraph 33).
|
40. In consequence, and contrary to what was argued at the hearing by the defendant in the main proceedings, although, by reason of the duty of the European institutions and national authorities to cooperate in good faith laid down in Articles 4(3) TEU and 18 of the Protocol, the European Parliament and the national courts must indeed cooperate in order to avoid any conflict in the interpretation and application of the provisions of the Protocol ( Marra , paragraph 42), EU law does not place the national court making the reference under any particular obligation as regards the reasons given for its decisions if, having regard to the interpretation provided by this judgment given pursuant to Article 267 TFEU, it should decide not to follow the opinion of the European Parliament of which it had been informed, concerning the application of Article 8 of the Protocol to the facts in the main proceedings.
|
42. It must be held that that duty of cooperation applies in the context of disputes such as those in the main proceedings. The European Parliament and the national judicial authorities must therefore cooperate in order to avoid any conflict in the interpretation and application of the provisions of the Protocol.
|
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.
|
Par ailleurs, la Cour a déjà confirmé la possibilité de prendre en considération l’interprétation de dispositions imposant
des mesures restrictives en tenant compte de la rédaction divergente de ces dispositions dans les différentes versions linguistiques,
de leur contexte et de leur finalité (voir, en ce sens, arrêt du 5 mars 2015, Ezz e.a./Conseil, C‑220/14 P, EU:C:2015:147,
points 69 à 72).
|
70. The General Court did not err in law when, in paragraph 66 of the judgment under appeal, it identified the objective of those acts as being to assist the Egyptian authorities in their fight against the misappropriation of State funds. That objective is clear from recital 2 of Decision 2011/172.
|
10 MOREOVER THE WORKER WILL NORMALLY RECEIVE THE BENEFITS LEGALLY PRESCRIBED NOT BY REASON OF THE EMPLOYER' S CONTRIBUTION BUT SOLELY BECAUSE THE WORKER FULFILS THE LEGAL CONDITIONS FOR THE GRANT OF BENEFITS .
|
35. Indeed, it is apparent from the Court’s well established case-law that the text of Article 81(1) EC refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the common market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgments in LTM , 56/65, EU:C:1966:38, p. 358; Consten and Grundig v Commission , 56/64 and 58/64, EU:C:1966:41, p.p. 492 and 493; Musique Diffusion française and Others v Commission , 100/80 to 103/80, EU:C:1983:158, paragraphs 72 to 80; Binon , 243/83, EU:C:1985:284, paragraphs 39 to 47; and Javico , C‑306/96, EU:C:1998:173, paragraphs 10 to 14).
|
12 In order to determine whether agreements such as those concluded by YSLP with Javico fall within the prohibition laid down by that provision it is necessary to consider whether the purpose or effect of the ban on supplies which they entail is to restrict to an appreciable extent competition within the common market and whether the ban may affect trade between Member States.
|
74. However, it is settled case‑law that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject, as such, to review by the Court of Justice (Case C‑304/06 P Eurohypo v OHIM [2008] ECR I‑3297, paragraph 33 and the case‑law cited).
|
39
It must be recalled that the question of the applicability of Articles 49 and 54 TFEU is different from the question of whether a Member State may adopt measures in order to prevent attempts by certain of its nationals to evade domestic legislation, given that, in accordance with settled case-law, it is open to a Member State to adopt such measures (judgments of 9 March 1999, Centros, C‑212/97, EU:C:1999:126, paragraphs 18 and 24, and of 30 September 2003, Inspire Art, C‑167/01, EU:C:2003:512, paragraph 98)
|
24 It is true that according to the case-law of the Court a Member State is entitled to take measures designed to prevent certain of its nationals from attempting, under cover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent individuals from improperly or fraudulently taking advantage of provisions of Community law (see, in particular, regarding freedom to supply services, Case 33/74 Van Binsbergen v Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299, paragraph 13, Case C-148/91 Veronica Omroep Organisatie v Commissariaat voor de Media [1993] ECR I-487, paragraph 12, and Case C-23/93 TV 10 v Commissariaat voor de Media [1994] ECR I-4795, paragraph 21; regarding freedom of establishment, Case 115/78 Knoors [1979] ECR 399, paragraph 25, and Case C-61/89 Bouchoucha [1990] ECR I-3551, paragraph 14; regarding the free movement of goods, Case 229/83 Leclerc and Others v `Au Blé Vert' and Others [1985] ECR 1, paragraph 27; regarding social security, Case C-206/94 Brennet v Paletta [1996] ECR I-2357, `Paletta II', paragraph 24; regarding freedom of movement for workers, Case 39/86 Lair v Universität Hannover [1988] ECR 3161, paragraph 43; regarding the common agricultural policy, Case C-8/92 General Milk Products v Hauptzollamt Hamburg-Jonas [1993] ECR I-779, paragraph 21, and regarding company law, Case C-367/96 Kefalas and Others v Greece [1988] ECR I-2843, paragraph 20).
|
45. It does not follow that objectives such as the fight against crime in connection with dealing in narcotics as part of an organised group are necessarily excluded from that concept.
|
74. As the Court has already held, Directive 2005/29 is characterised by a particularly wide scope ratione materiae which extends to any commercial practice directly connected with the promotion, sale or supply of a product to consumers (judgment in Mediaprint Zeitungs- und Zeitschriftenverlag , C‑540/08, EU:C:2010:660, paragraph 21).
|
21. As has been stated at paragraph 17 of the present judgment, the Directive is characterised by a particularly wide scope ratione materiae which extends to any commercial practice directly connected with the promotion, sale or supply of a product to consumers. As is evident from recital 6 in the preamble to the Directive, only national legislation relating to unfair commercial practices which harm ‘only’ competitors’ economic interests or which relate to a transaction between traders is thus excluded from that scope.
|
37. À cet égard, il y a lieu de relever que le fait que la Commission a détaillé, dans son mémoire en réplique, le grief qu’elle avait déjà fait valoir de manière plus générale dans la requête n’a pas modifié l’objet du manquement allégué et n’a donc eu aucune incidence sur la portée du litige (voir, en ce sens, arrêt Commission/Portugal, C‑543/08, EU:C:2010:669, point 23).
|
58 In that connection, the case-law of the Court of Justice shows that only advantages granted directly or indirectly through State resources are to be considered aid within the meaning of Article 92(1). The distinction made in that provision between aid granted by a Member State and aid granted through State resources does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (see Case 82/77 Van Tiggele [1978] ECR 25, paragraphs 24 and 25; Sloman Neptun, paragraph 19; Case C-189/91 Kirsammer-Hack [1993] ECR I-6185, paragraph 16; Joined Cases C-52/97, C-53/97 and C-54/97 Viscido [1998] ECR I-2629, paragraph 13; Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 35; Case C-295/97 Piaggio [1999] ECR I-3735, paragraph 35).
|
24WHATEVER DEFINITION MUST BE PLACED UPON THE CONCEPT OF AN ' AID ' WITHIN THE MEANING OF THAT ARTICLE IT IS CLEAR FROM THE WORDING THEREOF THAT A MEASURE CHARACTERIZED BY THE FIXING OF MINIMUM RETAIL PRICES WITH THE OBJECTIVE OF FAVOURING DISTRIBUTORS OF A PRODUCT AT THE EXCLUSIVE EXPENSE OF CONSUMERS CANNOT CONSTITUTE AN AID WITHIN THE MEANING OF ARTICLE 92 .
|
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.
|
14 The Court has consistently held, first, 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 (see, in particular, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26) and, second, that a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, inter alia, Case C-374/98 Commission v France [2000] ECR I-10799, paragraph 13).
Transposition of Directive 97/11 by the Région de Bruxelles-Capitale
|
26 It follows from the general scheme of Article 4 of the birds directive that, where a given area fulfils the criteria for classification as an SPA, it must be made the subject of special conservation measures capable of ensuring, in particular, the survival and reproduction of the bird species mentioned in Annex I to that directive.
|
25 If the advantages for domestic production fully offset the burden borne by it, the charge levied on the product must, being a charge having an effect equivalent to a customs duty, be regarded as unlawful in its entirety; if on the contrary those advantages only partly offset the burden borne by domestic production, the charge levied on the imported product, which is legal in principle, will simply have to be reduced proportionally (Case 94/74 IGAV v ENCC [1975] ECR 699, paragraph 13, and Compagnie Commerciale de l'Ouest and Others, cited above, paragraph 27).
|
23. Consequently, the power granted to the Member States in Article 17(6) of the Sixth Directive does not constitute an unfettered discretion to exclude all, or virtually all, goods and services from the right to deduct VAT, and thus to render meaningless the system established in Article 11(1) of the Second Directive. That power does not therefore apply to general exclusions and does not release Member States from the obligation sufficiently to define the goods and services in relation to which the right to deduct is excluded (see, to that effect, Royscot and Others , paragraphs 22 and 24, and Case C‑434/03 Charles and Charles-Tijmens [2005] ECR I‑7037, paragraphs 33 and 35).
|
24 Admittedly, as Royscot, Harrison and Domecq submit, Article 11(4) of the Second Directive did not confer on Member States an unlimited discretion to exclude all and any goods and services from the system of the right of deduction and thereby negate the system established by Article 11(1) of that directive.
|
15. CML and CARC were not immediately liable for the non-deductible VAT on the total cost of the equipment purchased, but on the amount of rent relating to that equipment, spread over the term of the leasing agreements.
|
55. First of all, it should be stated that point 1(e) of the annex to that directive mentions, among the terms which may be declared unfair within the meaning of Article 3(3) of that directive, terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation. The Court has held in that regard that, while the content of that annex does not suffice in itself to establish automatically the unfair nature of a contested term, it is nevertheless an essential element on which the competent court may base its assessment as to the unfair nature of that term (Case C‑472/10 Invitel [2012] ECR I‑0000, paragraph 26).
|
26. If the content of the annex does not suffice in itself to establish automatically the unfair nature of a contested term, it is nevertheless an essential element on which the competent court may base its assessment as to the unfair nature of that term. In the present case, it is clear from a reading of the provisions of the annex to the Directive, referred to in paragraph 24 of the present judgement, that, in assessing the unfair nature of a term such as that at issue in the main proceedings, the question whether the reasons for, or the method of, the variation of the fees connected with the service provided were specified and whether the consumer had the right to terminate the contract is particularly relevant.
|
13 HOWEVER , IN EXERCISING ITS OWN POWERS , THE APPOINTING AUTHORITY IS REQUIRED TO TAKE DECISIONS WHICH ARE FREE OF IRREGULARITIES . IT CANNOT THEREFORE BE BOUND BY DECISIONS OF A SELECTION BOARD WHERE THE ILLEGALITY OF THOSE DECISIONS IS LIABLE TO VITIATE ITS OWN DECISIONS .
|
43. Secondly, the wishes of the defendant in the main proceedings cannot be deduced from the conduct of a legal representative appointed by those courts in the absence of the defendant. Since that representative has no contact with the defendant, he cannot obtain from him the information necessary to accept or contest the jurisdiction of those courts in full knowledge of the facts (see, to that effect, judgment in A , C‑112/13, EU:C:2014:2195, paragraph 55).
|
55. Furthermore, an absent defendant who is unaware of the action brought against him or of the appointment of a representative to act on his behalf cannot provide that representative with all the information necessary, for the purposes of determining whether the court seised has international jurisdiction, which would enable him effectively to contest that jurisdiction or to accept it in full knowledge of the facts. Nor, accordingly, may an appearance entered by a court-appointed representative be regarded as tacit acceptance, by the defendant, of the jurisdiction of that court.
|
39. In that regard, as the Austrian Government and the Commission have pointed out, the change in some language versions of the Implementing Regulation to the wording of the definition of ‘internal traffic’ from that used in Article 670 does not alter the content of that provision. It is settled law that in the case of divergence between the different language versions of a text of European Union law, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part (see, inter alia, Case C‑340/08 M and Others [2010] ECR I-0000, paragraph 44). As is apparent from paragraph 35 above, an interpretation of Article 555 that bases the establishment of an irregularity on the intent of the haulier would be inconsistent with the scheme of the rules of which that provision forms part.
|
53. When assessing the generic character of a name, the Court has held that it is necessary, under Article 3(1) of Regulation 2081/92, to take into account the places of production of the product concerned both inside and outside the Member State which obtained the registration of the name at issue, the consumption of that product and how it is perceived by consumers inside and outside that Member State, the existence of national legislation specifically relating to that product, and the way in which the name has been used in Community law (see Joined Cases C-465/02 and C-466/02 Germany and Denmark v Commission [2005] ECR I-9115, paragraphs 76 to 99).
|
86. The information provided to the Court indicates that the majority of consumers in Greece consider that the name ‘feta’ carries a geographical and not a generic connotation. In Denmark, by contrast, the majority of consumers believe that the name is generic. The Court does not have any conclusive evidence regarding the other Member States.
|
8. En vertu d’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 (voir, notamment, arrêts du 14 septembre 2004, Commission/Espagne, C‑168/03, Rec. p. I‑8227, point 24, et du 5 février 2009, Commission/Luxembourg, C‑282/08, point 10).
|
34. In that regard, it must be borne in mind that the Court has held that Directive 2003/88 does not preclude provisions of national law giving entitlement to more than four weeks’ paid annual leave, granted under the conditions for entitlement to, and granting of, the right to paid annual leave laid down by that national law (judgment of 24 January 2012 in Case C‑282/10 Dominguez , paragraph 47).
|
47. However, as stated both by the Advocate General in point 178 of her Opinion and by the European Commission in its written observations, the finding made in the preceding paragraph does not mean that Directive 2003/88 precludes national provisions giving entitlement to more than four weeks’ paid annual leave, granted under the conditions for entitlement to, and granting of, the right to paid annual leave laid down by that national law.
|
32 Furthermore, the explanatory memorandum in the initial proposal for the Regulation (COM(90) 415 final - SYN 305 of 26 October 1990) states that the criterion of proximity might justify intervention from the authorities in regard to waste for disposal. That criterion is not mentioned in regard to waste for recovery; in regard to the latter, only the criterion of environmentally sound management might be applied.
|
51. As regards the justification based on the additional burden which would result from non-application of the residence requirement, it should be borne in mind that, although budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against migrant workers (see Commission v Netherlands , paragraph 57 and case-law cited).
|
57. As regards the justification based on the additional burden which would result from non-application of the residence requirement, it should be borne in mind that, although budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against migrant workers (see, to that effect, Case C-187/00 Kutz-Bauer [2003] ECR I-2741, paragraph 59, and Case C-196/02 Nikoloudi [2005] ECR I-1789, paragraph 53).
|
103. En ce qui concerne, d’abord, les conditions de travail, il n’y a pas de «lien de subordination», au sens de l’article 4, paragraphe 4, de la sixième directive, dès lors que les registradores-liquidadores se procurent et organisent eux-mêmes, dans les limites prévues par les dispositions réglementaires et conventionnelles pertinentes, les moyens en personnel et en matériel nécessaires à l’exercice de leurs activités.
|
24. Consequently, the question arises not only as to whether the national legislation has had the effect of granting pharmacies special or exclusive rights within the meaning of Article 106(1) TFEU, but also as to whether such legislation can have led to abuse of a dominant position (see, to that effect, judgment in Servizi Ausiliari Dottori Commercialisti , C‑451/03, EU:C:2006:208, paragraph 24).
|
24. Consequently, the question arises not only as to whether the national legislation has had the effect of granting CAF special or exclusive rights within the meaning of Article 86(1) EC, but also as to whether such legislation can have led to abuse of a dominant position.
|
71
However, nothing in the Act of Accession requires the existing Member States to treat Austrian nationals in the same way as they treated nationals of the other Member States prior to accession of Austria to the European Union (see, by analogy, judgment of 26 May 1993, Tsiotras, C‑171/91, EU:C:1993:215, paragraph 12, and of 15 June 1999, Andersson and Wåkerås-Andersson, C‑321/97, EU:C:1999:307, paragraph 46).
|
18
In that regard, first, it is settled case-law that the Commission must make complex economic assessments when assessing the value of aid within the meaning of Article 107 TFEU (see, to that effect, judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 68).
|
68. First of all, as was observed by the Advocate General in points 138 and 139 of his Opinion, in order to determine whether the sale of land by the public authorities to a private individual constitutes State aid, the Commission must apply the private investor test, to determine whether the price paid by the presumed recipient of the aid corresponds to the selling price which a private investor, operating in normal competitive conditions, would be likely to have fixed. As a rule, the application of that test requires the Commission to make a complex economic assessment (see, to that effect, Case C-56/93 Belgium v Commission [1996] ECR-I 723, paragraphs 10 and 11, and Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia v Commission [2003] ECR I‑4035, paragraphs 38 and 39).
|
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).
|
33
With regard to those considerations, it is apparent that, by providing that only persons receiving assets by way of an inheritance which has given rise to the imposition of such taxes in Germany can benefit from the reduction in inheritance tax, the configuration of that tax advantage reflects a logical symmetry (see judgments of 1 December 2011 in Commission v Belgium, C‑250/08, EU:C:2011:793, paragraph 73, and in Commission v Hungary, C‑235/09, EU:C:2011:795, paragraph 74). That logic would be disturbed if that tax advantage were also to benefit persons inheriting assets which did not give rise to the imposition of inheritance tax in that Member State.
|
74. By contrast, when the property sold is situated in a Member State other than Hungary, the Republic of Hungary has no power to tax the transaction entered into in that other Member State by the person deciding to purchase a property in Hungary for his principal residence. In those circumstances, by providing that only those who have already paid the tax at issue on the purchase of such property in Hungary may benefit from the tax advantage in question when purchasing property of the same nature, the configuration of the tax advantage in question reflects a logic of symmetry within the meaning of the case-law (see, to that effect, Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt , paragraph 42).
|
60. In the light of the characteristics of the subject-matter, the regulation does not constitute an isolated measure but forms part of a normative context circumscribed by the Framework Directive and the specific directives and directed at completing the internal market in the area of electronic communications.
|
66
Furthermore, it submits that the General Court carried out the appropriate legal test because, according to settled case-law, the concept of ‘evocation’ covers a situation in which the term used to designate a product incorporates part of a protected designation, so that when the consumer is confronted with the name of the product the image triggered in his mind is that of the product whose designation is protected (see, to that effect, judgment of 21 January 2016, Viiniverla, C‑75/15, EU:C:2016:35, paragraph 21 and the case-law cited).
|
21
According to the Court’s case-law, the concept of ‘evocation’ covers a situation in which the term used to designate a product incorporates part of a protected designation, so that when the consumer is confronted with the name of the product the image triggered in his mind is that of the product whose designation is protected (see, as regards Article 16(b) of Regulation No 110/2008, judgment in Bureau national interprofessionnel du Cognac, C‑4/10 and C‑27/10, EU:C:2011:484, paragraph 56; see also, concerning Article 13(1)(b) of Council Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1), judgments in Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, EU:C:1999:115, paragraph 25, and Commission v Germany, C‑132/05, EU:C:2008:117, paragraph 44).
|
68 Nevertheless, when such a risk has been eliminated, adjustment in respect of improperly invoiced VAT cannot be dependent upon the discretion of the tax authorities.
|
43. In the case of companies, it should be borne in mind that their registered office for the purposes of Article 48 EC serves, in the way same as nationality in the case of individuals, as the connecting factor with the legal system of a Member State. Acceptance of the proposition that the Member State in which a company seeks to establish itself may freely apply different treatment merely by reason of its registered office being situated in another Member State would deprive Article 43 EC of all meaning (see, to that effect, Case 270/83 Commission v France [1986] ECR 273, paragraph 18; Case C-330/91 Commerzbank [1993] ECR I‑4017, paragraph 13; Metallgesellschaft and Others , paragraph 42; and Marks & Spencer , paragraph 37). Freedom of establishment thus aims to guarantee the benefit of national treatment in the host Member State, by prohibiting any discrimination based on the place in which companies have their seat (see, to that effect, Commission v France , paragraph 14, and Saint‑Gobain ZN , paragraph 35).
|
35 As far as companies or firms are concerned, their corporate seat, in the sense expressed above, serves to determine, like nationality for natural persons, their connection to a Member State's legal order (see ICI, cited above, paragraph 20, and the case-law cited there).
|
59 Lastly, as regards monetary fluctuations, they are an element of chance which may produce advantages and disadvantages which the undertakings have to deal with regularly in the course of their business activities and whose very existence is not such as to render inappropriate the amount of a fine lawfully fixed by reference to the gravity of the infringement and the turnover achieved during the reference year. In any event, the maximum amount of the fine, determined by virtue of Article 15(2) of Regulation No 17 by reference to turnover in the business year preceding the adoption of the Decision, limits the possible harmful consequences of monetary fluctuations.
|
24. It must also be observed that the EC Treaty does not define the term ‘movement of capital’. However, it is settled case-law that, inasmuch as Article 73b of the Treaty substantially reproduced the content of Article 1 of Directive 88/361, and even if the latter was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (Articles 67 to 73 of the EEC Treaty were replaced by Articles 73b to 73g of the EC Treaty, now Articles 56 EC to 60 EC), the nomenclature relating to capital movements annexed thereto retains the same indicative value as before for the purposes of defining the term ‘movement of capital’ (see, inter alia, Case C-513/03 v an Hilten-van der Heijden [2006] ECR I-1957, paragraph 39, and Case C-452/04 Fidium Finanz [2006] ECR I-9521, paragraph 41).
|
41. As regards the notion of ‘capital movements’, there is no definition thereof in the Treaty. It is, however, settled case-law that, inasmuch as Article 56 EC essentially reproduces the contents of Article 1 of Directive 88/361, and even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty, (Articles 67 to 73 of the EEC Treaty have been replaced by Articles 73b to 73g of the EC Treaty, now Articles 56 EC to 60 EC), the nomenclature in respect of ‘movements of capital’ annexed to that directive still has the same indicative value, for the purposes of defining the notion of capital movements (see to that effect, inter alia, Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraph 21; Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C‑540/99 Reisch and Others [2002] ECR I-2157, paragraph 30; and Case C‑513/03 Van Hilten-van der Heijden [2006] ECR I-1957, paragraph 39).
|
43. It must be added that the Court of Justice, in paragraphs 274 to 276 of the judgment in Limburgse Vinyl Maatschappij and Others v Commission , observed that since the judgment in Orkem v Commission there have been further developments in the case‑law of the European Court of Human Rights which the Community judicature must take into account when interpreting the fundamental rights. The Court of Justice stated however in that regard that those developments were not such as to put in question the statements of principle in Orkem v Commission .
|
83. As to whether such legislation may nevertheless comply with Community law, it is settled case-law that obstacles to intra-Community trade resulting from disparities between provisions of national law must be accepted in so far as such provisions are applicable to domestic and imported products alike and may be justified as being necessary in order to satisfy overriding requirements relating inter alia to consumer protection. However, in order to be permissible, such provisions must be proportionate to the objective pursued and that objective must not be capable of being achieved by measures which are less restrictive of intra-Community trade (see, inter alia , Mars , paragraph 15; Case C-313/94 Graffione [1996] ECR I-6039, paragraph 17; Ruwet , paragraph 50; and Guimont , paragraph 27).
|
17 It is also settled law that obstacles to intra-Community trade resulting from disparities between provisions of national law must be accepted in so far as such provisions are applicable to domestic and imported products without distinction and may be justified as being necessary in order to satisfy overriding requirements relating inter alia to consumer protection or fair trading. However, in order to be permissible, such provisions must be proportionate to the objective pursued and that objective must not be capable of being achieved by measures which are less restrictive of intra-Community trade (see Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung fuer Branntwein ("Cassis de Dijon") [1979] ECR 649, paragraph 8; Case C-238/89 Pall v Dalhausen [1990] ECR I-4827, paragraph 12; Case 126/91 Schutzverband gegen Unwesen in der Wirtschaft v Yves Rocher [1993] ECR I-2361, paragraph 12; and Case C-470/93 Verein gegen Unwesen in Handel und Gewerbe Koeln v Mars [1995] ECR I-1923, paragraph 15).
|
38. Moreover, it should be noted that Directive 98/59 was adopted on the basis of Article 100 of the EC Treaty (now Article 94 EC), enabling the approximation of the laws of the Members States having a direct impact on the establishment or functioning of the common (internal) market.
|
33 However, as the Court has consistently held, it can refrain from giving a preliminary ruling on a question submitted by a national court only where it is quite obvious that the interpretation or assessment of validity of Community law sought by that court bears no relation to the actual facts of the main action or its purpose, or where the problem is hypothetical and 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 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 61).
|
61 That is why the Court has held that it has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or its purpose (see, inter alia, Case C-143/94 Furlanis v ANAS [1995] ECR I-0000, paragraph 12) or where the problem is hypothetical and 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, Meilicke, cited above, paragraph 32).
|
79. En ce qui concerne la durée de l’infraction, celle-ci doit être évaluée en ayant égard non pas à la date à laquelle la Cour est saisie par la Commission, mais à celle à laquelle la Cour apprécie les faits (voir arrêt Commission/Italie, C‑196/13, EU:C:2014:2407, point 102 et jurisprudence citée).
|
45 It follows that, as mentioned above, the owner of a trade mark protected by the legislation of a Member State cannot rely on that legislation in order to oppose the importation or marketing of a product which was put on the market in another Member State by him or with his consent (see, in particular, Winthrop, paragraphs 7 to 11; HAG II, paragraph 12; and IHT Internationale Heiztechnik, paragraphs 33 and 34).
|
11 IN FACT, IF A TRADE MARK OWNER COULD PREVENT THE IMPORT OF PROTECTED PRODUCTS MARKETED BY HIM OR WITH HIS CONSENT IN ANOTHER MEMBER STATE, HE WOULD BE ABLE TO PARTITION OFF NATIONAL MARKETS AND THEREBY RESTRICT TRADE BETWEEN MEMBER STATES, IN A SITUATION WHERE NO SUCH RESTRICTION WAS NECESSARY TO GUARANTEE THE ESSENCE OF THE EXCLUSIVE RIGHT FLOWING FROM THE TRADE MARK .
|
44. Il convient de rappeler que, selon une jurisprudence constante, le principe de sécurité juridique, qui a pour corollaire celui de la protection de la confiance légitime, exige qu’une législation entraînant des conséquences défavorables à l’égard des particuliers soit claire et précise et que son application soit prévisible pour les justiciables (voir, notamment, arrêt du 7 juin 2005, VEMW e.a., C‑17/03, Rec. p. I‑4983, point 80). Ainsi qu’il a été rappelé au point 33 du présent arrêt, un délai de prescription doit être fixé à l’avance pour remplir sa fonction d’assurer la sécurité juridique.
|
37. It should be recalled in that regard that, according to settled case-law, it is for the Court of Justice to provide the national court with all the elements of interpretation of Community law which may be of assistance in adjudicating on the case pending before it, whether or not that court has specifically referred to them in its questions (see, in particular, Case C‑315/92 Verband Sozialer Wettbewerb , ‘Clinique’ [1994] ECR I‑317, paragraph 7; Case C‑87/97 Consorzio per la tutela del formaggio Gorgonzola [1999] ECR I‑1301, paragraph 16; Case C‑456/02 Trojani [2004] ECR I‑7573, paragraph 38; and Case C‑452/03 RAL (Channel Islands) and Others [2005] ECR I‑3947, paragraph 25).
|
16 Even though, strictly speaking, the national court has directed its questions solely to the interpretation of Articles 30 and 36 of the Treaty, the Court is not thereby precluded from providing the national court with all those elements for the interpretation of Community law which may be of assistance in adjudicating on the case pending before it, whether or not that court has specifically referred to them in its questions (see, in particular, to that effect Case C-241/89 SARPP [1990] ECR I-4695, paragraph 8, and Case C-315/92 Verband Sozialer Wettbewerb (`Clinique') [1994] ECR I-317, paragraph 7).
|
90. The argument put forward by the German Government maintaining the contrary is, therefore, unfounded.
|
27
It is established case-law that procedural rules are generally held to apply from the date on which they enter into force (judgments of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 75 and the case-law cited; of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 88; and of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45), even in a procedure that was initiated before that date, but is still pending after that date (see, to that effect, judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 47).
|
75. It follows from the case-law that the provision which forms the legal basis of an act and empowers the Union institution to adopt the act in question must be in force at the time when the act is adopted (see, to that effect, Case C‑269/97 Commission v Council [2000] ECR I‑2257, paragraph 45) and that procedural rules are generally held to apply from the time of their entry into force (see, to that effect, Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, paragraph 9, and Case C‑201/04 Molenbergnatie [2006] ECR I‑2049, paragraph 31).
|
32. Il y a lieu de relever qu’il résulte des dispositions combinées des articles 58 du statut de la Cour de justice et 113, paragraphe 2, du règlement de procédure de cette dernière que, dans le cadre d’un pourvoi, il est loisible au requérant d’invoquer tout argument pertinent sous la seule réserve que le pourvoi ne modifie par l’objet du litige devant le Tribunal (arrêt du 18 janvier 2007, PKK et KNK/Conseil, C‑229/05 P, Rec. p. I‑439, point 66).
|
15. In that regard, it should be observed that, according to settled case-law of the Court of Justice, Article 267 TFEU establishes a procedure for direct cooperation between the Court and the courts of the Member States (see, inter alia, judgments in SAT Fluggesellschaft , C‑364/92, EU:C:1994:7, paragraph 9, and ATB and Others , C‑402/98, EU:C:2000:366, paragraph 29). In that procedure, which is based on a clear separation of functions between the national courts and the Court, any assessment of the facts of the case is a matter for the national court, which must determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, to that effect, inter alia, judgments in WWF and Others , C‑435/97, EU:C:1999:418, paragraph 31, and Lucchini , C‑119/05, EU:C:2007:434, paragraph 43), whilst the Court is empowered to give rulings on the interpretation or the validity of an EU provision only on the basis of the facts which the national court puts before it (judgment in Eckelkamp and Others , C‑11/07, EU:C:2008:489, paragraph 52).
|
43. In this regard, it must be recalled that, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C-326/00 IKA [2003] ECR I-1703, paragraph 27; Case C-145/03 Keller [2005] ECR I-2529, paragraph 33; and Case C-419/04 Conseil général de la Vienne [2006] ECR I-5645, paragraph 19).
|
28. However, it is important to note that, irrespective of the effects that the withholding tax may have on the tax situation of non-resident service providers, such an obligation to withhold tax, inasmuch as it entails an additional administrative burden as well as the related risks concerning liability, is liable to render cross-border services less attractive for resident recipients of services than services provided by resident service providers and to deter those recipients from having recourse to non-resident service providers.
|
72 In that regard, the justifications relied on by the Riksskatteverket under Article 58 EC are essentially the same as those it put forward to justify the restrictions on freedom of establishment caused by the national provision at issue which relate to the coherence of the tax system, the prevention of tax avoidance and the effectiveness of fiscal supervision (see, as regards the relation between overriding public interest requirements recognised by the Court and Article 73d(1)(a) of the EC Treaty (now Article 58(1)(a) EC) Verkooijen, cited above, paragraphs 43 to 46). For the same reasons as those cited in connection with freedom of establishment at paragraphs 46 to 63 above, those justifications cannot be upheld in relation to the restriction on free movement of capital that has been held to exist at paragraph 70.
|
44 In any event, Article 73d(3) of the Treaty states specifically that the national provisions referred to by Article 73d(1)(a) are not to constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments, as defined in Article 73b.
|
38
In this connection, it should be noted that the right of a taxable person established in a Member State to obtain the refund of VAT paid in another Member State, in the manner governed by the Eighth Directive, is the counterpart of such a person’s right established by the VAT Directive to deduct input VAT in his own Member State (judgment of 25 October 2012, Daimler and Widex, C‑318/11 and C‑319/11, EU:C:2012:666, paragraph 41 and the case-law cited).
|
39. In relation to the concept of " provision of medical care" , the Court has already held in paragraph 18 of its judgment in D. v W. , and restated in paragraph 38 of its judgment in Kügler , that that concept does not lend itself to an interpretation which includes medical interventions carried out for a purpose other than that of diagnosing, treating and, in so far as possible, curing diseases or health disorders.
|
38 The Court has already held, in Case C-384/98 D. [2000] ECR I-6795, at paragraph 18, that the concept of `provision of medical care' does not lend itself to an interpretation which includes medical interventions carried out for a purpose other than that of diagnosing, treating and, in so far as possible, curing diseases or health disorders.
|
70. Given that the undertaking which suffered the loss could not reasonably foresee such litigation at the time that it agreed to the jurisdiction clause and that that undertaking had no knowledge of the unlawful cartel at that time, such litigation cannot be regarded as stemming from a contractual relationship. Such a clause would not therefore have validly derogated from the referring court’s jurisdiction.
|
45. It should be borne in mind in that regard that, according to the settled case-law of the Court, procedural rules are generally held to apply on the date on which they enter into force (Case C-334/08 Commission v Italy [2010] ECR I-6869, paragraph 60; Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others [2011] ECR I-2239, paragraph 75 and the case-law cited; Case C-352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I-2359, paragraph 88; and Case C-17/10 Toshiba Corporation and Others [2012] ECR, paragraph 47).
|
88. It follows from the case-law that the provision which forms the legal basis of an act and empowers the Union institution to adopt the act in question must be in force at the time when the act is adopted (see, to that effect, Case C‑269/97 Commission v Council [2000] ECR I‑2257, paragraph 45) and that procedural rules are generally held to apply from the time of their entry into force (see, to that effect, Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, paragraph 9, and Case C‑201/04 Molenbergnatie [2006] ECR I‑2049, paragraph 31).
|
29 It is not in dispute that the specific subject-matter of a mark is to guarantee the origin of the product bearing that mark and that repackaging of that product by a third party without the authorisation of the proprietor is likely to create real risks for that guarantee of origin.
|
26. It is true that, according to the case-law of the Court, the common standards and procedures established by Directive 2008/115 would be undermined if, after establishing that a third-country national is staying illegally, the Member State were to preface the implementation of the return decision, or even the adoption of that decision, with a criminal prosecution which could lead to a term of imprisonment during the course of the return procedure, in so far as such a step would risk delaying the removal (see, to that effect, judgments in El Dridi , C‑61/11 PPU, EU:C:2011:268, paragraph 59; Achughbabian , C‑329/11, EU:C:2011:807, paragraphs 37 to 39 and 45; and Sagor , C‑430/11, EU:C:2012:777, paragraph 33).
|
59. Such a penalty, due inter alia to its conditions and methods of application, risks jeopardising the attainment of the objective pursued by that directive, namely, the establishment of an effective policy of removal and repatriation of illegally staying third-country nationals. In particular, as observed by the Advocate General in point 42 of his View, national legislation such as that at issue in the main proceedings is liable to frustrate the application of the measures referred to in Article 8(1) of Directive 2008/115 and delay the enforcement of the return decision.
|
49
It follows that a court of the host Member State is not entitled to scrutinise the validity of an E 101 certificate in the light of the background against which it was issued (see, to that effect, judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 32).
|
24. It should be noted at the outset that, according to consistent case-law, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (see, in particular, Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 29; Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 40; Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraph 36; and Case C‑379/05 Amurta [2007] ECR I‑9569, paragraph 16).
|
29. In that regard, it must be borne in mind that, according to settled case-law, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (see, in particular, Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 37 and the case-law cited).
|
50 Article 176 of the Treaty, which was the only provision relied on before the Court of First Instance by the respondents and on which the contested decision is founded, requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure.
|
76. With regard in particular to the express exclusion of any harmonisation of the laws and regulations of the Member States designed to protect and improve human health laid down in the first indent of Article 129(4) of the EC Treaty (now, after amendment, the first subparagraph of Article 152(4) EC), the Court has held that other articles of the Treaty may not be used as a legal basis in order to circumvent that exclusion (Case C-376/98 Germany v Parliament and Council , paragraph 79). The Court has, however, stated that, provided that the conditions for recourse to Article 95(1) EC as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that the protection of public health is a decisive factor in the choices to be made (Case C-376/98 Germany v Parliament and Council , paragraph 88, and British American Tobacco (Investments) and Imperial Tobacco , paragraph 190).
|
190. With particular regard to the express exclusion of any harmonisation of the laws and regulations of the Member States designed to protect and improve human health laid down in the first indent of Article 129(4) of the Treaty (now, after amendment, the first subparagraph of Article 152(4) EC), the Court has held that other articles of the Treaty may not be used as a legal basis in order to circumvent that exclusion (the tobacco advertising judgment, paragraph 79). The Court has, however, stated that, provided that the conditions for recourse to Articles 100a, 57(2) of the EC Treaty (now, after amendment, Article 47(2) EC) and 66 of the EC Treaty (now Article 55 EC) as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made (the tobacco advertising judgment, paragraph 88).
|
16 According to the Commission, however, the Xerox 3010 and Xerox 3010 Editor machines must be classified as photocopiers under sub-heading 9009 12 00.
|
16 According to the case-law of the Court, the principle of equal pay, like the general principle of non-discrimination of which it is a particular expression, presupposes that male and female workers whom it covers are in comparable situations (see Gillespie, cited above, paragraphs 16 to 18).
|
16 It is well settled that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Case C-279/93 Finanzamt Koeln-Altstadt v Schumacker [1995] ECR I-225, paragraph 30).
|
27 On the other hand, that provision does not preclude employers from adducing evidence to support, where appropriate, a finding by the national court of abuse or fraudulent conduct on the part of the worker concerned, in that, although he may claim to have become incapacitated for work, such incapacity having been certified in accordance with Article 18 of Regulation No 574/72, he was not sick at all.
|
94. The first subparagraph of Article 152(1) EC provides that a high level of human health protection is to be ensured in the definition and implementation of all Community policies and activities ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 62; Arnold André , paragraph 33; Swedish Match , paragraph 32; and Alliance for Natural Health and Others , paragraph 31).
|
31. It must be noted in that regard that the first subparagraph of Article 152(1) EC provides that a high level of human health protection is to be ensured in the definition and implementation of all Community policies and activities, and that Article 95(3) EC explicitly requires that, in achieving harmonisation, a high level of protection of human health should be guaranteed ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 62, Arnold André , paragraph 33, and Swedish Match , paragraph 32).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
17 That complaint was rejected by decision of 5 January 1999.
4 In its decision rejecting the complaint, the Commission made the following points in particular:
... possible conflicts of interest between an official and his institution over a publication are not confined to cases in which the official publicly dissents from a policy of the institution, since the latter may have an interest in preserving some room for manoeuvre before it adopts a definitive view. Obviously, the fact that the complainant expressed a clear view in writing on the question [as to whether economic and monetary union called for territorial differentiation as regards fiscal and wage policies ("fine-tuning")] may have the effect, precisely, of restricting that room for manoeuvre. Even if he were to make clear that his view is purely a personal one, the reader might nevertheless, in spite of that caveat, associate the view of an official working in that sector with that of his institution, precisely because the latter does not have a view.
...
Under no circumstances is a one-page summary comparable to an article of over 20 pages. Permission given on the basis of the former can certainly not entail permission for the latter. That principle is all the more relevant in the present case, where there are significant discrepancies between the summary of the lecture and the text of the article.
5 On 12 April 1999, Mr Cwik brought proceedings before the Court of First Instance for annulment of the decision rejecting his complaint.
The judgment under appeal
6 In support of his appeal, Mr Cwik claimed inter alia that the second paragraph of Article 17 of the Staff Regulations had been wrongly interpreted and wrongly applied.
7 The Court of First Instance accepted that plea for the following reasons:
56 The Court finds that in the contested decision the appointing authority confined itself to stating that the interests of the Communities could be prejudiced where the Commission and its staff publicly express different points of view. The decision does not explain why, in the present case, such a risk exists.
57 In a democratic society founded on respect for fundamental rights, the fact that an official publicly expresses a point of view different from that of the institution for which he works cannot, in itself, be regarded as liable to prejudice the interests of the Communities.
58 Clearly, the purpose of freedom of expression is precisely to enable expression to be given to opinions which differ from those held at an official level. To accept that freedom of expression could be restricted merely because the opinion at issue differs from the position adopted by the institutions would be to negate the purpose of that fundamental right.
59 Likewise, the second paragraph of Article 17 of the Staff Regulations would be rendered nugatory, since, as is apparent from its wording, it clearly lays down the principle on which permission for publication is granted, specifically providing that such permission is to be refused only where the proposed publication is liable to prejudice the interests of the Communities.
60 Consequently, the fact that there is a difference of opinion between the applicant and the Commission does not justify restricting the right to freedom of expression, inasmuch as it has not been established that making that difference public would be liable, in the circumstances of the present case, to prejudice the interests of the Communities.
8 The Court of First Instance also held:
66 ... it is clear from the documents before the Court that, at the material time, the Commission had already publicly and clearly expressed its view on "fine-tuning" in, inter alia, official documents and that, unless there were exceptional circumstances, it entertained doubts as to the usefulness of measures of that kind and about the use, even at Member State level, of discretionary budgetary policies. Furthermore, the text at issue was written by an official who did not have any management responsibilities and who was expressing a personal view. Moreover, the text concerns an area on which the Commission states that it does not have an official policy. In any event, since the text is to be published in a collection of speeches made at the congress in question, it is intended for a readership consisting of specialists who are likely to be well informed about the Commission's views.
67 In those circumstances, the Court finds manifestly unfounded the defendant's argument that publication of the text at issue might entail a significant risk of the public mistaking the applicant's opinion for that of the institution, which could restrict the Commission's room for manoeuvre in the relevant area and thereby prejudice the interests of the Communities.
68 Furthermore, although the difference between a lecture and publication of the text thereof may be of some significance, that difference is not such, in the circumstances of the present case, to justify the concern that the Commission's room for manoeuvre might be restricted. In that regard, ... the text at issue sets out the same arguments as those put forward by the applicant in his lecture, which was even entitled "The need for local and regional economic fine-tuning in the monetary union of the European Union". Additionally, the fact that permission for the lecture was given by the appointing authority is a further indication that there was no risk of the applicant's opinion being mistaken for that of the Commission. In those circumstances, the defendant can have no grounds for contending that it had a reasonable concern that its room for manoeuvre would be restricted by publication of the text at issue.
69 It follows that, in refusing to permit publication of the text at issue on the ground that it was liable to prejudice the interests of the Communities, the defendant made a manifest error of assessment.
9 Consequently, the Court of First Instance annulled the decision at issue.
The appeal
10 The Commission claims that the Court should:
- declare the appeal to be admissible and well founded;
- set aside the judgment under appeal;
- dismiss, in consequence, the applicant's action or, in the alternative, refer the case back to the Court of First Instance;
- order the applicant to bear the costs.
11 Mr Cwik contends that the Court should:
- dismiss the appeal as inadmissible or, at the very least, unfounded;
- order the Commission to pay all the costs of the appeal.
12 In its appeal, the Commission relies on two pleas in law concerning (i) an error of interpretation as regards the second paragraph of Article 17 of the Staff Regulations and (ii) the failure of the judgment under appeal properly to state the grounds on which it is based.
The first ground of appeal
13 By its first ground of appeal, the Commission complains that the Court of First Instance, specifically in paragraphs 52, 56, 57 and 66 of the judgment under appeal, exceeded the bounds of its power to review the acts of the appointing authority and put an unduly restrictive construction on the second paragraph of Article 17 of the Staff Regulations.
14 The Court of First Instance failed, first, to have regard to the preventive function of that provision (recognised in Joined Cases T-34/96 et T-163/96 Connolly v Commission [1999] ECR-SC IA-87 and II-463, paragraph 153) when it ruled that the Commission had to provide factual evidence of prejudice to its interests and held that it had failed to establish, in the circumstances of the case, that the public expression of dissent between itself and the official concerned was liable to prejudice the interests of the Communities.
15 Second, the Court of First Instance did not take account of the appointing authority's discretion in respect of the technical aspects of the text of Mr Cwik's lecture and the risk of prejudice to the interests of the Communities. The Commission describes in that connection how the appointing authority consulted several specialists prior to adopting the contested decision, the economic and political climate in which economic and monetary union was being put in place and its need to reserve its official position in a very sensitive area. It claims that those factors prove that the appointing authority did not make a manifest error of assessment.
16 In its review of the way in which the second paragraph of Article 17 of the Staff Regulations had been applied, the Court of First Instance took three factors into consideration, namely the fact that Mr Cwik had no management responsibilities, the fact that the text concerned was intended for a specialist readership and the fact that at that time the institution had not, in any event, expressed a definitive opinion on the matter concerned. In doing so, the Court's appreciation of the appointing authority's discretion was clearly misconceived, since it attached to the second paragraph of Article 17 of the Staff Regulations conditions that are not found therein.
17 It should also be observed in that regard that the Court held in Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 53, that the second paragraph of Article 17 of the Staff Regulations clearly provides that, in principle, permission is to be granted and may be refused only in exceptional cases.
|
53 The second paragraph of Article 17 of the Staff Regulations clearly provides that, in principle, permission is to be granted, refusal being possible only in exceptional cases. Indeed, in so far as that provision enables institutions to refuse permission to publish, and thus potentially interfere to a serious extent with freedom of expression, one of the fundamental pillars of a democratic society, it must be interpreted restrictively and applied in strict compliance with the requirements mentioned in paragraph 41 above. Thus, permission to publish may be refused only where publication is liable to cause serious harm to the Communities' interests.
|
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.
|
50 In that regard, it should be pointed out that the principle of equality of treatment laid down in Article 5(3) of the Staff Regulations is a general rule forming part of the law applicable to the Community civil service. Discrimination contrary to that rule occurs where identical or comparable situations are treated in an unequal way and the discrimination is not objectively justified (see, in that regard, Joined Cases 198/81 to 202/81 Micheli and Others v Commission [1982] ECR 4145, paragraphs 5 and 6; for the conditions of recruitment, see Joined Cases 66/83 to 68/83 and 136/83 to 140/83 Hattet and Others v Commission [1985] ECR 2459, paragraph 24, and Case 119/83 Appelbaum v Commission [1985] ECR 2423, paragraph 25).
|
24 AS REGARDS MORE PARTICULARLY THE RECRUITMENT BY THE COMMISSION OF THE EAC ' S SPECIAL CONTRACT STAFF , THE COURT HELD IN ITS JUDGMENT IN CASE 119/83 , CITED ABOVE , THAT , SINCE NO ESSENTIAL DIFFERENCE EXISTED BETWEEN THE FACTUAL AND LEGAL SITUATION OF THE EAC ' S HEADQUARTERS STAFF AND THAT OF ITS SPECIAL CONTRACT STAFF , THE DIFFERENCE BETWEEN THE TREATMENT ACCORDED TO THE LATTER AT THE TIME OF THEIR RECRUITMENT BY THE COMMISSION AND THAT ACCORDED TO THE HEADQUARTERS STAFF WAS NOT JUSTIFIED AND CONSTITUTED A BREACH OF THE PRINCIPLE OF EQUAL TREATMENT LAID DOWN IN ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS .
|
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.
|
53 The Court has also held that the rules set out in Article 33 of Regulation No 1408/71 concerning sickness or maternity benefits constitute the application of a more general principle according to which a pensioner cannot be required, because he resides in the territory of a Member State, to pay compulsory insurance contributions to cover benefits payable by an institution of another Member State (Noij, paragraph 14).
|
14 It follows from the foregoing that the rules laid down by the aforesaid Article 33 concerning sickness or maternity benefits constitute the application of a more general principle according to which a pensioner cannot be required, because he resides in the territory of a Member State, to pay compulsory insurance contributions to cover benefits payable by an institution of another Member State.
|
56. Selon la jurisprudence de la Cour, cette compétence investit le juge communautaire de la mission de donner aux litiges dont il est saisi une solution complète (voir arrêt du 18 décembre 2007, Weißenfels/Parlement, C‑135/06 P, Rec. p. I‑12041, point 67). Elle lui permet, même en l’absence de conclusions régulières à cet effet, non seulement d’annuler, mais encore, s’il y a lieu, de condamner d’office la partie défenderesse au paiement d’une indemnité pour le dommage moral causé par sa faute de service (voir, en ce sens, arrêts du 16 décembre 1960, Fiddelaar/Commission, 44/59, Rec. p. 1077, 1093; du 9 juillet 1970, Fiehn/Commission, 23/69, Rec. p. 547, point 17, ainsi que du 27 octobre 1987, Houyoux et Guery/Commission, 176/86 et 177/86, Rec. p. 4333, point 16).
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.