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34 In this regard, it is appropriate to recall the case-law of the Court of Justice (see, in particular, Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 34, and Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraph 62) according to which, although as a general rule the Community judicature undertakes a comprehensive review of the question whether or not the conditions for the application of Article 85(1) are met, its review of complex economic appraisals made by the Commission is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
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34 ALTHOUGH AS A GENERAL RULE THE COURT UNDERTAKES A COMPREHENSIVE REVIEW OF THE QUESTION WHETHER OR NOT THE CONDITIONS FOR THE APPLICATION OF ARTICLE 85 ( 1 ) ARE MET , IT IS CLEAR THAT IN DETERMINING THE PERMISSIBLE DURATION OF A NON-COMPETITION CLAUSE INCORPORATED IN AN AGREEMENT FOR THE TRANSFER OF AN UNDERTAKING THE COMMISSION HAS TO APPRAISE COMPLEX ECONOMIC MATTERS . THE COURT MUST THEREFORE LIMIT ITS REVIEW OF SUCH AN APPRAISAL TO VERIFYING WHETHER THE RELEVANT PROCEDURAL RULES HAVE BEEN COMPLIED WITH , WHETHER THE STATEMENT OF THE REASONS FOR THE DECISION IS ADEQUATE , WHETHER THE FACTS HAVE BEEN ACCURATELY STATED AND WHETHER THERE HAS BEEN ANY MANIFEST ERROR OF APPRAISAL OR A MISUSE OF POWERS .
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115 As for the alleged breach of the principle of the protection of legitimate expectations, it will be recalled that, according to settled case-law, traders cannot properly claim to have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions within the limits of their discretionary power will be maintained (see Case C-284/94 Spain v Council [1998] ECR I-7309, paragraph 43).
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52. First of all, as regards the first part of that question, the Court has already held, in C-228/00 Commission v Germany [2003] ECR I-1439, paragraph 47, that the criterion of the calorific value of waste is not relevant for the purpose of establishing whether an operation involving the combustion of waste is a recovery operation as referred to in point R1 of Annex IIB to the Directive.
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47. Since the use of waste as a fuel meets the conditions referred to in paragraphs 41 to 43 above, it constitutes a recovery operation as referred to in point R1 of Annex II B to the Directive, without the need to take into consideration criteria such as the calorific value of the waste, the amount of harmful substances contained in the incinerated waste or whether or not the waste has been mixed.
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28. The action brought by flyLAL seeks legal redress for damage relating to an alleged infringement of competition law. Thus, it comes within the law relating to tort, delict or quasi-delict (see, by analogy, judgment in Sunico and Others , EU:C:2013:545, paragraph 37).
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48. Il s’ensuit que, contrairement à ce que prétend la Commission, une interprétation purement littérale du régime particulier des agences de voyages fondée sur le texte d’une ou de plusieurs versions linguistiques, à l’exclusion des autres, ne saurait prévaloir. Conformément à une jurisprudence constante, il y a lieu de considérer que les dispositions du droit de l’Union doivent être interprétées et appliquées de manière uniforme à la lumière des versions établies dans toutes les langues de l’Union. En cas de disparité entre les diverses versions linguistiques d’un texte de l’Union, la disposition en cause doit être interprétée en fonction de l’économie générale et de la finalité de la réglementation dont elle constitue un élément (arrêt du 8 décembre 2005, Jyske Finans, C‑280/04, Rec. p. I‑10683, point 31).
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31. It must be noted in that regard that it is settled case-law that Community provisions must be interpreted and applied uniformly in the light of the versions existing in all the Community languages (see, to that effect, inter alia, Case 19/67 Van der Vecht [1967] ECR 345, 354; Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 15; and Case C-371/02 Björnekulla Fruktindustrier [2004] ECR I-5791, paragraph 16). Where there is divergence between the various language versions of a Community text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case C-437/97 EKW and Wein & Co [2000] ECR I-1157, paragraph 42, and Case C-1/02 Borgmann [2004] ECR I‑3219, paragraph 25).
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14THE GUARANTEE OF ORIGIN WOULD IN FACT BE JEOPARDIZED IF IT WERE PERMISSIBLE FOR A THIRD PARTY TO AFFIX THE MARK TO THE PRODUCT , EVEN TO AN ORIGINAL PRODUCT .
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56. Given the reference to ‘acts’ in general, the subject matter of those limbs of Article 263 is any European Union act which produces binding legal effects (see, to that effect, Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑5829, paragraph 29; Case C-322/09 P NDSHT v Commission [2010] ECR I‑11911, paragraph 45; and Joined Cases C‑463/10 P and C‑475/10 P Deutsche Post v Commission [2011] ECR I‑9639, paragraphs 36 to 38). That concept therefore covers acts of general application, legislative or otherwise, and individual acts. The second limb of the fourth paragraph of Article 263 TFEU specifies that if the natural or legal person who brings the action for annulment is not a person to whom the contested act is addressed, the admissibility of the action is subject to the condition that the act is of direct and individual concern to that person.
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36. According to consistent case-law, developed in the context of actions for annulment brought by Member States or institutions, any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as acts open to challenge, within the meaning of Article 263 TFEU (see, in particular, Case 22/70 Commission v Council (‘ ERTA’ ) [1971] ECR 263, paragraph 42; Case C‑316/91 Parliament v Council [1994] ECR I-625, paragraph 8; Spain v Commission , cited above, paragraph 27; Joined Cases C‑138/03, C‑324/03 and C‑431/03 Italy v Commission [2005] ECR I‑10043, paragraph 32; Case C‑301/03 Italy v Commission [2005] ECR I‑10217, paragraph 19; Case C‑370/07 Commission v Council [2009] ECR I‑8917, paragraph 42). The case-law further shows that a Member State, such as the applicant in Case C‑475/10 P, may admissibly bring an action for annulment of a measure producing binding legal effects without having to demonstrate that it has an interest in bringing proceedings (see, to that effect, Case 45/86 Commission v Council [1987] ECR. 1493, paragraph 3 and Commission v Council [2009] ECR I-8917, paragraph 16).
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50. That provision thus applies, first, on condition that the applicable legislation is covered by Title II of Regulation No 1408/71 and, second, on condition that the relevant situation remained unchanged.
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27. In order to answer this question, it must first be recalled that the system of protection established by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the trader as regards both his bargaining power and his level of knowledge, which leads to the consumer agreeing to terms drawn up in advance by the trader without being able to influence the content of those terms (Case C‑168/05 Mostaza Claro [2006] ECR I‑10421, paragraph 25; Case C‑243/08 Pannon GSM [2009] ECR I‑4713, paragraph 22; and Case C‑40/08 Asturcom Telecomunicaciones [2009] ECR I‑9579, paragraph 29).
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29. For the purpose of replying to the question referred, it is appropriate to note, first, that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (Joined Cases C‑240/98 to C‑244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I‑4941, paragraph 25, and Case C‑168/05 Mostaza Claro [2006] ECR I‑10421, paragraph 25).
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7 THE EXTENSION TO IMPORTED PRODUCTS OF A REQUIREMENT THAT THEY CONTAIN A SPECIFIC AMOUNT OF DRY MATTER MAY PREVENT BREAD ORIGINATING IN OTHER MEMBER STATES FROM BEING MARKETED IN THE STATE CONCERNED . IT MAY MAKE IT NECESSARY TO VARY THE METHOD OF MANUFACTURE ACCORDING TO THE PLACE WHERE THE BREAD IS TO BE SOLD AND THUS IMPEDE THE MOVEMENT OF BREAD LAWFULLY PRODUCED IN THE MEMBER STATE OF ORIGIN IF IDENTICAL MANUFACTURING STANDARDS ARE NOT PRESCRIBED IN THAT STATE .
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77. With regard to the place where the damage occurred, it is clear from the case-law of the Court, that that is the place where the damage alleged by the company actually manifests itself (see, to that effect, judgment in CDC Hydrogen Peroxide , C‑352/13, EU:C:2015:335, paragraphs 52).
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52. According to the settled case-law of the Court, the place where the damage occurred is the place where the alleged damage actually manifests itself (see judgment in Zuid-Chemie , C‑189/08, EU:C:2009:475, paragraph 27). As for loss consisting in additional costs incurred because of artificially high prices, such as the price of the hydrogen peroxide supplied by the cartel at issue in the main proceedings, that place is identifiable only for each alleged victim taken individually and is located, in general, at that victim’s registered office.
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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.
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24
Such an interpretation cannot be called into question by the argument of the defendants in the main proceedings that a broad interpretation of the right to a free choice of lawyer or representative would transform all legal expenses insurance into insurance based on the principle of ‘covering costs’, within the meaning of Article 3(2)(c) of Directive 87/344. The Court has previously held that the measures provided for in Article 3(2)(a) and (b) of Directive 87/344 retain their scope even in the case in which an independent right for the person with legal expenses insurance freely to choose his representative is inferred from Article 4(1)(a) of that directive (see, to that effect, judgment in Eschig, C‑199/08, EU:C:2009:538, paragraph 49).
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49. In that regard, it should be noted that the measures provided for in Article 3(2)(a) and (b) of Directive 87/344 retain their scope of application even where an independent right on the part of the person with legal expenses insurance to freely choose his representative is inferred from Article 4(1)(a) of that directive.
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18 To apply the provisions of Articles 77 and 78 of the regulation specifying the Member State of residence as having sole competence to grant the family benefits in question may result, however, in the persons concerned being deprived of their entitlement to benefit under the laws of another Member State alone. It was for that reason that, in its judgments in Laterza and Gravina, the Court interpreted those provisions as meaning that the principle of a single State responsible for payment is subject, as regards family benefits, to an exception requiring the other Member State to grant a supplement.
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64. Having regard to that lack of distinction, intended by the European Union legislature, based on the time at which the family is constituted, and taking account of the necessity of not interpreting the provisions of the Directive restrictively and not depriving them of their effectiveness, the Member States did not have discretion to reintroduce that distinction in their national legislation transposing the Directive (see, by way of analogy, Case C‑127/08 Metock and Others [2008] ECR I‑6241, paragraph 93). Furthermore, the capacity of a sponsor to have regular resources which are sufficient to maintain himself and the members of his family within the meaning of Article 7(1)(c) of the Directive cannot in any way depend on the point in time at which he constitutes his family.
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93. Therefore, in the light of the necessity of not interpreting the provisions of Directive 2004/38 restrictively and not depriving them of their effectiveness, the words ‘family members [of Union citizens] who accompany … them’ in Article 3(1) of that directive must be interpreted as referring both to the family members of a Union citizen who entered the host Member State with him and to those who reside with him in that Member State, without it being necessary, in the latter case, to distinguish according to whether the nationals of non-member countries entered that Member State before or after the Union citizen or before or after becoming his family members.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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33. It must therefore be held that the facilities required for that purpose are, by means of the offered services of repair and upgrading, made available to RFCT in a condition which permits their use for the agreed purposes and that the provision of access to those facilities for that specific end constitutes the supply which is characteristic of the transaction at issue in the main proceedings (see inter alia, by analogy, the judgments in Part Service , C‑425/06, EU:C:2008:108, paragraphs 51 and 52; Field Fisher Waterhouse , C‑392/11, EU:C:2012:597, paragraph 23; and RR Donnelley Global Turnkey Solutions Poland , C‑155/12, EU:C:2013:434, paragraph 22).
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23. For the purposes of that examination, the content of a lease may be a factor of importance in assessing whether there is a single supply. In the main proceedings, it appears that the economic reason for concluding the lease is not only to obtain the right to occupy the premises concerned, but also for the tenant to obtain a number of services. The lease accordingly designates a single supply agreed between the landlord and the tenant. Moreover, it should be observed that the leasing of immovable property and the supply of associated services, such as those mentioned in paragraph 8 above, may objectively constitute such a supply. Obtaining the services concerned cannot be regarded as constituting an end in itself for an average tenant of premises such as those at issue in the main proceedings, but constitutes rather a means of better enjoying the principal supply, namely the leasing of commercial premises.
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22 It is common ground that the BAT does not allow periods of employment completed in the public service of another Member State to be taken into account.
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76 Consequently, the third part of the plea must be rejected.
The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings
10 In particular, the Court of First Instance held as follows:
82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations.
83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions.
84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected.
85 Therefore, the fourth part of the plea cannot be accepted.
11 The Court of First Instance therefore rejected the first plea in law.
The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration
12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings.
13 The Court of First Instance held, in particular, as follows:
92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of.
93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22).
94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons.
95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant.
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97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book).
98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing).
99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard.
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101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing.
102 It follows that the plea must be rejected.
The third plea in law: infringement of Article 11 of the Staff Regulations
14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission.
15 The Court of First Instance held as follows:
108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case.
109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR").
110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book.
111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs.
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113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations.
114 Accordingly, the plea must be rejected.
The fourth plea in law: infringement of Article 12 of the Staff Regulations
16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis.
17 So far as this plea in law is concerned, the Court of First Instance held as follows:
124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66).
125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position.
126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book.
127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations.
128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty.
129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41).
130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47).
131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials.
132 It follows that the plea must be rejected.
The fifth plea in law: infringement of Article 17 of the Staff Regulations
18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II.
19 The Court of First Instance rejected this plea for the following reasons:
147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression.
148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73).
149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials.
150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions.
151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect.
152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned.
153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties.
154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation.
155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression.
156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected.
157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication.
158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations.
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160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations.
161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument.
162 Consequently, the plea must be rejected.
The sixth plea in law: manifest error of assessment and breach of the principle of proportionality
20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances.
21 The Court of First Instance held as follows:
165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34).
166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established.
167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed.
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21 It is sufficient to note in that regard that, according to paragraph 20 of the Cassamali judgment, cited above, Article 51(1) applies even where the benefit to be reduced due to index-linked increases in another benefit has been calculated in accordance with national provisions and not according to Article 46.
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31. It should also be recalled that, as is clear from recital 24 in the preamble to the VAT Directive, the concepts of ‘chargeable event’ and ‘chargeability of VAT’ should be harmonised if the introduction of the common system of VAT and of any subsequent amendments thereto are to take effect at the same time in all Member States. The European Union legislature intended maximum harmonisation of the date on which liability to pay VAT arises in all the Member States in order to ensure the uniform collection of that tax.
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45. The principle of the right to be heard, whose observance is ensured by the Court of Justice, requires the public authority to hear interested parties before adopting a decision which concerns them (Case C-315/99 P Ismeri Europea v Court of Auditors [2001] ECR I-5281, paragraph 28).
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28 None the less, the principle of the right to a hearing is a general principle of law whose observance is ensured by the Court of Justice. It applies to any procedure which may result in a decision by a Community institution perceptibly affecting a person's interests (see, in particular, judgment in Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, paragraph 15).
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56 Regulation 11(4) provides that an employer who fails to consult employee representatives at the time of the transfer of an undertaking may be ordered to pay appropriate compensation to employees affected by the transfer. Under Regulation 11(11), the amount of compensation may not exceed a maximum amount which was increased from two weeks' pay for the employee in question to four weeks' pay by the Trade Union Reform and Employment Rights Act 1993. However, according to Regulation 11(7), where an employer also dismisses employees on grounds of redundancy and fails to consult employee representatives, contrary to section 99 of the EPA, any compensation may be set off against a "protective award" which the employer may later be ordered to make to the employee under the EPA and, conversely, a "protective award" may be set off against any compensation which the employer may subsequently be ordered to pay to the employee.
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130. Those considerations are in accordance with the case-law of the Court of Justice, according to which the Commission may, in the case of an aid scheme, confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies (see, in particular, Italy and Sardegna Lines v Commission , paragraph 51, Case C‑278/00 Greece v Commission [2004] ECR I‑3997, paragraph 24, and Case C‑148/04 Unicredito Italiano [2005] ECR I‑11137, paragraph 67), in order to determine whether that scheme comprises aid elements.
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67. In the case of an aid scheme, the Commission may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies (see, in particular, Joined Cases C‑15/98 and C-105/99 Italy and Sardegna Lines v Commission [2000] ECR I‑8855, paragraph 51, and Case C‑278/00 Greece v Commission [2004] ECR I‑3997, paragraph 24), in order to determine whether that scheme comprises aid elements.
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47. The standardised and immediate assistance and care measures do not themselves prevent the passengers concerned, should the same delay also cause them damage conferring entitlement to compensation, from being able to bring in addition actions to redress that damage under the conditions laid down by the Montreal Convention.
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37. As regards a right to compensation for such pecuniary damage, it follows from the Court’s settled case‑law that, under the principle of sincere cooperation laid down in Article 4(3) TEU, Member States are required to nullify the unlawful consequences of a breach of European Union law. In that regard, the Court has already held that, in order to remedy the failure to carry out an environmental impact assessment of a project within the meaning of Article 2(1) of Directive 85/337, it is for the national court to determine whether it is possible under national law for a consent already granted to be revoked or suspended in order to subject the project in question to an assessment of its environmental impacts, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered (see Wells , paragraphs 66 to 69).
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66. The Member State is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment.
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12 THE APPLICANTS' ARGUMENT TO THE EFFECT THAT THIS APPLICATION SHOULD BE DECLARED ADMISSIBLE SO AS TO ENABLE THEM TO ENJOY FULL LEGAL PROTECTION MUST BE REJECTED . IT MUST BE POINTED OUT THAT, IN SUPPORT OF AN ACTION CHALLENGING A NATIONAL MEASURE IMPLEMENTING A COMMUNITY DECISION, THE APPLICANT MAY PLEAD THE ILLEGALITY OF THAT DECISION AND THEREBY REQUIRE THE NATIONAL COURT TO ADJUDICATE ON ALL THE ALLEGATIONS FORMULATED IN THAT RESPECT, IF NECESSARY AFTER MAKING A REFERENCE TO THE COURT OF JUSTICE FOR A RULING ON THE VALIDITY OF THE DECISION IN QUESTION . THE FACT THAT THE NATIONAL COURT IS EMPOWERED TO DETERMINE WHICH QUESTIONS IT INTENDS TO SUBMIT TO THE COURT IS AN INHERENT FEATURE OF THE SYSTEM OF MEANS OF REDRESS ESTABLISHED BY THE TREATY AND IS NOT THEREFORE AN ARGUMENT WHICH IS CAPABLE OF JUSTIFYING A BROAD INTERPRETATION OF THE CONDITIONS OF ADMISSIBILITY LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY .
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23. Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36) concerns only lawyers who are fully qualified as such in their Member States of origin (see Morgenbesser , paragraph 45). In addition, it is apparent from the documents before the Court that the activities undertaken by legal trainees are regarded as forming the practical part of the training required to enter the legal professions in Germany. It follows that such a legal traineeship cannot be classed as a ‘regulated profession’, within the meaning of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16), as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 (OJ 2001 L 206, p. 1), separable from the German legal professions themselves, such as the profession of lawyer (see, by analogy, Morgenbesser , paragraphs 46 to 55).
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47. Ms Morgenbesser argues that she is not claiming access to the profession of " avvocato" as such, but, at this stage, to that of praticante. She maintains that the activities of a praticante fall within the definition of a " regulated profession" within the meaning of Directive 89/48. Since, she argues, the only precondition for access to that profession is a legal diploma, she can rely on her maîtrise en droit in order to obtain that access. She points out that a significant number of praticanti and praticanti-patrocinanti who have not passed the final examination continue to carry on their legal activities without being removed from the register of praticanti.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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57. According to settled case-law, the existence of a direct and immediate link between a particular input transaction and a particular output transaction or transactions giving rise to entitlement to deduct is, in principle, necessary before the taxable person is entitled to deduct input VAT and in order to determine the extent of such entitlement (see Case C‑98/98 Midland Bank [2000] ECR I‑4177, paragraph 24; Abbey National , paragraph 26; and Investrand , paragraph 23). The right to deduct VAT charged on the acquisition of input goods or services presupposes that the expenditure incurred in acquiring them was a component of the cost of the output transactions that gave rise to the right to deduct (see Cibo Participations , paragraph 31; Kretztechnik , paragraph 35; Investrand , paragraph 23; and Securenta , paragraph 27).
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35. It is clear from the last-mentioned condition that, for VAT to be deductible, the input transactions must have a direct and immediate link with the output transactions giving rise to a right of deduction. Thus, the right to deduct VAT charged on the acquisition of input goods or services presupposes that the expenditure incurred in acquiring them was a component of the cost of the output transactions that gave rise to the right to deduct (see Midland Bank , paragraph 30, and Abbey National , paragraph 28, and also Case C-16/00 Cibo Participations [2001] ECR I-6663, paragraph 31).
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38. It should be noted in that regard that the competent authorities of the Member States can determine the amount of export refunds only in the two clearly distinct situations set out in Article 5(3) of Regulation No 615/98. In the first situation, where the death of animals is attributable to failure to comply with Directive 91/628, the Community legislature does not confer any discretion upon the competent authorities, since it expressly provides that the refund is not to be paid. On the other hand, in the second situation, where those authorities consider that Directive 91/628 has not been complied with, but that failure has not resulted in the death of animals, the Community legislature confers a certain degree of discretion upon the competent authorities to determine whether it is appropriate, as a result of non-compliance with a provision of that directive, for the export refund to be forfeited, reduced or retained.
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64. As regards the fourth part of the plea, the Court of First Instance correctly interpreted the judgment in Spain v Commission , paragraphs 12 to 20, when it stated that the effect of that judgment is that a decision to initiate the procedure for examining State aid produces legal effects as referred to in Article 230 EC. Specific legal consequences flow from the assessment and classification of the aid mentioned and from the choice of procedure which follows from that. By contrast, the mere fact that, by the contested decisions, the Commission made a choice as to the procedure to be undertaken against the appellants and thus excluded other procedures cannot, in itself, be a legal effect for the purposes of that article.
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16 As for new aid, Article 93(3) provides that the Commission is to be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. The Commission then conducts an initial review of the aid proposed. If at the end of that review it considers a proposal to be incompatible with the common market having regard to Article 92, it must without delay initiate the contentious procedure provided for in Article 93(2). In such a case, the final sentence of Article 93(3) prohibits the Member State concerned from implementing the proposed measures until that procedure has resulted in a final decision. New aid is accordingly subject to the Commission' s preventive control and in principle may not be granted until that institution has declared it to be compatible with the Treaty.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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32. The free movement of capital may, however, be restricted by national measures justified on the grounds set out in Article 58 EC or by overriding reasons in the general interest (see, to that effect, Case C-319/02 Manninen [2004] ECR I-7477, paragraph 29), to the extent that there are no Community harmonising measures providing for measures necessary to ensure the protection of those interests (see, to that effect, in the context of the freedom to provide services, Case C‑255/04 Commission v France [2006] ECR I-0000, paragraph 43, and case-law cited).
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29. A distinction must therefore be made between unequal treatment which is permitted under Article 58(1)(a) EC and arbitrary discrimination which is prohibited by Article 58(3). In that respect, the case-law shows that, for national tax legislation like that at issue, which, in relation to a fully taxable person in the Member State concerned makes a distinction between revenue from national dividends and that from foreign dividends, to be capable of being regarded as compatible with the Treaty provisions on the free movement of capital, the difference in treatment must concern situations which are not objectively comparable or be justified by overriding reasons in the general interest, such as the need to safeguard the coherence of the tax system ( Verkooijen , paragraph 43). In order to be justified, moreover, the difference in treatment between different categories of dividends must not go beyond what is necessary in order to attain the objective of the legislation.
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47 It must be noted in that regard that an examination of the substance of the Commission's principal claim does not necessarily require the Court to take a view on the question whether the amendments made in 1995 transformed the pre-existing 1980 Agreement into a new agreement.
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31. Thus, it follows from settled case-law that the unconditional nature of an obligation to grant an exemption cannot be affected at all by the degree of latitude afforded to Member States by introductory wording such as that contained in Article 14(1) of Directive 2003/96, according to which exemptions are granted by those States ‘under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse’. A Member State may not rely, as against a taxpayer who is able to show that his tax position actually falls within one of the categories of exemption laid down in a directive, on its failure to adopt the very provisions which are intended to facilitate the application of that exemption (see, by analogy, Becker , paragraph 33; Braathens , paragraph 31; Case C-141/00 Kügler [2002] ECR I-6833, paragraph 52; Case C-45/01 Dornier [2003] ECR I-12911, paragraph 79; and Joined Cases C-453/02 and C-462/02 Linneweber and Akritidis [2005] ECR I-1131, paragraph 34).
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79. In addition, although Article 13A(1) of the Sixth Directive provides that the Member States are to apply the exemptions prescribed by that provision " under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any possible evasion, avoidance or abuse" , a Member State may not rely, as against a taxpayer who is able to show that his tax position actually falls within one of the categories of exemption laid down in the Sixth Directive, on its failure to adopt the very provisions which are intended to facilitate the application of that exemption ( Kügler , cited above, paragraph 52).
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25 IT IS TRUE THAT FOLLOWING THAT WARNING THE APPLICANT ' S OWN DOCTOR WROTE ON 14 DECEMBER 1980 TO THE HEAD OF THE MEDICAL BRANCH AT THE ISPRA CENTRE A LETTER INFORMING HIM THAT UPON HIS ADVICE MR GEIST WOULD NOT BE GOING TO ISPRA BECAUSE HE WAS NOT FIT TO WORK THERE . THAT LETTER WAS THUS CONFINED TO GIVING AN OPINION OF WHICH DR DE GEYTER WAS ALREADY AWARE ; IT CONTAINED NO PRECISE MEDICAL DIAGNOSIS AND DID NOT MENTION ANY NEW FACTOR AFFECTING THE APPLICANT ' S HEALTH SUBSEQUENT TO THE MEDICAL EXAMINATION OF THE PREVIOUS 15 NOVEMBER . THE HEAD OF THE ADMINISTRATION AND PERSONNEL DIVISION AT ISPRA THEREFORE RIGHTLY TOOK THE VIEW THAT THE LETTER COULD NOT JUSTIFY MR GEIST ' S ABSENCE NOR COULD IT NECESSITATE A FRESH MEDICAL EXAMINATION OR A REFERENCE TO THE INVALIDITY COMMITTEE . ALTHOUGH THE APPLICANT RELIES ON THE PRODUCTION OF VARIOUS ADDITIONAL MEDICAL CERTIFICATES DATING FROM OCTOBER 1981 , THEY ARE SUBSEQUENT TO THE CONTESTED DECISION AND IN ANY EVENT DO NOT AFFECT ITS VALIDITY .
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28. It is important to note in that regard that, as in the case of Article 27 of Regulation No 44/2001 and Article 21 of the Brussels Convention, the concept of ‘established jurisdiction’ in Article 19 of Regulation No 2201/2003 must be interpreted independently, by reference to the scheme and purpose of the act that contains it (see, to that effect, judgments in Shearson Lehman Hutton , C‑89/91, EU:C:1993:15, paragraph 13, and Cartier parfums-lunettes and Axa Corporate Solutions assurances , C‑1/13, EU:C:2014:109, paragraph 32).
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32. According to settled case-law, the provisions of that regulation must be interpreted independently, by reference to its scheme and purpose (see, Case C‑456/11 Gothaer Allgemeine Versicherung and Other s [2012] ECR, paragraph 25 and the case-law cited).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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49. Furthermore, as the Court held at paragraph 39 of its judgment in Case C-306/98 Monsanto [2001] ECR I-3297, it is against the yardstick of the requirements laid down in Article 4(1)(b)(i) to (v), and (c) to (f), of Directive 91/414 that the Member States must decide whether to review plant protection products.
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39 In reality, the expression before such review has taken place which appears in Article 8(3) of Directive 91/414 must be understood, as the United Kingdom Government has, in substance, argued, as meaning that it is against the yardstick of the requirements laid down in Article 4(1)(b)(i) to (v), and (c) to (f), of that directive that the Member States must decide whether to proceed to a review of plant protection products.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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23. It should be noted at the outset that, first, as stated by the Swedish Government in its written observations, the Swedish debt relief procedure does not entail the divestment of the debtor, with the result that it cannot be classified as an insolvency procedure within the meaning of Article 1 of Regulation No 1346/2000 (see, to that effect, Case C‑341/04 Eurofood IFSC [2006] ECR I‑3813, paragraph 46).
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46. The wording of Article 1(1) of the Regulation shows that the insolvency proceedings to which it applies must have four characteristics. They must be collective proceedings, based on the debtor’s insolvency, which entail at least partial divestment of that debtor and prompt the appointment of a liquidator.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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23. According to Article 3(1)(b) of Directive 89/104, the distinctive character of a mark must be assessed in relation to the goods or services in respect of which registration is applied for and in relation to the perception of the relevant consumers (see Case C-299/99 Philips [2002] ECR I-5475, paragraphs 59 and 63, and Case C-218/01 Henkel [2004] ECR I-0000, paragraph 50).
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63 Second, the distinctive character of a sign consisting in the shape of a product, even that acquired by the use made of it, must be assessed in the light of 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 (see, to that effect, the judgment in Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraph 31).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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19
As is apparent from the first subparagraph of Article 27(2) of Directive 2004/38, in order to be justified, measures restricting the right of residence of a Union citizen or a member of his family, including measures taken on grounds of public policy, must comply with the principle of proportionality and be based exclusively on the personal conduct of the individual concerned (judgment of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 59).
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59
As is apparent from the first subparagraph of Article 27(2) of Directive 2004/38, in order to be justified, measures restricting the right of residence of a Union citizen or a member of his family, including measures taken on grounds of public policy, must comply with the principle of proportionality and be based exclusively on the personal conduct of the individual concerned.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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42. It is in the light of those principles that the Court has therefore held that the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier (see, to that effect, Mostaza Claro , paragraph 38; Case C-243/08 Pannon GSM [2009] ECR I-4713, paragraph 31; Asturcom Telecomunicaciones , paragraph 32; and VB Pénzügyi Lízing , paragraph 49).
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49. Thus, in the exercise of the functions incumbent upon it under the provisions of the Directive, the national court must ascertain whether a contractual term which is the subject of the dispute before it falls within the scope of that Directive. If it does, that court must assess that term, if necessary, of its own motion, in the light of the requirements of consumer protection laid down by that Directive.
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31. The effective monitoring of the activities of investment firms, through supervision within a Member State and the exchanging of information by the competent authorities of several Member States, as briefly described in the preceding paragraphs, requires that both the firms monitored and the competent authorities can be sure that the confidential information provided will, in principle, remain confidential (see by analogy, judgment in Hillenius , 110/84, EU:C:1985:495, paragraph 27).
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44. Any other interpretation would considerably reduce the scope of the NRF, undermine the effectiveness of its provisions and therefore compromise the achievement of the objectives pursued by that framework. Since the purpose of the NRF, as is apparent from recital 5 in the preamble to Directive 2009/140, is to establish a genuine internal market for electronic communications, in which those communications are ultimately to be governed by competition law only, the exclusion of the activities of an undertaking such as UPC from its scope, on the pretext that it is not the owner of the satellite infrastructure which enables signals to be transmitted, would deprive the NRF of much of its meaning (see, to that effect, UPC Nederland EU:C:2013:709, paragraph 45).
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45. Any other interpretation would considerably reduce the scope of the NRF, undermine the effectiveness of its provisions and therefore compromise the achievement of the objectives pursued by that framework. Since the purpose of the NRF, as is apparent from recital 5 in the preamble to Directive 2009/140, is to establish a genuine internal market for electronic communications, in which those communications must, eventually, be governed solely by competition law, the exclusion of the activities of an undertaking such as UPC from its scope, on the pretext that it does not restrict itself to conveying signals, would deprive the NRF of all meaning.
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32. However, the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court (see, to that effect, PreussenElektra , cited above, paragraph 39). The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions (Bosman , paragraph 60; Der Weduwe , paragraph 32, and Bacardi-Martini and Cellier des Dauphins , paragraph 42).
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32. If a Member State has introduced a private copying exception into its national law, it must ensure, in accordance with its territorial competence, the effective recovery of the fair compensation for the harm suffered by the holders of the exclusive right of reproduction by reason of the reproduction of protected works by final users who reside on the territory of that State (see, to that effect, Stichting de Thuiskopie , paragraph 36). Thus, where such recovery presents difficulties, the Member State concerned is also required to resolve them by taking into account the circumstances of each case.
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36. It follows from the foregoing that, if a Member State has introduced an exception for private copying into its national law and if the final users who, on a private basis, reproduce a protected work reside on its territory, that Member State must ensure, in accordance with its territorial competence, the effective recovery of the fair compensation for the harm suffered by the authors on the territory of that State.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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32. It is also necessary, finally, to point out that where the principle of legal certainly precludes the beneficiary of a Community financial assistance from being required to repay it, the Community's interest in recovering that assistance must nevertheless be taken into consideration ( Huber , paragraph 57).
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57 However, the Community's interest in recovering aid which has been received in breach of the conditions under which it was granted must be taken fully into consideration in assessing the interests in question (Deutsche Milchkontor, paragraph 32, Oelmühle and Schmidt Söhne, paragraph 24 and Flemmer and Others, paragraph 61).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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81. According to settled case-law, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 155, and Case C-49/92 P Commission v Anic [1999] ECR I-4125, paragraph 96).
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96 The Court finds that the Court of First Instance was entitled to hold, without unduly reversing the proof, that since the Commission had been able to establish that Anic had participated in the meetings at which price initiatives had been decided on, planned and monitored, it was for Anic to adduce evidence that it had not subscribed to those initiatives.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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30. The Court has also held that the first subparagraph of Article 2(1) of the Second Directive simply repeats that obligation with respect to provisions or clauses in an insurance policy excluding from insurance cover against civil liability in respect of motor vehicles damage caused to third parties as a result of the use or driving of the insured vehicle by persons not authorised to drive the vehicle, persons not holding a driving licence or persons in breach of the statutory technical requirements concerning the condition and safety of the vehicle ( Ruiz Bernáldez , paragraph 21, and Candolin and Others , paragraph 19).
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19. The Court has also held that the first subparagraph of Article 2(1) of the Second Directive simply repeats that obligation with respect to provisions or clauses in a policy excluding from insurance the use or driving of vehicles in particular cases (persons not authorised to drive the vehicle, persons not holding a driving licence, persons in breach of the statutory technical requirements concerning the condition and safety of the vehicle) ( Ruiz Bernáldez , paragraph 21).
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137. In a situation such as that in the present case, the liability of Areva and Alstom, as parent companies, for the infringement committed is wholly derived from the liability of a subsidiary which belonged to those companies in succession (see, by analogy, Case C‑286/11 P Commission v Tomkins [2013] ECR, paragraphs 43 and 49).
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18 It is true, as the Court held in paragraph 36 of its judgment in Case C-200/97 Ecotrade v Altiforni e Ferriere di Servola [1998] ECR I-7907 in relation to the Italian special administration procedure for large companies in difficulties, that the possible loss of tax revenue for the State as a result of the application to an undertaking of legislation on court-supervised recovery schemes and insolvency does not in itself justify treating that legislation as aid. Such a consequence is an inherent feature of any statutory system laying down a framework for relations between an insolvent undertaking and the general body of its creditors, and the existence of an additional financial burden borne directly or indirectly by the public authorities as a means of granting a particular advantage to the undertakings concerned may not automatically be inferred from it (see, to that effect, Joined Cases C-72/91 and C-73/91 Sloman Neptun v Bodo Ziesemer [1993] ECR I-887, paragraph 21).
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21 The system at issue does not seek, through its object and general structure, to create an advantage which would constitute an additional burden for the State or the abovementioned bodies, but only to alter in favour of shipping undertakings the framework within which contractual relations are formed between those undertakings and their employees. The consequences arising from this, in so far as they relate to the difference in the basis for the calculation of social security contributions, mentioned by the national court, and to the potential loss of tax revenue because of the low rates of pay, referred to by the Commission, are inherent in the system and are not a means of granting a particular advantage to the undertakings concerned.
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36. In addition to the legitimacy which it derives from the very wording of the treaties, such an interpretation is the only one consistent with the principles of legal certainty and non-discrimination.
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68 Where, as in the main proceedings, the Turkish national fulfils the conditions laid down by a provision of Decision No 1/80 and accordingly is already duly integrated in a Member State, the latter no longer has the power to restrict application of those rights, as otherwise that decision would be rendered redundant (see, in particular, Birden, paragraph 37, Nazli, paragraph 30, and Case C-65/98 Eyüp [2000] ECR I-4747, paragraph 41).
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37 Furthermore, the Court has held that, although, as the law stands at present, Decision No 1/80 does not encroach upon the competence of the Member States to refuse Turkish nationals the right of entry into their territories and to take up first employment there and does not preclude those Member States, in principle, from regulating the conditions under which Turkish nationals work for up to one year as provided for in the first indent of Article 6(1) of that decision, none the less that provision cannot be construed as permitting a Member State to modify unilaterally the scope of the system of gradual integration of Turkish workers in the host State's labour force, by denying a worker who has been permitted to enter its territory and who has lawfully pursued a genuine and effective economic activity for a continuous period of more than one year with the same employer the rights which the three indents of that provision confer on him progressively according to the duration of his employment. The effect of such an interpretation would be to render Decision No 1/80 meaningless and deprive it of any practical effect (see, to that effect, the judgment in Günaydin, paragraphs 36 to 38).
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60 FURTHER, FIXING LARGE MINIMUM AMOUNTS ( 1 000 METRIC TONS ) FOR EACH INDIVIDUAL TENDER SUBMITTED FOR AN AWARD - TOGETHER WITH THE ABSENCE OF ANY INDEPENDENT DISTRIBUTIVE NETWORK AND THE FACT THAT IT WAS ALMOST IMPOSSIBLE FOR INDUSTRIAL CONSUMERS, WHO HAVE NO STORAGE FACILITIES AND MORE OFTEN THAN NOT HAVE TO OBTAIN THEIR SUPPLIES ON A DAY TO DAY BASIS, TO TAKE PART IN THE INVITATIONS TO TENDER - OF NECESSITY RESULTED IN ITALIAN PRODUCERS, IN ACCORDANCE WITH THE WISH OF THE NATIONAL AUTHORITIES, ALONE BEING ABLE TO ATTEND THE INVITATIONS TO TENDER AND THIS WAS BOUND TO MAKE FOREIGN SUPPLIERS OFFER THE SAID PRODUCERS A LARGE PROPORTION OF THE SUGAR WHICH THEY INTENDED TO EXPORT TO ITALY .
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53. Furthermore, Article 215(2) TFEU allows the Council to adopt restrictive measures against natural or legal persons and groups or non-State entities, namely, measures that, before the Treaty of Lisbon entered into force, required Article 308 EC too to be included in their legal basis if their addressees were not linked to the governing regime of a third country (see, to that effect, Kadi and Al Barakaat International Foundation v Council and Commission , paragraph 216).
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216. Since Articles 60 EC and 301 EC do not, however, provide for any express or implied powers of action to impose such measures on addressees in no way linked to the governing regime of a third country such as those to whom the contested regulation applies, that lack of power, attributable to the limited ambit ratione materiae of those provisions, could be made good by having recourse to Article 308 EC as a legal basis for that regulation in addition to the first two provisions providing a foundation for that measure from the point of view of its material scope, provided, however, that the other conditions to which the applicability of Article 308 EC is subject had been satisfied.
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53. It is clear from the objectives of the framework agreement on parental leave, that the concept of ‘[r]ights acquired or in the process of being acquired’ within the meaning of Clause 2.6 of the framework agreement covers all the rights and benefits, whether in cash or in kind, derived directly or indirectly from the employment relationship, which the worker is entitled to claim from the employer at the date on which parental leave starts ( Meerts , paragraph 43).
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57. It is settled case-law that the prohibition of quantitative restrictions and measures having equivalent effect laid down by Article 28 EC applies not only to national measures but also to measures adopted by the Community institutions (see in particular, to that effect, Case 15/83 Denkavit Nederland [1984] ECR 2171, paragraph 15; Case C-51/93 Meyhui [1994] ECR I-3879, paragraph 11; and Case C-114/96 Kieffer and Thill [1997] ECR I-3629, paragraph 27).
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11 It is settled law that the prohibition of quantitative restrictions and of all measures having equivalent effect applies not only to national measures but also to measures adopted by the Community institutions (see in particular Case 15/83 Denkavit Nederland v Hoofdproduktschap voor Akkerbouwprodukten [1984] ECR 2171, paragraph 15).
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49. It is for the referring court, by means of an analysis of all the circumstances of the dispute in the main proceedings, to ascertain whether the contractual terms do not genuinely reflect economic reality and whether it is Mr Newey, and not Alabaster, who was actually the supplier of the loan broking services at issue and the recipient of the supplies of advertising services provided by Wallace Barnaby.
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84. Thus, as Mr Fuß and the Commission have correctly pointed out, Article 6(b) of Directive 2003/88, far from requiring the workers concerned to request their employers to comply with the minimum requirements provided for by that provision, in fact imposes on employers, where internal law applies the derogation provided for in Article 22 of that directive, the obligation to obtain the individual, explicit and free consent of that worker to the relinquishing of the rights conferred by Article 6(b) (see Pfeiffer and Others , paragraphs 82 and 84).
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84. It follows that, for a derogation from the maximum period of weekly working time laid down in Article 6 of Directive 93/104 (48 hours) to be valid, the worker’s consent must be given not only individually but also expressly and freely.
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49
However, a distinction must be made according to whether the measure in question is envisaged as a general scheme of aid or as individual aid. In the latter case, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective. By contrast, when examining a general scheme of aid, it is necessary to identify whether the measure in question, notwithstanding the finding that it confers an advantage of general application, does so to the exclusive benefit of certain undertakings or certain sectors of activity (see judgment of 4 June 2015 in Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 60).
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60. Concernant, d’autre part, les informations relatives aux montants des intérêts, frais et commissions ainsi qu’aux conditions dans lesquelles ces montants peuvent être modifiés, la Cour a déjà considéré qu’il résulte des articles 3 et 5 ainsi que des points 1, sous j), et 2, sous b) et d), de l’annexe de la directive 93/13 que revêt une importance essentielle le point de savoir si le contrat expose de manière transparente le motif et le mode de variation des frais liés au service à fournir, de sorte que le consommateur puisse prévoir, sur le fondement de critères clairs et compréhensibles, les modifications éventuelles de ces frais (voir, en ce sens, arrêt RWE Vertrieb, C‑92/11, EU:C:2013:180, point 49).
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49. As regards the assessment of a term that allows the supplier to alter unilaterally the charges for the service to be supplied, the Court has previously stated that it follows from Articles 3 and 5 of and points 1(j) and (l) and 2(b) and (d) of the annex to Directive 93/13 that it is of fundamental importance for that purpose, first, whether the contract sets out in transparent fashion the reason for and method of the variation of the charges for the service to be provided, so that the consumer can foresee, on the basis of clear, intelligible criteria, the alterations that may be made to those charges and, secondly, whether consumers have the right to terminate the contract if the charges are in fact altered (see, to that effect, Invitel , paragraphs 24, 26 and 28).
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21 NEXT , IT SHOULD BE NOTED THAT THE BARRING OF CLAIMS ON THE GROUND THAT THE REQUISITE DOCUMENTS HAVE BEEN SUBMITTED OUT OF TIME IS NOT A PENALTY BUT , AS A GENERAL RULE , THE NORMAL CONSEQUENCE OF THE EXPIRY OF ANY PRESCRIBED PERIOD THE OBSERVANCE OF WHICH IS MANDATORY . IT MUST BE BORNE IN MIND THAT IN THE PRESENT CASE ARTICLE 15 PROVIDES THAT DELAYS MAY BE JUSTIFIED BY EXCEPTIONAL CIRCUMSTANCES AMOUNTING TO FORCE MAJEURE .
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41. According to settled case-law of the Court, the choice of the legal basis of an EU act must rest on objective factors that are amenable to judicial review, including the aim and content of the act (judgment in Commission v Parliament and Council , C‑43/12, EU:C:2014:298, paragraph 29 and the case-law cited).
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29. According to settled case-law of the Court, the choice of legal basis for a European Union measure must rest on objective factors that are amenable to judicial review; these include the aim and content of that measure (see, to that effect, Case C‑411/06 Commission v Parliament and Council EU:C:2009:518, paragraph 45 and the case-law cited, and Case C‑130/10 Parliament v Council EU:C:2012:472, paragraph 42 and the case-law cited).
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28. It follows that Article 27(3) and (4) of Regulation No 882/2004 and Annex IV, section B to that regulation leave no discretion to the Member States as regards the fixing of the minimum rates referred to in those provisions, nor do they call for the adoption of implementing measures by those Member States.
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63. According to settled case-law, the Court has no power, within the framework of Article 234 EC, to give preliminary rulings on the interpretation of rules pertaining to national law (Case 75/63 Hoekstra ( née Unger) [1964] ECR 177, 186 and Case C-341/94 Allain [1996] ECR I-4631, paragraph 11). The jurisdiction of the Court is confined to considering provisions of Community law only (Case C‑307/95 Max Mara [1995] ECR I-5083, paragraph 5). It is for the national court to assess the scope of the national provisions and the manner in which they must be applied (Case C-45/94 Cámara de Comercio , Industria y Navegación de Ceuta [1995] ECR I-4385, paragraph 26).
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26 In that connection, it must be stressed that it is for the national court to resolve any question of fact relevant to the disposal of the case before it, to assess the scope of the national provisions and the manner in which they must be applied. The Court of Justice may, however, infer from the questions referred the various possible hypotheses and indicate, for each of them, the criteria of Community law which it will be for the national court to apply.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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72. Since Bozkurt (cited above), paragraphs 14, 19 and 20, the Court has consistently inferred from the wording of Article 12 of the Association Agreement and Article 36 of the Additional Protocol, as well as from the objective of Decision No 1/80 ─ which is progressively to secure freedom of movement for workers, guided by Articles 48, 49 and 50 of the Treaty ─ that the principles laid down in those articles must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision No 1/80 (see, inter alia , Case C-340/97 Nazli [2000] ECR I-957, paragraphs 50 to 55, and the references cited therein).
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14 It should first be noted that Decision No 2/76 is presented, in Article 1 thereof, as constituting a first stage in securing freedom of movement for workers between the Community and Turkey which was to last for four years as from 1 December 1976. Section 1 of Chapter II, headed "Social Provisions", of Decision No 1/80, which includes Article 6, constitutes a further stage in securing freedom of movement for workers and has applied, pursuant to Article 16, since 1 December 1980. As from that date, Article 6 of Decision No 1/80 has replaced the corresponding, less favourable, provisions of Decision No 2/76. That being so, for the purposes of giving a helpful answer to the questions submitted to the Court, and having regard to the times at which the facts summarized above occurred, it is solely to Article 6 of Decision No 1/80 that reference should be made.
The first question
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27. Il est, par ailleurs, de jurisprudence constante que doivent être considérées comme des restrictions à la liberté d’établissement toutes les mesures qui interdisent, gênent ou rendent moins attrayant l’exercice de cette liberté (arrêt National Grid Indus, précité, point 36 et jurisprudence citée).
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32. It must be noted, first, that, according to settled case-law, the need for a uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union (Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43, and Case C‑34/10 Brüstle [2011] ECR I‑0000, paragraph 25).
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43 The need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question (Case 327/82 Ekro v Produktschap voor Vee en Vlees [1984] ECR 107, paragraph 11).
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55. That public interest requires that all signs or indications which may serve to designate characteristics of the goods or services in respect of which registration is sought remain freely available to all undertakings in order that they may use them when describing the same characteristics of their own goods. Therefore, marks consisting exclusively of such signs or indications are not eligible for registration unless Article 3(3) of the Directive applies.
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37. Dans la mesure où l’article 132, paragraphe 1, sous i), de la directive TVA ne précise pas les conditions ou les modalités auxquelles ces fins comparables peuvent être reconnues, il appartient, en principe, au droit national de chaque État membre d’édicter les règles selon lesquelles une telle reconnaissance peut être accordée à de tels organismes. Les États membres disposent d’un pouvoir d’appréciation à cet égard (voir, en ce sens, arrêts précités Kingscrest Associates et Montecello, points 49 et 51, ainsi que Zimmermann, point 26).
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26. Article 13A(1)(g) of the Sixth Directive does not specify the conditions and procedures for recognising such organisations (see Case C‑498/03 Kingscrest Associates and Montecello [2005] ECR I‑4427, paragraph 49). In consequence, it is in principle for the national law of each Member State to lay down the rules in accordance with which that recognition may be granted to such organisations. Member States have a discretion in that respect (see inter alia, to that effect, Kügler , paragraph 54; Kingscrest Associates and Montecello , paragraphs 49 and 51; and Case C‑415/04 Stichting Kinderopvang Enschede [2006] ECR I‑1385, paragraph 23).
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37. In that regard, as has already been stated, products such as those at issue in the main proceedings have, as a result of the addition of water and other substances, lost the taste, smell and appearance of a beverage produced from a particular fruit or natural product, that is to say a fermented beverage. The particular organoleptic characteristics of those products, which define their essential character, therefore correspond to those of products classified in heading 2208 of the CN.
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36. However, the Court has equally clearly expressed the view, in that regard, referring expressly to the fact that the right to paid annual leave is a principle of European Union social law of particular importance expressly affirmed by Article 31(2) of the Charter, that to uphold that right, the objective of which is the protection of workers, any carry-over period must be substantially longer than the reference period in respect of which it is granted ( KHS , paragraphs 37 and 38, and Neidel , paragraphs 40 and 41).
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41. It follows that, in order to uphold that right, the objective of which is the protection of workers, any carry‑over period must take into account the specific circumstances of a worker who is unfit for work for several consecutive reference periods. Thus, the carry‑over period must, inter alia, ensure that the worker can have, if need be, rest periods that may be staggered, planned in advance and available in the longer term and must be substantially longer than the reference period in respect of which it is granted ( KHS , paragraph 38).
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27. While the Aarhus Convention Implementation Guide may thus be regarded as an explanatory document, capable of being taken into consideration if appropriate among other relevant material for the purpose of interpreting the Convention, the observations in the Guide have no binding force and do not have the normative effect of the provisions of the Aarhus Convention.
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52. However, as the Court has consistently held, the provisions of Regulation No 1408/71 enacted to give effect to Article 42 EC must be interpreted in the light of the objective of that article, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers (Case C‑215/99 Jauch [2001] ECR I‑1901, paragraph 20).
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20 As the Court has consistently held (see, for example, Case 284/84 Spruyt [1986] ECR 685, paragraphs 18 and 19), the provisions of Regulation No 1408/71 adopted to give effect to Article 51 of the EC Treaty (now, after amendment, Article 42 EC) must be interpreted in the light of the objective of that article, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers. The aim of Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC), Article 50 of the EC Treaty (now Article 41 EC) and Article 51 of the Treaty would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the social security advantages guaranteed them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid.
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62. Also according to the order for reference, it is only if, as a result of a set of very special individual circumstances, the third country national is permanently unable to pass that examination that the hardship clause is to apply.
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51. Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 81(1) EC, to prove that they have actual effects on the market (see, to that effect, in particular, judgment in Clair , 123/83, EU:C:1985:33, paragraph 22). Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers.
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22 IT MUST BE POINTED OUT IN THAT RESPECT THAT FOR THE PURPOSES OF ARTICLE 85 ( 1 ) IT IS UNNECESSARY TO TAKE ACCOUNT OF THE ACTUAL EFFECTS OF AN AGREEMENT WHERE ITS OBJECT IS TO RESTRICT , PREVENT OR DISTORT COMPETITION . BY ITS VERY NATURE , AN AGREEMENT FIXING A MINIMUM PRICE FOR A PRODUCT WHICH IS SUBMITTED TO THE PUBLIC AUTHORITIES FOR THE PURPOSE OF OBTAINING APPROVAL FOR THAT MINIMUM PRICE , SO THAT IT BECOMES BINDING ON ALL TRADERS ON THE MARKET IN QUESTION , IS INTENDED TO DISTORT COMPETITION ON THAT MARKET .
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50. Consequently, the Court cannot, in the context of infringement proceedings, rule on pleas like those in the present case which seek an order that the Member State pay default interest.
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46. Furthermore, inasmuch as it imposes on Member States the obligation not to impose taxation under the directive on ‘energy products and electricity used to produce electricity and electricity used to maintain the ability to produce electricity’, Article 14(1)(a) of Directive 2003/96 defines clearly the products covered by the exemption (see, to that effect, judgment in Flughafen Köln/Bonn , C‑226/07, EU:C:2008:429, paragraph 29).
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29. With regard to the first condition, it must be held that Article 14(1)(a) of Directive 2003/96, in so far as it imposes on Member States the obligation not to impose taxation under the directive on energy products used to produce electricity, is sufficiently precise, since it lays down clearly the products covered by the exemption (see, by analogy, Case 8/81 Becker [1982] ECR 53, paragraph 27, and Braathens , paragraph 31).
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97. First, by limiting de facto the number of operators able to broadcast on the market in question, those measures are and/or were likely to hinder the provision of services in the area of television broadcasting.
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40
In that regard, the Court has previously stated that Article 6(1) of that convention does not impose an absolute obligation to hold a public hearing and does not necessarily require that a hearing be held in all proceedings. It has held, similarly, that neither the second paragraph of Article 47 of the Charter nor any other provision thereof imposes such an obligation (judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 44, which refers to the judgment of the ECtHR, 23 November 2006, Jussila
v. Finland, CE:ECHR:2006:1123JUD007305301, § 41).
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44. Or, l’article 6, paragraphe 1, de la convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales, signée à Rome le 4 novembre 1950, n’impose pas une obligation absolue de tenir une audience publique et n’exige pas nécessairement la tenue d’une audience dans toutes les procédures (voir Cour EDH, arrêt Jussila c. Finlande, du 23 novembre 2006, § 41). De même, ni l’article 47, deuxième alinéa, de la Charte ni aucune autre disposition de celle-ci n’imposent une telle obligation.
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21 There is, however, an exception to that principle. As the Court stated in Just, Denkavit and San Giorgio, cited above, the protection of the rights so guaranteed by the Community legal order does not require repayment of taxes, charges and duties levied in breach of Community law where it is established that the person required to pay such charges has actually passed them on to other persons (see, in particular, San Giorgio, paragraph 13).
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21 In that regard it must be emphasised that the probative value of a fax depends both on the degree of formality that the applicable provisions require for the act in question and the conditions governing the use of the fax transmission process, bearing in mind that, as a rule, the binding legal effects of the act are in no way affected by the fact that it is sent by fax (see, to that effect, Case C-170/89 BEUC v Commission [1991] ECR I-5709, paragraphs 9 to 11).
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11 It must be pointed out that, inasmuch as the letter refuses the BEUC access to the non-confidential file, it constitutes not merely a communication but a decision which adversely affects the interests of the BEUC. The Commission' s letter must therefore be regarded as an act adversely affecting the BEUC which may be the subject of an action under Article 173 of the EEC Treaty.
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33 It must next be noted that although pregnancy is not in any way comparable to a pathological condition (Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567, paragraph 25), the fact remains that it is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to take absolute rest for all or part of her pregnancy. Those disorders and complications, which may cause incapacity for work, form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition (Case C-394/96 Brown v Rentokil [1998] ECR I-4185, paragraph 22).
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31. It is apparent from Article 3(5) of Regulation No 3665/87 that the document referred to there must, whatever its title, ‘include all information necessary for the calculation of the amount of the refund’, including ‘in particular’, first, a description of the products concerned in accordance with the nomenclature used for refunds, secondly, the net mass or quantity of those products and, thirdly, in so far as is necessary for calculating the refund, particulars of the composition of those products. The Court has already held that the information mentioned in Article 5 constitutes a non-exhaustive list ( Fleisch-Winter , paragraph 29, and Elfering Export , paragraph 25). The term ‘in particular’ means that the Community legislature expressly mentions only some of that information. The expression ‘all information’ must thus encompass all information relating to the conditions subject to which the export refund is granted (see, as regards Article 5(4)(a) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11), which replaced Regulation No 3665/87, Elfering Export , paragraph 26).
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29. The fact that ‘sound and fair marketable quality’ is a material condition for the payment of refunds is not invalidated, as Fleisch-Winter maintains, by Article 3(5) of Regulation No 3665/87, since the information mentioned therein constitutes a non-exhaustive list.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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21. It is to be noted, to begin with, that the deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (Case C-98/98 Midland Bank [2000] ECR I-4177, paragraph 19, and Case C-408/98 Abbey National [2001] ECR I-1361, paragraph 24).
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19 As a preliminary point, it must be recalled that the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities, provided that such activities are themselves, in principle, subject to VAT (see, to this effect, Case 268/83 Rompelman v Minister van Financiën [1985] ECR 655, paragraph 19, Case C-37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 15, and Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 44). However, by way of exception, a taxable person who, like Samuel Montagu, carries out exempt transactions pursuant to Article 13B(d)(1) to (5) of the Sixth Directive in the circumstances provided for in Article 17(3)(c) is also entitled under that provision to deduct VAT to the extent that he has used input goods and services for the purpose of such exempt transactions.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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65. Since that provision was not repealed after the reunification of Germany either by the Treaty on European Union or by the Treaty of Amsterdam, it cannot, in the light of the objective scope of the rules of Community law, be presumed that it has been devoid of purpose since that reunification (see Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraphs 47 and 48, and Case C-334/99 Germany v Commission [2003] ECR I-1139, paragraph 116).
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116. After the reunification of Germany that provision was not repealed either by the Treaty on European Union or by the Treaty of Amsterdam (Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 47).
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27 Such national provisions cannot, furthermore, be exempt from the conditions and limits of application laid down in Regulation No 1408/71 by categorising them as rules of evidence.
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30. Such a difference in treatment is permissible only if it relates to situations which are not objectively comparable or if it is justified by an overriding reason in the public interest (see, inter alia, judgment in Nordea Bank , C‑48/13, EU:C:2014:2087, paragraph 23).
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23. It is clear from the Court’s case-law that such a restriction is permissible only if it relates to situations which are not objectively comparable or if it is justified by an overriding reason in the public interest (see, to this effect, the judgment in Philips Electronics UK , C‑18/11, EU:C:2012:532, paragraph 17 and the case-law cited).
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52. De surcroît, ainsi que la Commission l’a fait valoir, les critères régissant la décision qui doit être prise par le Conseil des ministres sont définis de manière non exhaustive et laissent par conséquent à celui-ci une large marge d’appréciation difficilement contrôlable par les juridictions.
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39. If the referring court were to consider that that term forms part of the main subject-matter of the contractual framework, that court must also determine whether that term has been drafted by the seller or supplier in plain, intelligible language (see, to that effect, judgment in Caja de Ahorros y Monte de Piedad de Madrid , C‑484/08, EU:C:2010:309, paragraph 32, and order in Pohotovosť , C‑76/10, EU:C:2010:685, paragraph 72).
The concept of ‘plain, intelligible language’
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32. It thus follows from the actual wording of Article 4(2) of the Directive that that provision, as the Advocate General has noted in point 74 of her Opinion, cannot be regarded as laying down the scope ratione materiae of the Directive. On the contrary, the terms referred to in Article 4(2), while they come within the area covered by the Directive, escape the assessment as to whether they are unfair only in so far as the national court having jurisdiction should form the view, following a case-by-case examination, that they were drafted by the seller or supplier in plain, intelligible language.
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38. To tax, on the overall sale price, the supply by a sale and leaseback undertaking of a car which it purchased second-hand, when, at the time of that purchase it was not able to deduct the VAT which remained incorporated in the purchase price, gives rise to the risk of double taxation.
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120. As regards the objection by Ireland and the United Kingdom Government based on Article 137(5) EC, as interpreted by the judgment in Case C‑14/04 Dellas and Others [2005] ECR I‑10253, paragraphs 38 and 39, it must be borne in mind that Directive 1999/70 was adopted on the basis of Article 139(2) EC, which refers to Article 137 EC for the list of matters within the competence of the Council for the purposes, inter alia, of implementing agreements concluded between social partners at Community level.
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38. However, as regards the latter aspect, it must be pointed out at the outset that, as follows from both the purpose and the actual wording of its provisions, Directive 93/104 does not apply to the remuneration of workers.
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69 Lastly, the Court dealt in the Barber judgment for the first time with the question of how inequality of treatment arising from the setting of different retirement ages for each sex was to be assessed with reference to Article 119. There is no question that such differentiation is not peculiar to contracted-out occupational schemes. On the contrary, it is to be found in other types of occupational schemes and produces the same discriminatory effects.
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60
In its judgment of 21 December 2011, N. S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 86 to 94 and 106), the Court stressed that the transfer of asylum seekers within the framework of the Dublin system may, in certain circumstances, be incompatible with the prohibition laid down in Article 4 of the Charter. It thus held that an asylum seeker would run a real risk of being subjected to inhuman or degrading treatment, within the meaning of that article, in the event of a transfer to a Member State in which there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the conditions for the reception of applicants. Consequently, in accordance with the prohibition laid down in that article, the Member States may not carry out transfers within the framework of the Dublin system to a Member State in the case where they cannot be unaware that such flaws exist in that Member State.
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88. In a situation similar to those at issue in the cases in the main proceedings, that is to say the transfer, in June 2009, of an asylum seeker to Greece, the Member State responsible within the meaning of Regulation No 343/2003, the European Court of Human Rights held, inter alia, that the Kingdom of Belgium had infringed Article 3 of the ECHR, first, by exposing the applicant to the risks arising from the deficiencies in the asylum procedure in Greece, since the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities and, second, by knowingly exposing him to conditions of detention and living conditions that amounted to degrading treatment (European Court of Human Rights, M.S.S. v. Belgium and Greece , § 358, 360 and 367, judgment of 21 January 2011, not yet published in the Reports of Judgments and Decisions ).
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49. Next, even though Ms Danosa enjoyed a margin of discretion in the performance of her duties, she had to report on her management to the supervisory board and to cooperate with that board.
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28
As is apparent from the case-law of the Court, in order to comply with Article 5(2)(b) of Directive 2001/29, fair compensation and, therefore, the system on which it is based, must be linked to the harm resulting for the rightholder from the making of copies for private use (see, to that effect, judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 21 and the case-law cited).
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21. That being the case, fair compensation and, therefore, the system on which it is based, as well as the level of compensation, must be linked to the harm resulting for the rightholder from the making of copies for private use (see, to that effect, judgment in Padawan , EU:C:2010:620, paragraphs 40 et 42).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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44. As regards the arguments put forward by the Kingdom of Belgium as to the absence of any obligation to transpose the provisions of the Directive concerning the requirement to consult with the Member States concerned beforehand in the case of an interconnector, and the requirement to notify exemption decisions to the Commission, it should be noted that, according to settled case-law, the effect of the third paragraph of Article 249 EC is that Community directives must be implemented by appropriate measures taken by the Member States. The fact that, in specific circumstances, where the implementing measures required have not been adopted or measures have been adopted which are not consistent with a directive, the persons affected thereby are entitled to rely in law on a directive as against a defaulting Member State cannot justify a Member State absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, to that effect, Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 12; Case C-433/93 Commission v Germany [1995] ECR I‑2303, paragraph 24; and Case C-253/95 Commission v Germany [1996] ECR I-2423, paragraph 13). Similarly, and a fortiori, the fact that certain provisions of the Directive in question are directly applicable in the national legal system is not grounds for relieving the Member States of their obligations to transpose Community law.
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12 THE JUSTIFICATION BASED ON THE ' ' DIRECT APPLICABILITY ' ' OF THE DIRECTIVES IN QUESTION CANNOT BE ACCEPTED EITHER . THE EFFECT OF THE THIRD PARAGRAPH OF ARTICLE 189 IS THAT COMMUNITY DIRECTIVES MUST BE IMPLEMENTED BY APPROPRIATE IMPLEMENTING MEASURES CARRIED OUT BY THE MEMBER STATES . ONLY IN SPECIFIC CIRCUMSTANCES , IN PARTICULAR WHERE A MEMBER STATE HAS FAILED TO TAKE THE IMPLEMENTING MEASURES REQUIRED OR HAS ADOPTED MEASURES WHICH DO NOT CONFORM TO A DIRECTIVE , HAS THE COURT OF JUSTICE RECOGNIZED THE RIGHT OF PERSONS AFFECTED THEREBY TO RELY IN LAW ON A DIRECTIVE AS AGAINST A DEFAULTING MEMBER STATE ( CF . ON THIS SUBJECT , THE JUDGMENT OF 5 APRIL 1979 , RATTI , CASE 148/78 ECR 1629 ). THIS MINIMUM GUARANTEE ARISING FROM THE BINDING NATURE OF THE OBLIGATION IMPOSED ON THE MEMBER STATES BY THE EFFECT OF THE DIRECTIVES UNDER THE THIRD PARAGRAPH OF ARTICLE 189 CANNOT JUSTIFY A MEMBER STATE ' S ABSOLVING ITSELF FROM TAKING IN DUE TIME IMPLEMENTING MEASURES SUFFICIENT TO MEET THE PURPOSE OF EACH DIRECTIVE . AS STATED ABOVE , THESE MEASURES MUST CONSIST IN THIS CASE IN PROVISIONS EQUIVALENT TO THOSE WHICH ARE APPLIED UNDER THE NATIONAL LEGAL SYSTEM FOR THE PURPOSE OF SECURING OBSERVANCE OF REQUIREMENTS WHICH ARE DESCRIBED AS ' ' MANDATORY ' ' IN THE PREAMBLE TO THE TWO FRAMEWORK DIRECTIVES ( CF . THE FIRST RECITAL ).
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119 Traders who pay the levy are not, moreover, necessarily the same as those who receive the reimbursement. The latter include specialised traders who are not liable for the levy. Moreover, even so far as concerns manufacturers, the two amounts, fixed according to the manufacturing quota allocated to them and to the duration of storage respectively, do not automatically coincide.
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44. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments submitted to the General Court, including those based on facts expressly rejected by that Court (see, inter alia, Interporc v Commission , EU:C:2003:125, paragraph 16), it fails to satisfy the requirement to state reasons under those provisions. Such an appeal amounts to no more than a request for a re-examination of the application submitted to the General Court, a matter which falls outside the jurisdiction of the Court of Justice (see, inter alia, Reynolds Tobacco and Others v Commission , EU:C:2006:541, paragraph 50).
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16. By letter of 29 May 1996, the Secretary-General of the Commission rejected the confirmatory application in the following terms:
"Following an examination of your request, I regret to have to inform you that I confirm the decision of DG VI and DG XXI for the following reasons.
The documents requested all concern a Commission decision of 26 January 1996 (doc. COM (C)96 180 final) which has since become the subject-matter of an application for annulment brought by your representative (Case T-50/96).
Consequently, and without prejudice to other exceptions which might justify refusing access to the documents requested, the exception for protection of the public interest (court proceedings) is applicable. The Code of Conduct cannot oblige the Commission, as a party to a pending action, to provide the other party with documents relating to the dispute.
"
...
18. By application lodged at the Registry of the Court of First Instance on 9 August 1996, the applicant brought an action for annulment of the Commission's decision of 29 May 1996 confirming its refusal to allow the applicant access to certain of its documents. By its judgment in Case T-124/96 Interporc I [1998] ECR II-231, the Court of First Instance held that the statement of reasons in the decision of 29 May 1996 was inadequate and annulled that decision.
19. Moreover, in the course of proceedings in Case T-50/96, in response to the request of the Court of First Instance of 15 December 1997, the Commission produced certain documents some of which were the same as those requested by the applicant in the course of proceedings in Interporc I . In the present case the applicant has confirmed that the confirmatory application has ceased to have any purpose in so far as it relates to the documents the Commission produced at the request of the Court of First Instance in Case T-50/96.
20. In implementation of the judgment in Interporc I , the Commission sent to the applicant's lawyer a further decision dated 23 April 1998 concerning the applicant's confirmatory application of 27 March 1996 and containing an identical conclusion to that in the annulled decision of 29 May 1996 but stating different reasons ... The contested decision reads as follows:
"...
As regards the documents emanating from the Member States and the Argentine authorities, I would advise you to request a copy directly from those Member States and from the authorities concerned. Whilst the Code of Conduct provides that "the public will have the widest possible access to documents held by the Commission and the Council" , the fifth paragraph provides that "where the document held by an institution was written by a natural or legal person, a Member State, another Community institution or body or any other national or international body, the application must be sent direct to the author" . The Commission can therefore in no circumstances be accused of an abuse of rights; it is merely applying its decision of 8 February 1994 governing the implementation of the Code of Conduct.
All the other documents concern pending legal proceedings (Case T-50/96) and fall within the exception based on the protection of the public interest, and, in particular, of the proper conduct of court proceedings, expressly provided for by the Code of Conduct. To disclose them on the basis of provisions relating to public access to Commission documents is likely to be damaging to the interests of the parties in those proceedings, and in particular to the rights of the defence, and would be contrary to the special provisions governing the disclosure of documents in court proceedings.
"
"
The judgment under appeal
4. In support of its action for annulment of the contested decision the applicant relied, before the Court of First Instance,
─ as regards the documents emanating from the Commission, on three pleas in law alleging that the Commission infringed, first, the Code of Conduct and Decision 94/90, second, Article 176 of the EC Treaty (now Article 233 EC) in conjunction with the judgment in Interporc I and, third, Article 190 of the EC Treaty (now Article 253 EC), and
─ as regards the documents emanating from the Member States or the Argentine authorities, on three pleas alleging, first, the unlawfulness of the contested decision in so far as it is based on the authorship rule, second, infringement of the Code of Conduct adopted by Decision 94/90 and, third, infringement of Article 190 of the Treaty.
5. The Court of First Instance upheld the plea alleging infringement of the Code of Conduct adopted by Decision 94/90 on the ground that the Commission had misapplied the exception based on the protection of the public interest (court proceedings) and it therefore annulled the contested decision in so far as it refused to authorise access to documents emanating from the Commission.
6. However, the Court of First Instance held that the contested decision should not be annulled in so far as it refused access, on the basis of the authorship rule, to the documents emanating from the Member States or the Argentine authorities.
7. The Court of First Instance gave the following reasons for its rejection of the plea alleging the unlawfulness of the contested decision in so far as it is based on the authorship rule:
"55. It follows from the judgment in Interporc I , first, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision in implementation of that judgment and, second, that the decision of 29 May 1996 is deemed to have never existed.
56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule.
"
8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held:
"66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ...
...
69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55).
...
73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities.
74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ...
"
9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds:
"77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... .
78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37).
"
The appeal
10. By its appeal, Interporc claims that the Court should:
─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs;
─ annul the contested decision in its entirety;
─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance.
11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment).
12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment.
Admissibility of the appeal
Arguments of the parties
13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance.
14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly.
Findings of the Court
15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68).
16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24).
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36. Secondly, as is apparent from that regulation, Valimar’s resale prices were not used to calculate SSM’s export prices.
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47. However, the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts (see, inter alia, to that effect, Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 26; Case C‑106/89 Marleasing [1990] ECR I‑4135, paragraph 8; Faccini Dori , paragraph 26; Case C‑129/96 Inter-Environnement Wallonie [1997] ECR I‑7411, paragraph 40; Pfeiffer and Others , paragraph 110; and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others [2009] ECR I‑0000, paragraph 106).
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40 It should be recalled at the outset that the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 189 of the Treaty and by the directive itself (Case 51/76 Verbond van Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 113, paragraph 22; Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 48, and Case 72/95 Kraaijeveld and Others v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, paragraph 55). That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (see Case C-106/89 Marleasing v Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8, and Kraaijeveld, cited above, paragraph 55).
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17. It follows from all the foregoing that the Commission’s application must be dismissed as inadmissible.
Costs
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96. That sentence thus appears unconditional and sufficiently precise for the Court to be able to assess the validity of Directive 2008/101 in the light thereof (see, with regard to compliance with environmental norms derived from a convention, Pêcheurs de l’étang de Berre , paragraph 47).
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47. In the light of the foregoing, the answer to the first question must be that both Article 6(3) of the Protocol and Article 6(1) of the amended Protocol, following its entry into force, have direct effect, so that any interested party is entitled to rely on those provisions before the national courts.
Scope of Articles 6(3) of the Protocol and 6(1) of the amended Protocol
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20 ACCORDINGLY IT IS NOT ONLY THE FAMILY SITUATION OF THE WORKER THAT SHOULD BE TAKEN INTO ACCOUNT , BUT ALSO THE REASONS WHICH HAVE LED HIM TO MOVE , AND THE NATURE OF THE WORK .
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85. The question whether the grounds of a judgment are insufficient or contradictory is a question of law which may, as such, be raised on appeal (see, to that effect, inter alia, Case C‑401/96 P Somaco v Commission [1998] ECR I‑2587, paragraph 53).
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53 As regards the question whether the two grounds of appeal put forward by Somaco call into question findings of fact made by the Court of First Instance, it should be noted to begin with that the question whether the grounds of a judgment of the Court of First Instance are contradictory or inadequate is a question of law which is amenable, as such, to judicial review on appeal (see inter alia Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 29, and Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 24).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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56. It is true that the Court has also held that, where the European Union intends to implement a particular obligation assumed in the context of the agreements concluded in the context of the World Trade Organization (‘the WTO agreements’) or where the EU act at issue refers explicitly to specific provisions of those agreements, the Court should review the legality of the act at issue and the acts adopted for its implementation in the light of the rules of those agreements (see judgments in Fediol v Commission , EU:C:1989:254, paragraphs 19 to 23; Nakajima v Council , EU:C:1991:186, paragraphs 29 to 32; Germany v Council , C‑280/93, EU:C:1994:367, paragraph 111; and Italy v Council , C‑352/96, EU:C:1998:531, paragraph 19).
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19 It should be recalled that the Court has certainly held, on several occasions, that various GATT provisions were not capable of conferring on citizens of the Community rights which they can invoke before the courts ( judgments of 12 December 1972 in Joined Cases 21 to 24/72 International Fruit Company (( 1972 )) ECR 1219; 24 October 1973 in Case 9/73 Schlueter (( 1973 )) ECR 1135; 16 March 1983 in Case 266/81 SIOT (( 1983 )) ECR 731; and 16 March 1983 in Joined Cases 267 to 269/81 SPI and SAMI (( 1983 )) ECR 801 ). Nevertheless, it cannot be inferred from those judgments that citizens may not, in proceedings before the Court, rely on the provisions of GATT in order to obtain a ruling on whether conduct criticized in a complaint lodged under Article 3 of Regulation No 2641/84 constitutes an illicit commercial practice within the meaning of that regulation . The GATT provisions form part of the rules of international law to which Article 2(1 ) of that regulation refers, as is borne out by the second and fourth recitals in its preamble, read together .
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33. Such buildings made of structures fixed to or in the ground must be regarded as immovable property. In that connection, it is significant that the structures cannot be easily dismantled or easily moved but, contrary to the German Government's submission, there is no need for them to be inseverably fixed to or in the ground. Nor is the term of the lease decisive for the purpose of determining whether the buildings at issue are movable or immovable property.
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213. In order to determine whether a breach of Community law is sufficiently serious, it is necessary to take account of all the factors which characterise the situation brought before the national court. Those factors include, in particular, the clarity and precision of the rule infringed, whether the infringement and the damage caused were intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by a Community institution may have contributed towards the adoption or maintenance of national measures or practices contrary to Community law ( Brasserie du Pêcheur and Factortame , paragraph 56, and Haim , paragraphs 42 and 43).
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56. The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law.
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17 In order to reply to this question, it is important to remember the context in which it was decided to limit the effects in time of the Barber judgment.
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10 In that regard the Court has consistently held that it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court. A request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action (see, among others, the judgments in Case C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785, paragraphs 25 and 26, and Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others [1994] ECR I-1711, paragraph 17). However, that is not the position in this case.
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17 Regulation No 17 also conferred on the Commission a far-reaching power of investigation and verification, stating, in the eighth recital, that the Commission must be empowered, throughout the common market, to require such information to be supplied and to undertake such investigations as are necessary to bring to light any infringements of Articles 85 and 86 of the Treaty (Case 347/87 Orkem v Commission [1989] ECR 3283, paragraph 15).
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33. With regard to the sanction adopted in the main proceedings, the exclusion of Mr Gambazzi from any participation in the proceedings, that is, as the Advocate General stated in point 67 of her Opinion, the most serious restriction possible on the rights of the defence. Consequently, such a restriction must satisfy very exacting requirements if it is not to be regarded as a manifest and disproportionate infringement of those rights.
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44 In CIRFS and Others v Commission, cited above, the Comité International de la Rayonne et des Fibres Synthétiques (International Rayon and Synthetic Fibres Committee) had been the Commission's interlocutor with regard to aid in the synthetic fibre industry and also to its extension and adaptation and had actively pursued negotiations with the Commission during the pre-litigation procedure, in particular by submitting written observations to it and by keeping in close contact with the responsible departments.
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21 ALTHOUGH THE LANDBOUWSCHAP CANNOT BE CONSIDERED TO BE DIRECTLY AND INDIVIDUALLY CONCERNED BY DECISION 85/215 AS A RECIPIENT OF THE CONTESTED AID, IT IS NONE THE LESS TRUE THAT, AS THE LANDBOUWSCHAP RIGHTLY ARGUES, ITS POSITION AS NEGOTIATOR OF GAS TARIFFS IN THE INTERESTS OF THE GROWERS IS AFFECTED BY DECISION 85/215 .
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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134. The essence of effective judicial protection must be that it should enable the person concerned to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is retroactively erased from the legal order and is deemed never to have existed, that the listing of his name, or the continued listing of his name, on the list concerned was vitiated by illegality, the recognition of which may re‑establish the reputation of that person or constitute for him a form of reparation for the non-material harm he has suffered (see, to that effect, Abdulrahim v Council and Commission , paragraphs 67 to 84).
– The errors of law affecting the judgment under appeal
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71. As the Advocate General has observed in points 61 to 67 of his Opinion, the interest of an applicant such as Mr Abdulrahim in bringing proceedings is retained, despite the removal of his name from the list at issue, for the purpose of having the Courts of the European Union recognise that he should never have been included on the list or that he should not have been included under the procedure which was adopted by the European Union institutions.
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42. It follows from the foregoing that Community law, in particular the provisions of the First and Sixth Directives and the principles of fiscal neutrality and proportionality, contains no specific obligation for Member States to permit taxable persons to round down per item the amount of VAT.
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37. It must be pointed out in that regard that, in the absence of Community rules on applications for the repayment of taxes, it is for the domestic legal system of each Member State to lay down the conditions under which such applications may be made; those conditions must observe the principles of equivalence and effectiveness, that is to say, they must not be less favourable than those relating to similar claims founded on provisions of domestic law or framed so as to render virtually impossible the exercise of rights conferred by the Community legal order (see, inter alia, Case C‑30/02 Recheio – Cash & Carry [2004] ECR I‑6051, paragraph 17, and Case C‑291/03 MyTravel [2005] ECR I‑8477, paragraph 17).
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17. A judgment delivered on a reference for a preliminary ruling is such as to have effects on legal relationships which arose before its delivery. It follows, in particular, that a rule of Community law so interpreted must be applied by an administrative body within the sphere of its competence even to legal relationships which arose and were formed before delivery of the Court’s judgment ruling on the question referred to it (see, to this effect, Kühne & Heitz , cited above, paragraph 22). In the absence of Community rules on applications for the repayment of taxes, it is for the domestic legal system of each Member State to lay down the conditions under which such applications may be made; those conditions must observe the principles of equivalence and effectiveness, that is to say, they must not be less favourable than those relating to similar claims founded on provisions of domestic law or framed so as to render virtually impossible the exercise of rights conferred by the Community legal order (see, to this effect, Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12, and Case C-147/01 Weber’s Wine World and Others [2003] ECR I-11365, paragraph 103).
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40 Article 6(4) of Regulation No 859/89 provides that bone-in meat is to be wrapped in polyethylene or polypropylene suitable for wrapping foodstuffs and in cotton (stockinettes) or a synthetic material sufficiently resistant, in such a way that the meat is entirely covered by the said wrappings.
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34. As the Court has previously held, those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the general principles of that law, in particular the principle of proportionality ( Baumbast and R , paragraph 91).
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91 However, those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the general principles of that law, in particular the principle of proportionality. That means that national measures adopted on that subject must be necessary and appropriate to attain the objective pursued (see, to that effect, Joined Cases C-259/91, C-331/91 and C-332/91 Alluè and Others [1993] ECR I-4309, paragraph 15).
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75 In those circumstances, the Member State's liability for breach of Article 7 of the Directive cannot be precluded by imprudent conduct on the part of the travel organiser or by the occurrence of exceptional and unforeseeable events.
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28. As a preliminary point, it must be recalled that the Court has consistently held that Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against service providers who are established in another Member State, but also the abolition of any restriction on the freedom to provide services, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of service providers from other Member States who lawfully provide similar services in their Member State of origin (see, to that effect, Case C‑76/90 Säger [1991] ECR I‑4221, paragraph 12; Case C‑279/00 Commission v Italy [2002] ECR I‑1425, paragraph 31; Case C‑131/01 Commission v Italy [2003] ECR I‑1659, paragraph 26; Case C‑244/04 Commission v Germany [2006] ECR I‑885, paragraph 30; and Case C‑255/04 Commission v France [2006] ECR I‑0000, paragraph 37).
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30. At the outset, it must be recalled that it is settled case-law that Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against service providers who are established in another Member State, but also the abolition of any restriction, even if it applies withou t distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State, where he lawfully provides similar services (see, in particular, Case C‑164/99 Portugaia Construções [2002] ECR I‑787, paragraph 16).
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34. That conclusion is supported by the objective pursued by the legislation in which the concept of fair compensation appears.
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49. As regards the objective criteria that may indicate the existence of a cross-border interest, the Court has already held that such criteria may be, in particular, that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out or the technical characteristics of the market (see judgments in SECAP and Santorso , EU:C:2008:277, paragraph 31, and Belgacom , C‑221/12, EU:C:2013:736, paragraph 29). The referring court may, in its overall assessment of the existence of certain cross-border interest also take account of the existence of complaints brought by operators situated in other Member States, provided that it is determined that those complaints are real and not fictitious. More particularly, as regards ambulance services, the Court has held, in an action for failure to fulfil obligations, that certain cross-border interest cannot be established solely on the basis of the fact that several operators in other Member States had lodged a complaint with the European Commission and that the contracts concerned were of significant economic value (see, to that effect, judgment in Commission v Germany , C‑160/08, EU:C:2010:230, paragraph 18, 27 et seq., 54 and 123).
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18. The Commission received a number of complaints from, inter alia, undertakings established in Member States other than the Federal Republic of Germany concerning the award of contracts for public ambulance services in the Federal Republic of Germany.
General background
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41
In accordance with the Court’s case-law, the concept of ‘unlawful removal from customs supervision’, appearing in Article 203(1) of the Customs Code, must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code (see judgments of 1 February 2001, D. Wandel, C‑66/99, EU:C:2001:69, paragraph 47, and of 12 June 2014, SEK Zollagentur, C‑75/13, EU:C:2014:1759, paragraph 28 and the case-law cited).
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44. In that regard, it follows from the case‑law that the measures prohibited by Article 73b(1) of the Treaty, as being restrictions on the movement of capital, include those which are likely to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents to do so in other States or, in the case of inheritances, those whose effect is to reduce the value of the inheritance of a resident of a State other than the Member State in which the assets concerned are situated and which taxes the inheritance of those assets (see to that effect Case C‑484/93 Svensson and Gustavsson [1995] ECR I‑3955, paragraph 10; Trummer and Mayer , paragraph 26; Case C‑439/97 Sandoz [1999] ECR I‑7041, paragraph 19; and Barbier , paragraph 62).
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26 The effect of national rules such as those at issue in the main proceedings is to weaken the link between the debt to be secured, payable in the currency of another Member State, and the mortgage, whose value may, as a result of subsequent currency exchange fluctuations, come to be lower than that of the debt to be secured. This can only reduce the effectiveness of such a security, and thus its attractiveness. Consequently, those rules are liable to dissuade the parties concerned from denominating a debt in the currency of another Member State, and may thus deprive them of a right which constitutes a component element of the free movement of capital and payments (see, in relation to Article 106(1) of the EEC Treaty, Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 28, and Case 308/86 Lambert [1988] ECR 4369, paragraph 16).
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96. Il résulte du système de contrôle préventif en matière d’aides d’État exercé par la Commission et, notamment, de l’interdiction de mise en œuvre des aides nouvelles avant qu’une décision finale n’ait été adoptée par la Commission, en vertu de l’article 88, paragraphe 3, dernière phrase, CE, que l’existence d’une décision de la Commission se prononçant sur la compatibilité d’une telle aide ne saurait faire aucun doute.
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21
In order to answer that question, it must be recalled, as a preliminary point, that, according to settled case-law, the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (judgments of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU;C:2014:2067, paragraph 31 and the case-law cited, and of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 83).
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83
In order to answer that question, it must be recalled, as a preliminary point, that, according to settled case-law, the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (judgment in Impresa Pizzarotti , C‑213/13, EU;C:2014:2067, paragraph 31 and the case-law cited).
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36. Even though the national legislation is not specifically directed at non-residents, the latter are more likely to own a home outside Germany than resident citizens.
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81
Thus, it is following a schematic interpretation of the relevant EU rules that the Court of Justice interpreted those rules as meaning that, as from 2000, the Commission is required to comply with a legal time limit when adopting a decision on financial corrections (see judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 56 to 82, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 56 to 82).
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72. The same applies to Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ 2013 L 347, p. 320). Article 145(6) of that regulation provides that ‘[i]n order to apply financial corrections the Commission shall take a decision, by means of implementing acts, within six months of the date of the hearing, or of the date of receipt of additional information where the Member State agrees to submit such additional information following the hearing. The Commission shall take account of all information and observations submitted during the course of the procedure. If no hearing takes place, the six month period shall begin to run two months after the date of the letter of invitation to the hearing sent by the Commission’.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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30 In view of that argument it should be noted, first, that the specific subject-matter of trade-mark rights consists in protecting the proprietor of the mark against a risk of confusion such as to allow third persons to take unlawful advantage of the reputation of the proprietor' s goods (judgments in Case 16/74 Centrafarm v Winthrop [1974] ECR 1183 at paragraph 8 and in Case C-10/89 HAG GF ("HAG II") [1990] ECR I-3711 at paragraph 14).
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14 Consequently, as the Court has ruled on numerous occasions, the specific subject-matter of trade marks is in particular to guarantee to the proprietor of the trade mark that he has the right to use that trade mark for the purpose of putting a product into circulation for the first time and therefore to protect him against competitors wishing to take advantage of the status and reputation of the trade mark by selling products illegally bearing that mark . In order to determine the exact scope of this right exclusively conferred on the owner of the trade mark, regard must be had to the essential function of the trade mark, which is to guarantee the identity of the origin of the marked product to the consumer or ultimate user by enabling him without any possibility of confusion to distinguish that product from products which have another origin ( see, in particular, the judgments in Case 102/77 Hoffmann-La Roche v Centrafarm [1978] ECR 1139, paragraph 7, and in Case 3/78 Centrafarm v American Home Products Corporation [1978] ECR 1823, paragraphs 11 and 12 ).
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21. As pointed out by the Advocate General in point 31 of his Opinion, the system of administrative cooperation provided for in the Protocol is based on a division of responsibilities together with mutual trust between the authorities of the Member State concerned and those of the Republic of Hungary.
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26. It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, in particular, Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 10, and Case C-228/00 Commission v Germany [2003] ECR I-4139, paragraph 25).
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10 It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, in particular, Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23).
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50. By contrast, terms ancillary to those that define the very essence of the contractual relationship cannot fall within the notion of the ‘main subject-matter of the contract’ within the meaning of Article 4(2) of Directive 93/13.
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69
Those principles and that obligation require, in particular, that the subject matter and the award criteria for the contract concerned are clearly determined from the beginning of the award procedure for that contract and that the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the bids submitted satisfy the criteria applying to the contract in question (see, to that effect, judgments of 10 May 2012, Commission v Netherlands, C‑368/10, EU:C:2012:284, paragraphs 56, 88 and 109; of 6 November 2014, Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 44; and of 14 July 2016, TNS Dimarso, C‑6/15, EU:C:2016:555, paragraph 23). The obligation of transparency also means that the subject matter and the award criteria must be adequately publicised by the contracting authorities (see, to that effect, judgment of 24 January 2008, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraph 40).
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40. To that end, tenderers must be placed on an equal footing throughout the procedure, which means that the criteria and conditions governing each contract must be adequately publicised by the contracting authorities (see, to that effect, in relation to public works contracts, Beentjes , paragraph 21, and SIAC Construction , paragraphs 32 and 34; also, in relation to public service contracts, ATI EAC and Others , paragraph 22).
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30. In the second place, in the case of the amendments made in 1998, the legislation at issue applies only where the two companies in question are subject to common control in the sense that one of them participates directly or indirectly in the management, control or capital or the other company concerned or a third party participates directly or indirectly in the management, control or capital of both the other companies concerned.
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26. It has consistently been held that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see in particular Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59; Case C‑379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; Case C-153/00 Der Weduwe [2002] ECR I-11319, paragraph 31; and Case C‑318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I-905, paragraph 40).
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38 It should remembered that it is settled law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 177 of the Treaty it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59).
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30. Since the wording of Regulation No 1103/97 offers no further guidance, it is appropriate to refer to the objectives of the regulation.
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34. With regard to the first condition, it is clear from established case-law that there is no need to draw any distinction according to whether the aid is granted directly by the State or by public or private bodies established or appointed by that State (Case 57/86 Greece v Commission [1988] ECR 2855, paragraph 12, PreussenElektra , paragraph 58, and Case C-126/91 GEMO [2003] ECR I-0000, paragraph 23).
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23. First, according to settled case-law, it is not appropriate to distinguish between cases in which aid is granted directly by the State and those in which it is granted by a public or private body designated or established by that State (see Case 57/86 Greece v Commission [1988] ECR 2855, paragraph 12, and Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 58).
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49
In the third place, Section IV of Chapter VI of Regulation No 604/2013, entitled ‘Procedural safeguards’, sets out at considerable length the arrangements for the notification of transfer decisions and the rules governing the remedies available in respect of such decisions, matters which were not covered with the same degree of detail in Regulation No 343/2003.
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26
In that respect, it must be recalled that it is settled case-law that a person seeking employment who has never been subject to the social security legislation of the Member State in which he claims unemployment benefits and thus has not completed, lastly, periods of insurance or of employment in accordance with the provisions of the legislation of that Member State cannot be entitled to unemployment benefits under Article 67 of Regulation No 1408/71 (see judgments in van Noorden, C‑272/90, EU:C:1991:219, paragraph 10; Martínez Losada and Others, C‑88/95, C‑102/95 and C‑103/95, EU:C:1997:69, paragraph 36; and the order in Verwayen-Boelen, C‑175/00, EU:C:2002:133, paragraph 26).
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10 It follows from those provisions that a person seeking employment who has never been subject to the social security legislation of the Member State in which he claims unemployment benefits and thus has not completed, lastly, periods of insurance or of employment in accordance with the provisions of the legislation of that Member State, cannot be entitled to unemployment benefits under Article 67 of Regulation No 1408/71 but only by virtue of Article 69 of the same regulation.
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40. In that regard, it should be observed, as the Netherlands Government has done, that there may well be commercial placement agencies whose services are not exempt and whose activities include the supply of teaching staff to schools or universities. In the main proceedings, for the supply of teachers by Horizon College to be regarded as essential to the education provided by the host establishments, it would have to be of a nature such that – owing, for example, to the qualifications of the staff in question or the flexibility of the terms of their supply – the same level and quality of teaching could not be assured simply by turning to such placement agencies.
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19. According to settled case-law, a benefit may be regarded as a social security benefit in so far as it is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Case C‑286/03 Hosse [2006] ECR I-1771, paragraph 37, and Joined Cases C‑396/05, C‑419/05 and C‑450/05 Habelt and Others [2007] ECR I‑11895, paragraph 63).
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63. A benefit may be regarded as a social security benefit in so far as it is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Case C-286/03 Hosse [2006] ECR I-1771, paragraph 37).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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23. As the Court has held, it results from the wording of that provision that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time-limits to which such submission is subject under the provisions of Regulation No 40/94 and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced late ( OHIM v Kaul , paragraph 42, and Case C‑621/11 P New Yorker SHK Jeans v OHIM [2013] ECR I‑0000, paragraph 22).
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42. Contrary to OHIM’s submission, it results from such wording that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time‑limits to which such submission is subject under the provisions of Regulation No 40/94 and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced late.
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24. It should be remembered that the Convention must be interpreted independently, by reference to its system and objectives (see, in particular, Case C-89/91 Shearson Lehman Hutton [1993] ECR I-139, paragraph 13; Case C-295/95 Farrell [1997] ECR I-1683, paragraphs 12 and 13; Case C-269/95 Benincasa [1997] ECR I-3767, paragraph 12, and Baten , cited above, paragraph 28).
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53 The Court has already held that the system whereby movement certificates are regarded as evidence of the origin of products is founded on the principle of mutual reliance and cooperation between the competent authorities of the exporting State and those of the importing State. A system of that kind cannot therefore function properly unless the procedures for administrative cooperation are strictly complied with (see, to that effect, Case C-432/92 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Anastasiou and Others [1994] ECR I-3087, paragraphs 38 and 40).
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38 The system whereby movement certificates are regarded as evidence of the origin of products is founded on the principle of mutual reliance and cooperation between the competent authorities of the exporting State and those of the importing State (Les Rapides Savoyards and Others and Huygen and Others, cited above).
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55. In the case of a measure intended to have general application, as here, the preamble may be limited to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other ( Spain v Council , paragraph 28, and Netherlands v Council , paragraph 189).
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30. In order to reply to that question, it should be recalled that, in Case C‑473/00 Cofidis [2002] ECR‑10875, paragraph 34, the Court has held that the protection which the Directive confers on consumers extends to cases in which a consumer who has concluded with a seller or supplier a contract containing an unfair term fails to raise the unfairness of the term, whether because he is unaware of his rights or because he is deterred from enforcing them on account of the costs which judicial proceedings would involve.
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34 The protection which the Directive confers on consumers thus extends to cases in which a consumer who has concluded with a seller or supplier a contract containing an unfair term fails to raise the unfair nature of the term, whether because he is unaware of his rights or because he is deterred from enforcing them on account of the costs which judicial proceedings would involve.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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64. In those circumstances, and in accordance with settled case-law, to determine whether vitamin preparations or preparations containing minerals should be classified as medicinal products within the meaning of Directive 65/65, the national authorities, acting under the control of the court, must work on a case-by-case basis, having regard to all of their characteristics, in particular their composition, their pharmacological properties – to the extent to which they can be established in the present state of scientific knowledge –, the manner in which they are used, the extent of their distribution, their familiarity to consumers and the risks which their use may entail (see, inter alia, Van Bennekom , paragraph 29; Case C-60/89 Monteil and Samanni [1991] ECR I-1547, paragraph 29; Case C‑112/89 Upjohn [1991] ECR I-1703, paragraph 23; and Commission v Germany , paragraph 17).
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23 It is for the national courts to determine on a case-by-case basis the classification of each product having regard to its pharmacological properties as they may be ascertained in the current state of scientific knowledge, to the way in which it is used, to the extent to which it is sold and to consumers' familiarity with it.
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39
The directive lays down a single Community model driving licence designed to replace the various driving licences in existence in the Member States (judgments of 26 April 2012, Hofmann, C‑419/10, EU:C:2012:240, paragraph 40, and of 26 April 2017, Popescu, C‑632/15, EU:C:2017:303, paragraph 36).
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45. Nevertheless, in exercising their powers, the Member States must observe the general principles of law that form part of the European Union legal order, which include, in particular, the principles of legal certainty and proportionality and the principle of protection of legitimate expectations (see, to that effect, Joined Cases C‑286/94, C‑340/95, C‑401/95 and C‑47/96 Molenheide and Others [1997] ECR I‑7281, paragraph 48; Case C‑384/04 Federation of Technological Industries and Others [2006] ECR I‑4191, paragraphs 29 and 30; and Case C‑271/06 Netto Supermarkt [2008] ECR I‑771, paragraph 18). As regards, in particular, the principle of proportionality, the Court has already held that, in accordance with that principle, the measures which the Member States may thus adopt must not go further than is necessary to attain the objectives of ensuring the correct levying and collection of the tax and the prevention of tax evasion (see, in particular, Case C‑188/09 Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski [2010] ECR I‑0000, paragraph 26).
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30. With more particular regard to the principle of proportionality, it must be pointed out that, whilst it is legitimate for the measures adopted by the Member State, on the basis of Article 21(3) of the Sixth Directive, to seek to preserve the rights of the public exchequer as effectively as possible, such measures must not go further than is necessary for that purpose (see, to that effect, Molenheide and Others , paragraph 47).
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Cela étant, dans le cas où il est manifeste, sans que soit nécessaire la production par les parties d’éléments supplémentaires
à cet égard, que le Tribunal a violé de manière suffisamment caractérisée son obligation de juger l’affaire dans un délai
raisonnable, la Cour peut le relever (arrêt du 9 juin 2016, Repsol Lubricantes y Especialidades e.a./Commission, C‑617/13 P,
EU:C:2016:416, point 100 et jurisprudence citée).
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104. However, the retail sale licence requirement at issue in the main proceedings does not meet the first condition set out by the Court in Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 16), according to which the national provisions at issue must apply to all relevant traders operating within the national territory.
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16 By contrast, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
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19 THE RULES ON GRADE AND STEP CLASSIFICATION SET OUT IN ARTICLES 31 AND 32 OF THE STAFF REGULATIONS LAY DOWN THE PRINCIPLE THAT CANDIDATES APPOINTED OFFICIALS IN CATEGORY A OR IN THE LANGUAGE SERVICE ARE RECRUITED IN THE STARTING GRADE OF THEIR CATEGORY OR SERVICE AND CLASSIFIED IN THE FIRST STEP OF THEIR GRADE . HOWEVER , THOSE TWO ARTICLES ALLOW THE APPOINTING AUTHORITY TO MAKE EXCEPTIONS TO THOSE RULES , TAKING ACCOUNT OF THE EXPERIENCE OF THE PERSONS CONCERNED , PROVIDED THAT IT IS SUFFICIENTLY ' ' SPECIFIC ' ' IN RELATION TO THE VACANT POST .
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46. It is also important to note that the last processing or working is ‘substantial’, for the purposes of Article 24 of the Customs Code, only if the product resulting therefrom has its own specific properties and composition, which it did not possess before that process or operation. Activities altering the presentation o f a product for the purposes of its use, but which do not bring about a significant qualitative change in its properties, are not of such a nature as to determine the origin of that product (see Gesellschaft für Überseehandel , paragraph 6; Case 93/83 Zentrag [1984] ECR 1095, paragraph 13; and HEKO Industrieerzeugnisse , paragraph 28).
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13 IN THIS CONNECTION , IT SHOULD BE BORNE IN MIND THAT , AS THE COURT STATED IN ITS JUDGMENT OF 26 JANUARY 1977 IN CASE 49/76 GESELLSCHAFT FUR UBERSEEHANDEL ( 1977 ) ECR 41 , THE LAST PROCESS OR OPERATION REFERRED TO IN ARTICLE 5 OF THE REGULATION IS ONLY ' ' SUBSTANTIAL ' ' FOR THE PURPOSES OF THAT PROVISION IF THE PRODUCT RESULTING THEREFROM HAS ITS OWN PROPERTIES AND A COMPOSITION OF ITS OWN , WHICH IT DID NOT POSSESS BEFORE THAT PROCESS OR OPERATION . ACTIVITIES ALTERING THE PRESENTATION OF A PRODUCT FOR THE PURPOSES OF ITS USE , BUT WHICH DO NOT BRING ABOUT A SIGNIFICANT QUALITATIVE CHANGE IN ITS PROPERTIES , ARE NOT OF SUCH A NATURE AS TO DETERMINE THE ORIGIN OF THE SAID PRODUCT .
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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50. Lastly, it must be pointed out that the objective of Article 2(1) of the implementing regulation is to ensure diligent and uniform application of the provisions relating to the recovery of duties and taxes in order to secure rapid and effective availability of the Communities’ own resources (see Case C-312/04 Commission v Netherlands , paragraph 54, and, by analogy, Case C-460/01 Commission v Netherlands , paragraph 60).
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60. Although in Case C-112/01 SPKR [2002] ECR I‑10655, paragraph 40, the Court held that non-compliance with the 11-month time-limit does not by itself prevent recovery of the customs debt from the principal, it also stated, at paragraph 34 of the same judgment, that that time-limit is directed at administrative authorities and has as its objective to ensure diligent uniform application, by those authorities, of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Community’s own resources. Accordingly, as acknowledged moreover by the Netherlands Government, compliance with the 11-month time-limit, although it does not have any effect on whether the customs debt is owed, is nevertheless mandatory for the Member States in respect of their Community obligations relating to the making available of Community own resources.
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25. A breach of the principle of equal treatment as a result of different treatment presumes that the situations concerned are comparable, having regard to all the elements which characterise them.
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37. Second, where, in a plant whose main purpose is to produce material products, in this case, gas products, waste is thermally treated in order to dispose of it, such a plant must be classified as a co-incineration plant in accordance with the scheme of Article 3(4) and (5) of Directive 2000/76 which makes the classification of a unit as an incineration or co-incineration plant dependent on its main purpose (see, to that effect, Gävle Kraftvärme , paragraph 40).
The classification of the power plant
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40. Such an interpretation cannot, however, be accepted. Firstly, it conflicts with the clear wording of Directive 2000/76. As the Commission pointed out in its observations before the Court, it is apparent from the express wording of Article 3(5) of that directive that it is on the basis of their main purpose that co-incineration plants are to be distinguished from incineration plants. However, that provision does not specify any criterion with regard to the purpose for which the plant was built.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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29. Vitamins and minerals are not as a general rule harmful in themselves but may have special harmful effects if taken to excess as part of the general nutrition, the composition of which cannot be foreseen or monitored (see, with respect to vitamins, Case 174/82 Sandoz [1983] ECR 2445, paragraph 17; Case C-192/01 Commission v Denmark [2003] ECR I‑9693, paragraph 43; and Case C‑24/00 Commission v France [2004] ECR II‑0000, paragraph 50).
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50. That discretion relating to the protection of public health is particularly wide where it is shown that there is still uncertainty in the current state of scientific research as to certain substances, such as vitamins, which are not as a general rule harmful in themselves but may have special harmful effects solely if taken to excess as part of the general diet, the composition of which cannot be foreseen or monitored (see Sandoz , paragraph 17, and Commission v Denmark , paragraph 43).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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77
According to that case-law, an infringement of the provision in question is deemed to exist where the Commission establishes that there is a probability or risk that a project will cause deterioration to the habitats of protected species of birds or cause significant disturbance to those species (judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraph 70).
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70
According to that case-law, and as is apparent from paragraph 58 of the present judgment, breach of the provision in question is to be deemed to exist where the Commission establishes that there is a probability or risk that a project will cause deterioration to the habitats of protected species of birds or cause significant disturbance to those species.
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47. As regards the principle of equivalence, it does not appear from the file, nor has it been argued before the Court, that the limitation period provided for in Article 19(1) of the DPR No 633/72 does not comply with that principle.
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77 It should be borne in mind that, in the context of competition law, the Court has held that the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed (see, in particular, Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Poucet and Pistre, cited above, paragraph 17; and Fédération Française des Sociétés d'Assurance, cited above, paragraph 14).
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17 The Court has held (in particular in Case C-41/90 Hoefner v Elser [1991] ECR I-1979, paragraph 21) that in the context of competition law the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed.
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42. With regard to issue of the residence card referred to by Directive 2004/38, the European Union legislature essentially confined itself to listing, in Article 10 of that directive, the documents to be presented in order to obtain such a card, which is then to be furnished within six months from the date on which the application was submitted.
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51. In the second place, it is also clear from the Court’s case-law that neither the legal context of the employment relationship under national law, in the framework of which the vocational training or internship is carried out, nor the origin of the funds from which the person concerned is remunerated and, in particular, in the present case, the funding of that remuneration through public grants, can have any consequence in regard to whether or not the person is to be regarded as a worker (see, to that effect, inter alia, judgments in Bettray , 344/87, EU:C:1989:226, paragraphs 15 and 16; Birden , C‑1/97, EU:C:1998:568, paragraph 28, and Kurz , C‑188/00, EU:C:2002:694, point 34).
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16 Nor can the person cease to be regarded as a worker merely by virtue of the fact that the employment relationship under the Social Employment Law is of a sui generis nature in national law . As the Court has held ( see, primarily, the judgment of 12 February 1974 in Case 152/73 Sotgiu v Deutsches Bundespost (( 1974 )) ECR 153 ), the nature of the legal relationship between the employee and the employer is of no consequence in regard to the application of Article 48 of the Treaty .
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19 IT FOLLOWS FROM THE FOREGOING THAT THE ANSWER TO THE FIRST QUESTION MUST BE THAT A DUTY FALLING WITHIN A GENERAL SYSTEM OF INTERNAL TAXATION APPLYING TO DOMESTIC PRODUCTS AS WELL AS TO IMPORTED PRODUCTS ACCORDING TO THE SAME CRITERIA CAN CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON IMPORTS ONLY IF IT HAS THE SOLE PURPOSE OF FINANCING ACTIVITIES FOR THE SPECIFIC ADVANTAGE OF THE TAXED DOMESTIC PRODUCT ; IF THE TAXED PRODUCT AND THE DOMESTIC PRODUCT BENEFITING FROM IT ARE THE SAME ; AND IF THE CHARGES IMPOSED ON THE DOMESTIC PRODUCT ARE MADE GOOD IN FULL .
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55. Furthermore, the Court has held that a court which is not ruling at final instance must be free, if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to European Union law, to refer to the Court questions which concern it (see Elchinov , paragraph 27 and the case‑law cited).
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27. The Court has thus concluded that a rule of national law, pursuant to which courts that are not adjudicating at final instance are bound by legal rulings of a higher court, cannot take away from those courts the discretion to refer to the Court questions of interpretation of the point of European Union law concerned by such legal rulings. The Court has held that a court which is not ruling at final instance must be free, if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to European Union law, to refer to the Court questions which concern it (see, to that effect, Rheinmühlen-Düsseldorf , paragraphs 4 and 5; Cartesio , paragraph 94; Case C‑378/08 ERG and Others [2010] ECR I‑0000, paragraph 32; and Melki and Abdeli , paragraph 42).
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36. Furthermore, as Shield Mark, the intervening Governments and the Commission have stated, sound signs are not by nature incapable of distinguishing the goods or services of one undertaking from those of other undertakings.
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19. Furthermore, given the nature and significance of the public interest which constitutes the basis of the protection guaranteed to consumers, who are in such a weak position, Article 7(1) of Directive 93/13 requires Member States to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers (judgment in Banco Español de Crédito , C‑618/10, EU:C:2012:349, paragraph 68; Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 78; and Unicaja Banco and Caixabank , C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 30).
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68. Thus, given the nature and significance of the public interest which constitutes the basis of the protection guaranteed to consumers, who are in a weak position vis-à-vis sellers or suppliers, Directive 93/13 requires Member States, as is apparent from Article 7(1) thereof, read in conjunction with the twenty-fourth recital in the preamble thereto, to provide for adequate and effective means ‘to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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63
In this connection, the Court has already held that there are very specific situations in which, despite the fact that secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus depriving him of the genuine enjoyment of the substance of the rights conferred by that status (see, to that effect, judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraphs 43 and 44; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraphs 66 and 67; of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 74; and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 29).
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29
In this connection, the Court has already held that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of his since the effectiveness of citizenship of the Union would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus denying him the genuine enjoyment of the substance of the rights conferred by virtue of his status (see, to this effect, judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraphs 43 and 44; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraphs 66 and 67; of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 71; of 8 May 2013, Ymeraga and Others, C‑87/12, EU:C:2013:291, paragraph 36; and of 10 October 2013, Alokpa and Moudoulou, C‑86/12, EU:C:2013:645, paragraph 32).
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50. It is at the end of each period to which the payments relate that the supply must be regarded as having been completed for the purposes of Article 64(1) of the VAT Directive. Since the chargeable event and the chargeability of the tax depend on the moment when the service is supplied, in accordance with Article 63 of that directive, it follows that it is also at the end of each of those periods that that event and that chargeability occur.
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20 It is indeed correct that, in accordance with settled case-law, a directive may not of itself impose obligations on a private individual and may not therefore be relied on as such against such a person (see, inter alia, Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 20, and Case C-192/94 El Corte Inglés v Blázquez Rivero [1996] ECR I-1281, paragraph 15).
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20 As the Court has consistently held since its judgment in Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority [1986] ECR 723, paragraph 48, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual.
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21 The social character of the FNE assistance is not therefore sufficient to exclude it outright from being categorized as aid for the purposes of Article 92 of the Treaty.
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34. The review provided for by the Treaties means that the European Union courts carry out an in-depth review of the law and of the facts on the basis of the evidence adduced by the applicant in support of the pleas in law put forward (see, to that effect, judgments in Chalkor v Commission , C‑386/10 P, EU:C:2011:815, paragraph 62, and CB v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 44).
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62. Furthermore, the Courts must carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s margin of discretion – either as regards the choice of factors taken into account in the application of the criteria mentioned in the Guidelines or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.
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25 As the Court stated in paragraph 41 of the decision in Offermanns, above, the expression `to meet family expenses' in Article 1(u)(i) of Regulation No 1408/71 which defines `family benefits' is to be interpreted as referring, in particular, to a public contribution to a family's budget to alleviate the financial burdens involved in the maintenance of children.
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57. On the other hand, those rights may be infringed where, during their placement under a suspensive procedure in the customs territory of the European Union, or even before their arrival in that territory, goods coming from non-member States are the subject of a commercial act directed at European Union consumers, such as a sale, offer for sale or advertising (see Class International , paragraph 61, and Case C‑324/09 L’Oréal and Others [2011] ECR I‑0000, paragraph 67).
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61. The answer to the second part of the first question and the fourth and fifth questions must therefore be that ‘offering’ and ‘putting on the market’, within the meaning of Article 5(3)(b) of the Directive and Article 9(2)(b) of the Regulation, may include, respectively, the offering and sale of original goods bearing a trade mark and having the customs status of non-Community goods, when the offering is done and/or the sale is effected while the goods are placed under the external transit procedure or the customs warehousing procedure. The trade mark proprietor may oppose the offering or the sale of such goods when it necessarily entails the putting of those goods on the market in the Community.
The onus of proof
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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39
The Court has already held that those objectives may be such as to justify restrictions of fundamental freedoms in the sector of games of chance. A certain number of overriding reasons in the public interest have been recognised by the case-law, such as the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gaming, as well as the general need to preserve public order (see, to that effect, judgment of 6 March 2007, Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 46).
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46. On that point, a certain number of reasons of overriding general interest have been recognised by the case-law, such as the objectives of consumer protection and the prevention of both fraud and incitement to squander on gaming, as well as the general need to preserve public order (see, to that effect, Case C‑275/92 Schindler [1994] ECR I‑1039, paragraphs 57 to 60; Case C‑124/97 Läärä and Others [1999] ECR I‑6067, paragraphs 32 and 33; Zenatti , paragraphs 30 and 31; and Gambelli and Others , paragraph 67).
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68. Having regard to the objective pursued by Directive 2003/109 and the system which it puts in place, it should be noted that, where the third-country nationals satisfy the conditions and comply with the procedures laid down in that directive, they have the right to obtain long-term resident status as well as the other rights which stem from the grant of that status.
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41 It must be borne in mind that, in themselves, Articles 85 and 86 of the Treaty are concerned solely with the conduct of undertakings and not with laws or regulations adopted by Member States. However, it is settled case-law that Articles 85 and 86, read in conjunction with Article 5 of the Treaty, require the Member States to refrain from introducing or maintaining in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see, in particular, Case C-96/94 Centro Servizi Spediporto v Spedizione Marittima del Golfo [1995] ECR I-2883, paragraph 20, and Joined Cases C-140/94, C-141/94 and C-142/94 DIP and Others v Comune di Bassano del Grappa and Comune di Chioggia [1995] ECR I-3257, paragraph 14).
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20 Articles 85 and 86 of the Treaty are, in themselves, concerned solely with the conduct of undertakings and not with laws or regulations adopted by Member States. However, it is settled law that Articles 85 and 86, read in conjunction with Article 5 of the Treaty, require the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (as to Article 85 of the Treaty, see the judgments in Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16; in Reiff, paragraph 14, and in Delta Schiffahrts- und Speditionsgesellschaft, paragraph 14; as to Article 86 of the Treaty, see the judgment in Case 13/77 GB-Inno-BM [1977] ECR 2115, paragraph 31).
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44. Moreover, it is apparent from the order for reference that the questions referred are based on the premisses, first, that the transaction relied on as a basis for the right to deduct was carried out, as is to be inferred from the corresponding invoice, and, second, that that invoice includes all the information required by Directive 2006/112, with the result that the substantive and formal conditions provided for by that directive for the creation and exercise of the right to deduct are fulfilled. It is necessary to point out, in particular, that the order for reference does not indicate that the applicant in the main proceedings himself acted unlawfully by, for instance, filing false returns or issuing improper invoices.
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36. Thus, as far as sales monopolies are concerned, the Court has held that monopolies are not allowed if they are arranged in such a way as to put at a disadvantage, in law or in fact, trade in goods from other Member States as compared with trade in domestic goods (see, to that effect, Franzén , paragraph 40).
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40 Thus, Article 37 requires that the organization and operation of the monopoly be arranged so as to exclude any discrimination between nationals of Member States as regards conditions of supply and outlets, so that trade in goods from other Member States is not put at a disadvantage, in law or in fact, in relation to that in domestic goods and that competition between the economies of the Member States is not distorted (see, to this effect, the judgment in Commission v Italy, cited above, paragraph 11).
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28
Consequently, the questions referred must be answered on the basis of that premiss, the accuracy of which it is, however, for the referring court to check.
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