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That restriction is permissible only if it relates to situations which are not objectively comparable or if it is justified by overriding reasons in the public interest recognised by EU law. It is further necessary, in such a case, that the restriction be appropriate for ensuring the attainment of the objective that it pursues and not go beyond what is necessary to attain it (judgment of 7 September 2017, Eqiom and Enka, C‑6/16, EU:C:2017:641, paragraph 57 and the case-law cited).
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57
That restriction is permissible only if it relates to situations which are not objectively comparable or if it is justified by overriding reasons in the public interest recognised by EU law. It is further necessary, in such a case, that the restriction be appropriate for ensuring the attainment of the objective that it pursues and not go beyond what is necessary to attain it (judgment of 17 December 2015, Timac Agro Deutschland, C‑388/14, EU:C:2015:829 paragraphs 26 and 29 and the case-law cited).
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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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86. The Court has already held that a national legislature may not, subsequent to a judgment of the Court from which it follows that certain legislation is incompatible with the Treaty, adopt a procedural rule which specifically reduces the possibilities of bringing proceedings for recovery of taxes which were levied though not due under that legislation (see Deville , paragraph 13; Dilexport , paragraphs 38 and 39; and Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 36).
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36 Moreover, it is clear from the judgments in Aprile (paragraph 28) and Dilexport (paragraphs 41 and 42) that national legislation curtailing the period within which recovery may be sought of sums charged in breach of Community law is, subject to certain conditions, compatible with Community law. First, it must not be intended specifically to limit the consequences of a judgment of the Court to the effect that national legislation concerning a specific tax is incompatible with Community law. Secondly, the time set for its application must be sufficient to ensure that the right to repayment is effective. In that connection, the Court has held that legislation which is not in fact retrospective in scope complies with that condition.
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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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26. It is clear from the Court’s settled case-law that, even though in proceedings for failure to fulfil obligations under Article 226 EC it is incumbent on the Commission to establish the existence of the failure it has alleged, Member States are nevertheless required, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular, according to Article 211 EC, in ensuring that the provisions of the EC Treaty and the measures taken by the institutions pursuant thereto are applied. When it is a question of checking whether the national provisions intended to ensure effective implementation of a directive are correctly applied in practice, the Commission is largely reliant on the information provided by the Member State concerned, and so that State cannot plead that there is a lack of specific information as to national law and practice put forward by the Commission and, therefore, the action is inadmissible (see Case C‑408/97 Commission v Netherlands , paragraphs 15 to 17, and case-law cited therein, and Case C‑248/05 Commission v Ireland [2007] ECR I‑00000, paragraphs 67 and 68, and case-law cited therein).
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16 However, it is also clear from the case-law of the Court that it is for the Member States, under Article 5 of the EC Treaty (now Article 10 EC) to facilitate the achievement of the Commission's tasks, which consist in particular, pursuant to Article 155 of the EC Treaty (now Article 211 EC), in ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied (Case 272/86 Commission v Greece [1988] ECR 4875, paragraph 30).
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26. It should be recalled, first of all, that in its definition of ‘international protection’, Directive 2004/83 refers to two separate systems of protection, namely the system governing refugee status and that relating to subsidiary protection status.
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60. It is therefore for the national authorities concerned to assess on a case-by-case basis the personal conduct of the offender and whether it constitutes a present, genuine and sufficiently serious threat to public policy and security, and those authorities are also required to observe both the principle of proportionality and the fundamental rights of the person concerned. In particular, a measure ordering expulsion based on Article 14(1) of Decision No 1/80 may be taken only if the personal conduct of the person concerned indicates a specific risk of new and serious prejudice to the requirements of public policy (see Derin , paragraph 74).
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74. Finally, with regard to a situation such as that in the main proceedings, in which a decision has been taken by the competent authorities of the host Member State to expel a Turkish national after his conviction there for several offences under national legislation, it must be pointed out that it is Article 14(1) of Decision 1/80 which establishes the relevant legal framework authorising the Member States to take the necessary measures. Those authorities are, however, obliged to assess the personal conduct of the offender and whether it constitutes a present, genuine and sufficiently serious threat to public policy and security, and in addition they must observe the principle of proportionality (see, to that effect, Nazli , paragraphs 57 to 61, and, by analogy, Case C-100/01 Oteiza Olazabal [2002] ECR I-10981, paragraphs 39, 43 and 44). In particular, a measure ordering expulsion based on Article 14(1) of that decision may be taken only if the personal conduct of the person concerned indicates a specific risk of new and serious prejudice to the requirements of public policy. Consequently, such a measure cannot be ordered automatically following a criminal conviction and with the aim of general deterrence (see Case C-383/03 Dogan [2005] ECR I-6237, paragraph 24).
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55. That argument cannot be accepted.
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36. The infringements referred to in Article 5(2) of Directive 89/104, where they occur, are the consequence of a certain degree of similarity between the mark and the sign, by virtue of which the relevant section of the public makes a connection between the sign and the mark, that is to say, establishes a link between them without confusing them. It is thus not necessary that the degree of similarity between the mark with a reputation and the sign used by the third party is such that there exists a likelihood of confusion between them on the part of the relevant section of the public. It is sufficient for the degree of similarity between the mark with a reputation and the sign to have the effect that the relevant section of the public establishes a link between the sign and the mark (see Adidas-Salomon and Adidas Benelux , paragraphs 29 and 31, and adidas and adidas Benelux , paragraph 41).
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41. The infringements referred to in Article 5(2) of the Directive, where they occur, are the consequence of a certain degree of similarity between the mark and the sign, by virtue of which the relevant section of the public makes a connection between the sign and the mark, that is to say, establishes a link between them even though it does not confuse them. It is not therefore necessary that the degree of similarity between the mark with a reputation and the sign used by the third party is such that there exists a likelihood of confusion between them on the part of the relevant section of the public. It is sufficient for the degree of similarity between the mark with a reputation and the sign to have the effect that the relevant section of the public establishes a link between the sign and the mark (see Adidas-Salomon and Adidas Benelux , paragraphs 29 and 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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35. Accordingly, where it is apparent that they are contrary to the wording of the headings of the CN and the section or chapter notes, the Explanatory Notes to the CN must be disregarded (see, to that effect, Case C‑229/06 Sunshine Deutschland Handelsgesellschaft [2007] ECR I‑3251, paragraph 31; Kamino International Logistics , paragraphs 49 and 50; and British Sky Broadcasting Group and Pace , paragraph 65).
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31. Therefore, the explanatory notes to the CN, which exclude pumpkin seeds from subheading 1212 99 80 and place them under heading 1209, can only be understood as meaning that those pumpkin seeds of a kind used for sowing alone are excluded, and not seeds, such as those in the present case, which have been shelled and have lost their ability to germinate. There is otherwise no need to take account of those explanatory notes, which include under subheading 1209 91 90 pumpkin seeds intended for human consumption or for the food industry.
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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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26
In order to answer that question, it should be recalled that respect for the rights of the defence is a general principle of EU law which is to be applied where the authorities are minded to adopt in respect of a person a measure that will adversely affect him. In accordance with that principle, the addressees of decisions that significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. The authorities of the Member States are subject to that obligation when they take decisions which come within the scope of EU law, even if the EU legislation applicable does not expressly provide for such a procedural requirement (judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 84 and the case-law cited).
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84. Nevertheless, observance of the rights of the defence is a general principle of EU law which applies where the authorities are minded to adopt in respect of a person a measure which will adversely affect him. In accordance with that principle, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. The authorities of the Member States are subject to that obligation when they take decisions which come within the scope of EU law, even if the EU legislation applicable does not expressly provide for such a procedural requirement (judgment in Sabou , C‑276/12, EU:C:2013:678, paragraph 38 and the case-law cited).
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7. À cet égard, il convient de rappeler que, selon une jurisprudence constante, un État membre ne saurait exciper de dispositions, de pratiques ou de situations de son ordre juridique interne pour justifier l’inobservation des obligations et des délais prescrits par une directive (arrêts du 13 juin 2002, Commission/France, C‑286/01, Rec. p. I‑5463, point 13, et du 28 juin 2007, Commission/Espagne, C‑235/04, Rec. p. I‑5415, point 55).
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46. With regard to the possibility of a female worker being dismissed by reason of a pregnancy-related illness which arose prior to her maternity leave, the Court has held that, although pregnancy is not in any way comparable to a pathological condition, it is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of her pregnancy. The Court found that those disorders and complications, which could cause incapacity for work, formed part of the risks inherent in the condition of pregnancy and were thus a specific feature of that condition (Case C‑394/96 Brown [1998] ECR I‑4185, paragraph 22).
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22 Although pregnancy is not in any way comparable to a pathological condition (Webb, cited above, paragraph 25), the fact remains, as the Advocate General stresses in point 56 of his Opinion, that pregnancy is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to rest absolutely 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.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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38. In order to determine the scope of the concept of ‘eliminating impurities’ within the meaning of Note 1 to Chapter 25 of the CN, which is the subject-matter of the first question, it is useful to turn to the Court’s settled case-law, in which it has been held that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, Case C-183/06 RUMA [2007] ECR I‑1559, paragraph 27; Joined Cases C-208/06 and C-209/06 2007 Medion and Canon Deutschland [2007] ECR I‑7963, paragraph 34; and Case C-568/11 Agroferm [2013] ECR, paragraph 27).
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34. First of all, that it is settled case-law that, in the interests of legal certainty and for ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and the notes to the sections or chapters (see, in particular, Case C‑42/99 Eru Portuguesa [2000] ECR I‑7691, paragraph 13; Case C‑500/04 Proxxon [2006] ECR I‑1545, paragraph 21; and Case C‑183/06 RUMA [2007] ECR I-0000, paragraph 27).
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124. Il ressort de ces éléments, premièrement, que le Tribunal n’a pas commis d’erreur de droit en interprétant le point 23 des lignes directrices pour le calcul des amendes comme signifiant que la Commission a annoncé dans celles-ci que, pour les restrictions de concurrence les plus graves, telles que les accords horizontaux de fixation de prix et de répartition du marché, elle retiendra généralement une proportion allant de 15 % à 30 % de la valeur des ventes. Le Tribunal ayant à bon droit considéré que l’infraction commise par Gosselin relevait de cette catégorie d’infractions les plus graves, Gosselin ne saurait utilement prétendre que son comportement individuel n’aurait pas été pris en compte.
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25. However, the Court has held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. Thus, the Court may refuse to rule on a question referred for a preliminary ruling by a national court where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Case 244/80 Foglia [1981] ECR 3045, paragraph 21; Case C-379/98 PreussenElektra [2001] ECR I‑2099, paragraph 39; C-390/99 Canal Satélite Digital [2002] ECR I‑607, paragraph 19; and Schneider , paragraph 22).
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19 However, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, for example, Case C-379/98 PreussenElektra [2001] I-2099, paragraph 39).
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11 THAT GENERAL PROVISION , HOWEVER , WHICH APPEARS IN TITLE II OF REGULATION NO 1408/71 , HEADED ' ' DETERMINATION OF THE LEGISLATION APPLICABLE ' ' , APPLIES ONLY IN THE ABSENCE OF PROVISION TO THE CONTRARY IN THE SPECIAL PROVISIONS RELATING TO THE VARIOUS CATEGORIES OR BENEFITS WHICH CONSTITUTE TITLE III OF THE SAME REGULATION .
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49 In adopting measures such as the setting of a time-limit for adapting existing work equipment, which involves taking into account complex economic and technical circumstances, the Member States have wide discretion (see, to that effect, inter alia Case 174/82 Sandoz [1983] ECR 2445, paragraph 19).
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19 SUCH AN ASSESSMENT IS , HOWEVER , DIFFICULT TO MAKE IN RELATION TO ADDITIVES SUCH AS VITAMINS THE ABOVEMENTIONED CHARACTERISTICS OF WHICH EXCLUDE THE POSSIBILITY OF FORESEEING OR MONITORING THE QUANTITIES CONSUMED AS PART OF THE GENERAL NUTRITION AND THE DEGREE OF HARMFULNESS OF WHICH CANNOT BE DETERMINED WITH SUFFICIENT CERTAINTY . NEVERTHELESS , ALTHOUGH IN VIEW OF THE PRESENT STAGE OF HARMONIZATION OF NATIONAL LAWS AT THE COMMUNITY LEVEL A WIDE DISCRETION MUST BE LEFT TO THE MEMBER STATES , THEY MUST , IN ORDER TO OBSERVE THE PRINCIPLE OF PROPORTIONALITY , AUTHORIZE MARKETING WHEN THE ADDITION OF VITAMINS TO FOODSTUFFS MEETS A REAL NEED , ESPECIALLY A TECHNICAL OR NUTRITIONAL ONE .
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Par conséquent, seul le caractère manifestement inapproprié d’une mesure arrêtée en ce domaine, par rapport à l’objectif que l’institution compétente entend poursuivre, peut affecter la légalité d’une telle mesure [voir, par analogie, arrêt du 10 décembre 2002, British American Tobacco (Investments) et Imperial Tobacco, C‑491/01, EU:C:2002:741, point 123].
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75. It must be pointed out, in that regard, that Regulation No 1408/71 does not set up a common scheme of social security, but allows different national social security schemes to exist and its sole objective is to ensure the coordination of those schemes (Case 21/87 Borowitz [1988] ECR 3715, paragraph 23; Case C‑331/06 Chuck [2008] ECR I‑1957, paragraph 27; and Petersen , paragraph 41). Thus, according to settled case-law, Member States retain the power to organise their social security schemes (see, to that effect, Case 238/82 Duphar and Others [1984] ECR 523, paragraph 16; Case C‑70/95 Sodemare and Others [1997] ECR I‑3395, paragraph 27; and Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 43).
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43. In this respect it is important to bear in mind that, although Member States retain the power to organise their social security schemes, they must none the less, when exercising that power, observe Community law and, in particular, the provisions of the EC Treaty on freedom of movement for workers (Case C-135/99 Elsen [2000] ECR I-10409, paragraph 33).
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10 ARTICLE 21 OF THE DIRECTIVE PROVIDES THAT AUTHORIZATION MAY NOT BE REFUSED , SUSPENDED OR REVOKED EXCEPT ON THE GROUNDS SET OUT IN THE DIRECTIVE . IT IS CLEAR FROM ARTICLES 3 TO 10 OF THE DIRECTIVE , WHICH DEAL WITH THE GRANTING OF AUTHORIZATION , AND FROM ARTICLES 11 AND 12 , WHICH DEAL WITH THE SUSPENSION AND REVOCATION OF AUTHORIZATION , THAT THE COUNCIL INTENDED TO RESTRICT THE GROUNDS FOR THE REFUSAL , SUSPENSION OR REVOCATION OF AUTHORIZATION TO MARKET PROPRIETARY MEDICINAL PRODUCTS SOLELY TO THE CONSIDERATIONS OF PUBLIC HEALTH EXPRESSLY MENTIONED IN THE DIRECTIVE .
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21 As regards the Greek Government' s reference to the need to base Regulation No 3955/87 also on Article 235, it need merely be stated that, as the Court has held, use of that article as the legal basis for a measure is justified only where no other provision of the Treaty gives the Community institutions the necessary power to adopt the measure in question ( see most recently the judgment of 30 May 1989 in Case 242/87 Commission v Council (( 1989 )) ECR 1425, paragraph 6 ).
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6 As the Court has already stated, it follows from the very wording of Article 235 that its use as the legal basis for a measure is justified only where no other provision of the Treaty gives the Community institutions the necessary power to adopt the measure in question ( judgment of 26 March 1987 in Case 45/86 Commission v Council (( 1987 )) ECR 1493 ).
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35ARTICLE 3 OF THE CONDITIONS OF EMPLOYMENT PROVIDES THAT ' ' AUXILIARY STAFF ' ' MEANS STAFF ENGAGED FOR THE PERFORMANCE OF DUTIES IN AN INSTITUTION BUT NOT ASSIGNED TO A POST INCLUDED IN THE LIST OF POSTS APPENDED TO THE SECTION OF THE BUDGET RELATING TO THAT INSTITUTION , OR STAFF ENGAGED TO REPLACE AN OFFICIAL WHO IS UNABLE FOR THE TIME BEING TO PERFORM HIS DUTIES AND WHOSE POST COULD NOT BE FILLED BY TEMPORARY POSTING OF ANOTHER OFFICIAL .
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36. Provided that the national measures come within the framework laid down by Directive 2011/64, that directive does not prevent the Member States from taking measures to combat smoking and to ensure a high level of protection for public health by levying excise duties (see, to that effect, as regards Directive 95/59, judgment in Commission v Italy , EU:C:2010:367, paragraph 48).
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48. Il n’en demeure pas moins que la directive 95/59 n’empêche pas la République italienne de poursuivre la lutte contre le tabagisme, laquelle s’inscrit dans l’objectif de protection de la santé publique.
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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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47. According to the Commission, the decisive factor in that regard is the average consumer ' s perception and not an abstract assessment of characteristics which " differ from the norm or custom in the sector" , in the terms of the second question. If the latter are not decisive in themselves, they may nevertheless in certain cases influence the average consumer ' s perception. The Commission considers that the Court must apply the principles deriving from its case-law, in which it has already indicated to national courts that they must take into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (see in particular Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraphs 30, 31 and 37).
Findings of the Court
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37 The answer to be given to the questions referred must therefore be that, in order to determine whether a statement or description designed to promote sales of eggs is liable to mislead the purchaser, in breach of Article 10(2)(e) of Regulation No 1907/90, the national court must take into account the presumed expectations which it evokes in an average consumer who is reasonably well-informed and reasonably observant and circumspect. However, Community law does not preclude the possibility that, where the national court has particular difficulty in assessing the misleading nature of the statement or description in question, it may have recourse, under the conditions laid down by its own national law, to a consumer research poll or an expert's report as guidance for its judgment.
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35 This means that, where such discrimination has been suffered, equal treatment is to be achieved by placing the worker discriminated against in the same situation as that of workers of the other sex.
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182. In so far as the question concerns successive fixed-term employment contracts, it must be pointed out that that question is the same as a question on which the Court has already given a ruling in Adeneler and Others (paragraphs 91 to 105) and that other relevant information enabling an answer to be given to that question appears in the judgments in Marrosu and Sardino (paragraphs 44 to 57) as well as Vassallo (paragraphs 33 to 42) and the order in Vassilakis and Others (paragraphs 120 to 137).
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95. While the detailed rules for implementing such provisions fall within the internal legal order of the Member States by virtue of the principle of procedural autonomy of the Member States, they must, however, not be less favourable than those governing similar domestic situations (principle of equivalence) or render impossible in practice or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Case C-312/93 Peterbroeck [1995] ECR I‑4599, paragraph 12, and the case-law cited).
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Or, conformément aux articles 256 TFUE et 58, premier alinéa, du statut de la Cour de justice de l’Union européenne, le pourvoi est limité aux questions de droit. L’appréciation des faits ne constitue donc pas, sous réserve du cas de la dénaturation des éléments qui lui ont été présentés, une question de droit soumise, comme telle, au contrôle de la Cour dans le cadre d’un pourvoi (voir arrêt du 25 octobre 2007, Develey/OHMI, C‑238/06 P, EU:C:2007:635, point 97 et jurisprudence citée).
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39. In order to guarantee the protection intended by the directive, the Court has already stated on several occasions that the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the actual parties to the contract (see, inter alia, Banco Español de Crédito , paragraph 41, and Banif Plus Bank , paragraph 21 and the case-law cited).
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41. In order to guarantee the protection intended by Directive 93/13, the Court has already stated on several occasions that the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the actual parties to the contract (see Océano Grupo Editorial and Salvat Editores , paragraph 27; Mostaza Claro , paragraph 26; Asturcom Telecomunicaciones , paragraph 31; and VB Pénzügyi Lízing , paragraph 48).
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44 It is true that the national type-approval for radio equipment is of such a nature as to be justified by considerations of public security and imperative requirements relating to the proper functioning of the public telecommunications network. It is not disputed, however, that equipment such as that at issue in the main proceedings does in fact comply with the national provisions concerning the proper use of radio frequencies in the Member State of import.
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18. In that connection, even if that court considered that the simplified regime were compulsory, the Court of Justice has consistently held that the procedure laid down in Article 267 TFEU is based on a clear separation of functions between national courts and tribunals and the Court of Justice, and the latter is empowered to rule only on the interpretation or the validity of the acts of the European Union referred to in that article. In that context, it is not for the Court to rule on the interpretation of national laws or regulations or to decide whether the referring court’s interpretation of them is correct (see, inter alia, Case C-220/05 Auroux and Others [2007] ECR I‑385, paragraph 25 and case-law cited).
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25. The Court has consistently held that the procedure laid down in Article 234 EC is based on a clear separation of functions between national courts and tribunals and the Court of Justice, and the latter is empowered to rule only on the interpretation or the validity of the Community acts referred to in that article. In that context, it is not for the Court to rule on the interpretation of national laws or regulations or to decide whether the referring court’s interpretation of them is correct (see, to that effect, Case 27/74 Demag [1974] ECR 1037, paragraph 8; Case C-347/89 Eurim-Pharm [1991] ECR I-1747, paragraph 16; and Case C-246/04 Turn- und Sportunion Waldburg [2006] ECR I-589, paragraph 20).
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En ce qui concerne la deuxième branche du deuxième moyen du pourvoi, il convient de rappeler qu’il résulte de la jurisprudence de la Cour que la notion de « pratique concertée », au sens l’article 81, paragraphe 1, CE, vise une forme de coordination entre entreprises qui, sans avoir été poussée jusqu’à la réalisation d’une convention proprement dite, substitue sciemment une coopération pratique entre elles aux risques de la concurrence (arrêt du 4 juin 2009, T-Mobile Netherlands e.a., C‑8/08, EU:C:2009:343, point 26).
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28 In the fourth case before the referring court the entitlement to an orphan's pension was therefore maintained in Germany under the principle laid down in paragraph 29 of the judgment in Case C-227/89 Rönfeldt [1991] ECR I-323 and paragraphs 38 to 45 of the judgment in Gómez Rodríguez, cited above, according to which entitlement to a more favourable benefit under a social-security convention cannot be lost owing to the entry into force of the Regulation.
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42 It follows that persons such as the appellants in the main proceedings cannot lose the social security advantage which they were guaranteed by the bilateral convention in question.
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107. However, the Court of Justice has also stated that the non-legislative activity of the institutions does not fall outside the scope of Regulation No 1049/2001. Suffice it to note in that respect that Article 2(3) of that regulation states that the latter applies to all documents held by an institution, that is to say, drawn up or received by it and in its possession, in all areas of EU activity (see, to that effect, Sweden v MyTravel and Commission , C‑506/08 P, EU:C:2011:496, paragraphs 87, 88 and 109).
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37. In any event, an application to have a species included in the list of species of mammal which may be held may be refused by the competent authorities only on the basis of a full assessment of the risk posed to the protection of the interests and requirements mentioned in paragraphs 27 to 29 of this judgment by the holding of specimens of the species in question, established on the basis of the most reliable scientific data available and the most recent results of international research (see, by analogy, inter alia, Alliance for Natural Health and Others , paragraph 73).
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73. Such a procedure must be accessible in the sense that it must be expressly mentioned in a measure of general application which is binding on the authorities concerned. It must be capable of being completed within a reasonable time. An application to have a substance included on a list of authorised substances may be refused by the competent authorities only on the basis of a full assessment of the risk posed to public health by the substance, established on the basis of the most reliable scientific data available and the most recent results of international research. If the procedure results in a refusal, the refusal must be open to challenge before the courts (see, by analogy, Case C‑24/00 Commission v France [2004] ECR I‑1277, paragraphs 26, 27 and 36, and Case C‑95/01 Greenham and Abel [2004] ECR I‑1333, paragraphs 35, 36 and 50).
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85
However, it follows from the very nature of joint and several liability that each debtor is liable for the total amount of the debt and the creditor remains, in principle, free to request the payment of that debt by one or several debtors as he chooses.
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107. The principles of customary international law mentioned in paragraph 103 of the present judgment may be relied upon by an individual for the purpose of the Court’s examination of the validity of an act of the European Union in so far as, first, those principles are capable of calling into question the competence of the European Union to adopt that act (see Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85 Ahlström Osakeyhtiö and Others v Commission [1988] ECR 5193, paragraphs 14 to 18, and Case C‑405/92 Mondiet [1993] ECR I‑6133, paragraphs 11 to 16) and, second, the act in question is liable to affect rights which the individual derives from European Union law or to create obligations under European Union law in his regard.
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14 Accordingly, it must be concluded that by applying the competition rules in the Treaty in the circumstances of this case to undertakings whose registered offices are situated outside the Community, the Commission has not made an incorrect assessment of the territorial scope of Article 85 .
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41 If that were not so, the principle that self-employed persons are to be covered by only one social security system would be undermined, as would the predictability of the system to be applied and, consequently, legal certainty. In cases in which it was difficult to determine the system applicable, each of the competent institutions of the two Member States concerned would be inclined to take the view, to the detriment of the self-employed person concerned, that their own social security system was applicable (Fitzwilliam Executive Search, paragraph 54).
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72
It is for the national court to verify, on the basis of an overall assessment of all the facts and circumstances of the case in the main proceedings, whether Santogal acted in good faith and took every step which could reasonably be asked of it to satisfy itself that the transaction carried out had not resulted in its participation in tax evasion (see, by analogy, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 53). The Court may nevertheless provide it with all the guidance on points of interpretation which may be of assistance.
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53. In that regard, it should be borne in mind that, in proceedings brought under Article 267 TFEU, the Court has no jurisdiction to check or to assess the factual circumstances of the case before the referring court. It is therefore for the national court to carry out an overall assessment of all the facts and circumstances of the case in order to establish whether Mecsek-Gabona had acted in good faith and taken every step which could reasonably be asked of it to satisfy itself that the transaction which it had carried out had not resulted in its participation in tax fraud.
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15 It is for the Member States, which have to adopt appropriate measures to ensure their internal and external security, to take decisions on the organisation of their armed forces. It does not follow, however, that such decisions must fall entirely outside the scope of Community law.
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24. In that regard, it is sufficient to point out that, in accordance with settled case-law, the Court has jurisdiction to rule on questions referred by the national court even where the facts of the proceedings before that court fall outside the scope of EU law, provided that, in regulating situations not covered by EU law, the domestic legislation has adopted the same solutions as those adopted under EU law. The Court has consistently held that the legal order of the European Union clearly has an interest in ensuring that, in order to forestall future divergences of interpretation, every provision of EU law is interpreted uniformly, irrespective of the circumstances in which that provision is to apply (see, to that effect, inter alia, Case C‑130/95 Giloy [1997] ECR I‑4291, paragraphs 19 to 28; Case C‑267/99 Adam [2001] ECR I‑7467, paragraphs 23 to 29; Case C‑43/00 Andersen og Jensen [2002] ECR I‑379, paragraphs 15 to 19; Case C‑3/04 Poseidon Chartering [2006] ECR I‑2505, paragraphs 14 to 19; and Case C-205/09 Eredics and Sápi [2010] ECR I-0000, paragraph 33).
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17. In the present case, although the questions concern a contract concluded with an intermediary with authority to negotiate a contract for services and not a contract for the sale or purchase of goods and the Directive does not therefore directly govern the situation in issue, the fact remains that, in implementing the provisions of the Directive in national law, the national legislature decided to treat those two situations in the same way.
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88. It should be recalled that, under the second paragraph of Article 51 of the Statute of the Court of Justice, ‘no appeal shall lie regarding only the amount of the costs or the party ordered to pay them’. In addition, the Court has held that, where all the other pleas put forward in an appeal have been rejected, any plea challenging the decision of the Court of First Instance on costs must be rejected as inadmissible by virtue of that provision (see Joined Cases C-302/99 P and C‑308/99 P Commission and France v TF1 [2001] ECR I-5603, paragraph 31, and Joined Cases C-57/00 P and C-61/00 P Freistaat Sachsen and Others v Commission [2003] ECR I-9975, paragraph 124).
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31
The concept of ‘employment conditions’, within the meaning of Clause 4(1) of the framework agreement, thus covers three-yearly length-of-service increments (see, to that effect, judgment of 13 September 2007, Del Cerro Alonso, C‑307/05, EU:C:2007:509, paragraph 47; of 22 December 2010, Gavieiro Gavieiro and Iglesias Torres, C‑444/09 and C‑456/09, EU:C:2010:819, paragraphs 50 to 58; and of 9 July 2015, Regojo Dans, C‑177/14, EU:C:2015:450, paragraph 43), six-yearly continuing professional education increments (see, to that effect, order of 9 February 2012, Lorenzo Martínez, C‑556/11, not published, EU:C:2012:67, paragraph 38), rules concerning periods of service to be completed in order to be classified in a higher salary grade or calculation of the periods required to have performance assessed each year (see, to that effect, judgment of 8 September 2011, Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 46 and the case-law cited), the right to participate in a teaching evaluation plan and the ensuing financial incentive (order of the Court of 21 September 2016, Álvarez Santirso, C‑631/15, EU:C:2016:725, paragraph 36), as well as the reduction of working hours by half and the consequent reduction in wages (order of 9 February 2017, Rodrigo Sanz, C‑443/16, EU:C:2017:109, paragraph 33).
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58. In those circumstances, the answer to the sole question raised in Case C‑444/09 is that a length-of-service increment such as that at issue in the main proceedings is, as an employment condition, covered by clause 4(1) of the framework agreement. Consequently, fixed-term workers may contest treatment which, with regard to payment of that increment, is less favourable than that which is given to permanent workers in a comparable situation and for which there is no objective justification. The temporary nature of the employment relationship of certain public servants is not, in itself, capable of constituting an objective ground within the meaning of that clause of the framework agreement.
The second question in Case C‑456/09
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93. It follows from those requirements, laid down in Article 6(1)(c) to (e) of Directive 95/46, that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.
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100. As regards the argument that the Court of First Instance failed to take account of SGL Carbon’s financial capacity, it must be observed that, according to settled case‑law which rightly provides inspiration for paragraph 333 of the judgment under appeal, the Commission is not required, when determining the amount of the fine, to take into account the financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions (see Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraphs 54 and 55, and SGL Carbon v Commission , paragraphs 105 and 106).
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106. That case-law is in no way called in question by Section 5(b) of the Guidelines, which states that an undertaking’s real ability to pay must be taken into consideration. That ability can be relevant only in a ‘specific social context’, namely the consequences which payment of a fine could have, in particular, by leading to an increase in unemployment or deterioration in the economic sectors upstream and downstream of the undertaking concerned.
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25. Thus, the ne bis in idem principle, enshrined in Article 54 of the CISA, falls to be applied in respect of a decision of the judicial authorities of a Contracting State by which the accused is acquitted finally for lack of evidence ( Van Straaten , paragraph 61).
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65. Indeed, in the case leading to that judgment, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside and a refusal to grant such a person a work permit have such an effect. The Court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union (see Ruiz Zambrano , paragraphs 43 and 44).
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43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
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22. Therefore, Article 34(2) of Regulation No 44/2001 must be interpreted in the light of the objectives and the scheme of that regulation.
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85. In order to respond to that argument, the Court notes that the determination of distinctive character, or lack of distinctive character, of the various elements of a sign, their importance in the overall impression given by the sign as well as the finding of conceptual similarity in relation to another sign involves a weighing up of those criteria which entails an analysis of a factual nature (see, to that effect, Case C‑327/11 P United States Polo Association v OHIM [2012] ECR I‑0000, paragraphs 59 and 61).
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61. Moreover, in so far as United States Polo is seeking to call into question the manner in which the General Court weighed up those criteria, it should be noted that the analysis carried out by the General Court in that regard is factual in nature.
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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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90. According to settled case-law, national measures that are capable of hindering intra-Community trade may inter alia be justified by overriding requirements relating to protection of the environment (see, inter alia, Ålands Vindkraft , EU:C:2014:2037, paragraph 77 and the case-law cited).
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77. According to settled case-law, national measures that are capable of hindering intra-Community trade may inter alia be justified by overriding requirements relating to protection of the environment (see, to that effect, Commission v Austria , EU:C:2008:717, paragraph 57 and the case-law cited).
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37 Points I and III in the nomenclature set out in Annex I to Directive 88/361, and the explanatory notes appearing in that annex, indicate that direct investment in the form of participation in an undertaking by means of a shareholding or the acquisition of securities on the capital market constitute capital movements within the meaning of Article 73b of the Treaty. The explanatory notes state that direct investment is characterised, in particular, by the possibility of participating effectively in the management of a company or in its control.
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40 It is true that Article 101 of the Sixth OCT Decision provides that products originating in the OCT and certain products which are in free circulation there are to be imported into the Community free of customs duties and charges having equivalent effect. However, a tax such as the VAT levied on imports of products into a Member State does not have the ingredients of a charge having an effect equivalent to customs duties (Case 15/81 Schul v Inspecteur der Invoerrechten en Accijnzen [1982] ECR 1409, paragraph 21).
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21 IT IS APPARENT FROM THOSE CONSIDERATIONS THAT A TAX OF THE KIND REFERRED TO BY THE NATIONAL COURT DOES NOT HAVE THE INGREDIENTS OF A CHARGE HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES ON IMPORTS WITHIN THE MEANING OF ARTICLES 12 AND 13 ( 2 ) OF THE TREATY . SUCH A TAX IS PART OF THE SYSTEM OF VALUE-ADDED TAX THE STRUCTURE OF WHICH , AND THE ESSENTIAL TERMS GOVERNING ITS APPLICATION , HAVE BEEN LAID DOWN BY THE COUNCIL IN HARMONIZING DIRECTIVES . THOSE DIRECTIVES HAVE ESTABLISHED A UNIFORM TAXATION PROCEDURE COVERING SYSTEMATICALLY AND ACCORDING TO OBJECTIVE CRITERIA BOTH TRANSACTIONS CARRIED OUT WITHIN THE TERRITORY OF THE MEMBER STATES AND IMPORT TRANSACTIONS . IT SHOULD BE POINTED OUT IN PARTICULAR IN THAT RESPECT THAT THE COMMON SYSTEM MAKES IMPORTS AND SUPPLIES OF LIKE GOODS WITHIN THE TERRITORY OF A MEMBER STATE SUBJECT TO THE SAME RATE OF TAX . AS A RESULT THE TAX IN QUESTION MUST BE CONSIDERED AS AN INTEGRAL PART OF A GENERAL SYSTEM OF INTERNAL TAXATION FOR THE PURPOSES OF ARTICLE 95 OF THE TREATY AND ITS COMPATIBILITY WITH COMMUNITY LAW MUST BE CONSIDERED IN THE CONTEXT OF THAT ARTICLE AND NOT OF THAT OF ARTICLES 12 ET SEQ . OF THE TREATY .
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135
It must therefore be held that a notary’s powers in matters relating to the dissolution of a registered partnership, which are based entirely on the wishes of the parties and leave the prerogatives of the courts intact in the absence of agreement between the parties, do not have any connection with the exercise of official authority (see, by analogy, judgment of 10 September 2015, Commission v Latvia, C‑151/14, EU:C:2015:577, paragraphs 68 to 70).
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93. According to the Court’s settled case‑law, the subject-matter of proceedings brought under Article 226 EC is delimited by the administrative pre-litigation procedure governed by that article and the application must be founded on the same grounds and pleas as those stated in the reasoned opinion (see, in particular, Case C‑340/02 Commission v France [2004] ECR I‑9845, paragraph 26 and the case‑law cited).
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26. It follows that, first, the subject-matter of proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision. Accordingly, the application must be founded on the same grounds and pleas as the reasoned opinion. If a charge was not included in the reasoned opinion, it is inadmissible at the stage of proceedings before the Court (see, in particular, Commission v Italy , cited above, paragraph 11).
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16. The public interest relating to the social protection of workers in the construction industry may however, because of conditions specific to that sector, constitute an overriding requirement justifying such a restriction on the freedom to provide services.
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72. Finally, as regards the complaint alleging infringement, by Article 364a, of the general right of freedom of movement for persons guaranteed by Article 18 EC with regard to persons who are not economically active, the same conclusion applies, for the same reasons (see, to that effect, Case C‑406/04 De Cuyper [2006] ECR I‑6947, paragraphs 39 and 40).
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39. It is established that national legislation such as that in this case which places at a disadvantage certain of its nationals simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 18 EC on every citizen of the Union (see, to that effect, Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 31, and Case C‑224/02 Pusa [2004] ECR I-5763, paragraph 19).
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54 In view of the foregoing considerations, it must be concluded that Directive 83/189 is to be interpreted as meaning that breach of the obligation to notify renders the technical regulations concerned inapplicable, so that they are unenforceable against individuals.
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32
Thus, it is essential that the contractor’s activity be principally devoted to the controlling authority or authorities; the nature of any other activity may only be marginal. In order to determine whether that is the case, the court having jurisdiction must take into account all the facts of the case, both qualitative and quantitative. In that regard, the relevant turnover is the turnover that that contractor achieves pursuant to the award decisions taken by that or those controlling authorities (see, to that effect, judgments of 11 May 2006, Carbotermo and Consorzio Alisei, C‑340/04, EU:C:2006:308, paragraphs 63 and 65, and of 17 July 2008, Commission v Italy, C‑371/05, not published, EU:C:2008:410, paragraph 31).
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63. In applying those principles, the undertaking in question can be viewed as carrying out the essential part of its activities with the controlling authority within the meaning of Teckal only if that undertaking’s activities are devoted principally to that authority and any other activities are only of marginal significance.
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22. Within the ECN, a model leniency programme, designed to achieve the harmonisation of some elements of national leniency programmes, was also drawn up and adopted in 2006. However, that model programme likewise has no binding effect on the courts and tribunals of the Member States.
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23. Moreover, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and tribunals and the Court of Justice, any assessment of the facts in the case is a matter for the national court or tribunal (see, inter alia, Joined Cases C‑211/03, C‑299/03 and C‑316/03 to C‑318/03 HLH Warenvertrieb and Orthica [2005] ECR I‑5141, paragraph 96, and Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 43). In particular, the Court is empowered to rule only on the interpretation or the validity of Community acts on the basis of the facts placed before it by the national court or tribunal (see, inter alia, Case 104/77 Oehlschläger [1978] ECR 791, paragraph 4, and Case C‑467/04 Gasparini and Others [2006] ECR I‑9199, paragraph 41). It is for the national court or tribunal to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see, to that effect, Case 17/81 Pabst & Richarz [1982] ECR 1331, paragraph 12, and Case C‑291/05 Eind [2007] ECR I‑0000, paragraph 18).
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43. In this regard, it must be recalled that, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C-326/00 IKA [2003] ECR I-1703, paragraph 27; Case C-145/03 Keller [2005] ECR I-2529, paragraph 33; and Case C-419/04 Conseil général de la Vienne [2006] ECR I-5645, paragraph 19).
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28. However, it is important to note that, irrespective of the effects that the withholding tax may have on the tax situation of non-resident service providers, such an obligation to withhold tax, inasmuch as it entails an additional administrative burden as well as the related risks concerning liability, is liable to render cross-border services less attractive for resident recipients of services than services provided by resident service providers and to deter those recipients from having recourse to non-resident service providers.
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26. It should also be noted that the transactions exempted under Article 13B(d)(3) of the Sixth Directive are defined in terms of the nature of the services provided and not in terms of the person supplying or receiving the service (see SDC , paragraphs 32 and 56; Case C-305/01 MKG-Kraftfahrzeuge-Factoring [2003] ECR I‑6729, paragraph 64; and Swiss Re Germany Holding , paragraph 44 and the case-law cited). The exemption is therefore not subject to the condition that the transactions be effected by a certain type of institution or legal person, where the transactions in question relate to the sphere of financial transactions (see, to that effect, SDC , paragraph 38; Velvet & Steel Immobilien , paragraph 22; and Swiss Re Germany Holding , paragraph 46).
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44. In that context, it should also be noted that the transactions exempted under Article 13B(d)(2) and (3) of the Sixth Directive are defined in terms of the nature of the services provided and not in terms of the person supplying or receiving the service (see, to that effect, Case C-2/95 SDC [1997] ECR I-3017, paragraph 32; Case C-169/04 Abbey National [2006] ECR I-4027, paragraph 66; and Case C-453/05 Ludwig [2007] ECR I‑5083, paragraph 25).
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42. Il y a lieu de relever, à cet égard, que les règles interdisant des restrictions à la liberté d’établissement énoncées à l’article 31 de l’accord EEE sont identiques à celles qu’impose l’article 49 TFUE. La Cour a ainsi précisé que, dans le domaine considéré, les règles édictées par l’accord EEE et celles qui le sont par le traité FUE doivent faire l’objet d’une interprétation uniforme (arrêt Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt, précité, point 24 et jurisprudence citée).
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31 The fact that the Community legislature refers, in Annex IIa to Regulation No 1408/71, to legislation such as that relating to AA must be accepted as establishing that benefits granted pursuant to that legislation are special non-contributory benefits falling within the scope of Article 10a of Regulation No 1408/71 (see, in particular, to that effect, Snares, paragraph 30).
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30 The fact that the Community legislature refers to legislation, such as that relating to DLA, in Annex IIa to Regulation No 1408/71 must be accepted as establishing that benefits granted pursuant to that legislation are special non-contributory benefits falling within the scope of Article 10a of Regulation No 1408/71 (see, in particular, to that effect, Case 24/64 Dingemans v Bestuur der Sociale Verzekeringsbank [1964] ECR 647, at p. 654).
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91. Or, même à considérer de telles indications comme des assurances précises aptes à faire naître dans le chef des destinataires une confiance légitime, il y a lieu d’exclure, ainsi que l’a fait le Tribunal au point 95 de l’arrêt attaqué, que les requérants puissent se prévaloir de celle-ci pour contester la légalité de la règle juridique sur laquelle se fondent les décisions litigieuses. En effet, les particuliers ne sauraient se prévaloir du principe de protection de la confiance légitime pour s’opposer à l’application d’une disposition réglementaire nouvelle, surtout dans un domaine dans lequel le législateur dispose d’un large pouvoir d’appréciation (voir, notamment, arrêt du 19 novembre 1998, Espagne/Conseil, C-284/94, Rec. p. I‑7309, point 43).
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79 It is settled case-law that any activity consisting in offering goods and services on a given market is an economic activity (see, inter alia, Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 36 and Case C-475/99 Glöckner [2001] ECR I-8089, paragraph 19).
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36 It must first be noted that, according to settled case-law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Case C-244/94 Fédération Française des Sociétés d'Assurances and Others v Ministère de l'Agriculture et de la Pêche [1995] ECR I-4013, paragraph 14; and Case C-55/96 Job Centre [1997] ECR I-7119, paragraph 21), and that any activity consisting in offering goods and services on a given market is an economic activity (Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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34. It should be noted that the common system of VAT does not prohibit the correction of incorrect invoices. Accordingly, where all of the material conditions required in order to benefit from the right to deduct VAT are satisfied and, before the tax authority concerned has made a decision, the taxable person has submitted a corrected invoice to that tax authority, the benefit of that right cannot, in principle, be refused on the ground that the original invoice contained an error (see, to that effect, Pannon Gép Centrum , paragraphs 43 to 45).
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44. In the light of the findings in paragraphs 38 and 41 of this judgment, if the corrected invoices contained all the details required by Directive 2006/112, in particular in Article 226 of that directive, which it is for the national court to determine, it should be held that, in circumstances such as those in the main proceedings, all the material and formal conditions governing whether the applicant is entitled to deduct the VAT relating to the supply of services by the sub-contractor were satisfied. In that regard, it should be noted that Article 226 of Directive 2006/112 imposes no requirement that corrected invoices and credit notes cancelling incorrect invoices must fall within the same series.
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25 AS A REFERENCE TO A SET OF LEGISLATIVE PROVISIONS EFFECTIVELY APPLIED BY THE COUNTRY OF ESTABLISHMENT TO ITS OWN NATIONALS, THIS RULE IS, BY ITS ESSENCE, CAPABLE OF BEING DIRECTLY INVOKED BY NATIONALS OF ALL THE OTHER MEMBER STATES .
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100 It should be recalled that the Court's case-law (see, in particular, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69) defines misuse of powers as the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case.
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69 The Court' s case-law (see, in particular, Case C-156/93 Parliament v Commission [1995] ECR I-2019, paragraph 31) defines misuse of powers as the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case.
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37 Such a restriction of the freedom to provide services is justifiable only if it is necessary in order to pursue, effectively and by appropriate means, an objective in the public interest.
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33
In that regard, the General Court recalled, firstly, in paragraph 22 of the judgment under appeal, that the Court of Justice has previously held that it follows from a schematic interpretation of the relevant regulations that the adoption by the Commission of a decision on financial corrections in connection with the Cohesion Fund, as from 2000, was subject to the observance of a certain time limit, the length of which varied depending on the applicable rules (see, to that effect, judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 76, 82, 83, 93 and 94, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 76, 82, 83, 93 and 94).
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83. That conclusion, derived from a schematic interpretation of the relevant regulations both of the Council and of the Commission, is, moreover, further supported by the wording of the passage on page 63 of Communication 2011/C 332/01 from the Commission itself, relied on by the Kingdom of Spain in support of its appeal, as is apparent from paragraph 34 above.
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31
As regards the objective of Article 109(1) of Regulation No 207/2009, it should be noted that, according to recital 17 of the regulation, it is intended to avoid contradictory judgments in actions which involve the same acts and the same parties and which are brought on the basis of an EU trade mark and parallel national trade marks.
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62
As pointed out, in the context of the present case, by the referring court, it is also settled case-law that the fundamental rights guaranteed by the Charter are applicable in all situations governed by EU law and that they must, therefore, in particular be complied with where national legislation falls within the scope of EU law (see, in particular, judgment of 26 February 2013, Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraphs 19 to 21).
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20. That definition of the field of application of the fundamental rights of the European Union is borne out by the explanations relating to Article 51 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it (see, to this effect, Case C-279/09 DEB [2010] ECR I-13849, paragraph 32). According to those explanations, ‘the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law’.
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Il est également de jurisprudence constante que l’existence d’un tel lien doit être appréciée globalement, en tenant compte de tous les facteurs pertinents du cas d’espèce, tels que le degré de similitude entre les marques en conflit, la nature des produits ou des services pour lesquels les marques en conflit sont respectivement enregistrées, y compris le degré de proximité ou de dissemblance de ces produits ou services ainsi que le public concerné, l’intensité de la renommée de la marque antérieure, le degré de caractère distinctif, intrinsèque ou acquis par l’usage, de la marque antérieure et l’existence d’un risque de confusion dans l’esprit du public (voir, en ce sens, arrêt du 12 mars 2009, Antartica/OHMI, C‑320/07 P, non publié, EU:C:2009:146, point 45).
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80. Consequently, the fact that Mr de Groot has Netherlands nationality cannot prevent him from relying on the rules relating to freedom of movement for workers as against the Member State of which he is a national, since he has exercised his right to freedom of movement and worked in another Member State (Terhoeve , paragraphs 27 to 29, and Sehrer , paragraph 29).
Whether there is an obstacle to freedom of movement for workers
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28 It follows that, in the main proceedings, even though Mr Terhoeve, a Netherlands national, seeks to rely on the rules relating to freedom of movement for workers against the Netherlands authorities, that does not affect the application of those rules. His complaint is precisely that he was placed at a disadvantage because he worked in another Member 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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22. As far as concerns social security benefits the Court has, on several occasions, discussed the factors to be taken into consideration for the purposes of ascertaining the legal nature of such benefits. Thus, the Court has stated that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia , Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14, and Case C-78/91 Hughes [1992] ECR I-4839, paragraph 15).
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13 AS IS CLEAR FROM DOCUMENTS BEFORE THE COURT , THE ' MINIMEX ' IS CHARACTERIZED ON THE ONE HAND BY THE FACT THAT IT CONFERS UPON RECIPIENTS A LEGALLY DEFINED POSITION AND , ON THE OTHER , BY THE FACT THAT IT IS GRANTED TO ANY PERSON WHO DOES NOT HAVE ADEQUATE MEANS AND IS UNABLE TO ' OBTAIN THEM EITHER BY HIS OWN EFFORTS OR IN ANY OTHER WAY ' ( ARTICLE 1 ( 1 ) OF THE LAW OF 7 AUGUST 1974 ); IT THUS ADOPTS NEED AS AN ESSENTIAL CRITERION FOR ITS APPLICATION AND DOES NOT MAKE ANY STIPULATIONS AS TO PERIODS OF WORK , CONTRIBUTION OR AFFILIATION TO ANY PARTICULAR SOCIAL SECURITY BODY COVERING A SPECIFIC RISK . A CLAIMANT NEED ONLY SHOW THAT ' HE IS PREPARED TO ACCEPT WORK ' UNLESS PREVENTED BY HIS STATE OF HEALTH OR COMPELLING SOCIAL REASONS ; FURTHERMORE , HE IS REQUIRED TO EXERCISE HIS RIGHTS TO SOCIAL BENEFITS OR EVEN ANY RIGHTS TO MAINTENANCE IF THE PUBLIC SOCIAL WELFARE CENTRE CONSIDERS IT NECESSARY ( ARTICLE 6 ( 1 ) AND ( 2 ) OF THE 1974 LAW ).
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28. That list is exhaustive in nature and its items must be interpreted strictly inasmuch as they constitute an obstacle to the attainment of one of the fundamental objectives of Regulation No 44/2001 intended to facilitate the free movement of judgments by establishing a simple and rapid enforcement procedure (see, to that effect, Cast C‑420/07 Apostolides [2009] ECR I‑3571, paragraph 55 and the case‑law cited, and Case C‑139/10 Prism Investments [2011] ECR I‑9511, paragraph 33).
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58. Moreover, it must be borne in mind that, in accordance with the settled case-law of the Court, EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union (see, inter alia, judgments in Bettati , C‑341/95, EU:C:1998:353, paragraph 20; SGAE , C‑306/05, EU:C:2006:764, paragraph 35; Peek & Cloppenburg , C‑456/06, EU:C:2008:232, paragraphs 29 to 32, and Donner , C‑5/11, EU:C:2012:370, paragraph 23).
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35. Moreover, Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community (see, in particular, Case C‑341/95 Bettati [1998] ECR I‑4355, paragraph 20 and the case-law cited).
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174 THIS OBJECT COULD NOT BE ADEQUATELY ATTAINED IF THE IMPOSITION OF A PENALTY WERE TO BE RESTRICTED TO CURRENT INFRINGEMENTS ALONE .
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32. The Court has also held that that provision of the EC Treaty permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for public health, or even the survival of the population ( Kohll , paragraph 51; Smits and Peerbooms , paragraph 74; and Müller-Fauré and van Riet , paragraph 67).
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74 The Court has further held that Article 56 of the Treaty permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for the public health, and even the survival of, the population (Kohll, paragraph 51).
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57 Secondly, with regard to imports of plain paper photocopiers supplied by Fuji Xerox from Japan, the Council and the Commission took the view that Rank Xerox had not produced evidence that it had been led to buy the machines on grounds of self-protection . According to the information obtained the decision was a management decision taken by the Xerox group of companies . However, the volume of those imports was minimal in relation to the entire range of plain paper photocopiers produced by Rank Xerox within the Community and in relation to the Community market as a whole ( 1 %), and the resale prices were the same as the prices of equivalent machines produced by Rank Xerox .
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58. According to settled case-law, in order to assess the anti-competitive nature of an agreement, regard must be had inter alia to the content of its provisions, the objectives it seeks to attain and the economic and legal context of which it forms a part (see, to that effect, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraph 25, and Case C-209/07 Beef Industry Development Society and Barry Brothers [2008] ECR I-0000, paragraphs 16 and 21). In addition, although the parties’ intention is not a necessary factor in determining whether an agreement is restrictive, there is nothing prohibiting the Commission or the Community judicature from taking that aspect into account (see, to that effect, IAZ International Belgium and Others v Commission , cited above, paragraphs 23 to 25).
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21. In fact, to determine whether an agreement comes within the prohibition laid down in Article 81(1) EC, close regard must be paid to the wording of its provisions and to the objectives which it is intended to attain. In that regard, even supposing it to be established that the parties to an agreement acted without any subjective intention of restricting competition, but with the object of remedying the effects of a crisis in their sector, such considerations are irrelevant for the purposes of applying that provision. Indeed, an agreement may be regarded as having a restrictive object even if it does not have the restriction of competition as its sole aim but also pursues other legitimate objectives ( General Motors v Commission , paragraph 64 and the case-law cited). It is only in connection with Article 81(3) EC that matters such as those relied upon by BIDS may, if appropriate, be taken into consideration for the purposes of obtaining an exemption from the prohibition laid down in Article 81(1) EC.
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30 The applicant' s line of argument is tantamount to saying that the appointing authority could not in the circumstances exercise its discretion otherwise than by appointing him to the higher grade of the career bracket concerned, as if a given level of practical experience could confer on the person possessing it a right to be appointed at that grade.
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29
The questions of the referring court as to the classification of an employer, which is the statutory assignee of the injured party’s rights, as the ‘weaker party’ arise from the finding made by the Court that a social security institution, which is the statutory assignee of the rights of the person directly injured in a car accident cannot be classified as such, whereas a person to whom the rights of the person directly injured have passed, such as an heir, may be (see, to that effect, judgment of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraphs 42 and 44).
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42. It has not been argued that a social security institution, such as VGKK, is an economically weaker party and less experienced legally than a civil liability insurer such as WGV‑SAV. In general, the Court has already held that no special protection is justified where the parties concerned are professionals in the insurance sector, none of whom may be presumed to be in a weaker position than the others (Case C‑77/04 GIE Réunion européenne and Others [2005] ECR I‑4509, paragraph 20).
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24. It follows that the compliance with Community law of the national legislation at issue in the main proceedings must be examined again in the light of the principle of proportionality.
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90. However, the fundamental requirement of legal certainty has the effect of preventing the Commission from indefinitely delaying the exercise of its powers (see Geigy v Commission , cited above, paragraphs 20 and 21, and Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraph 140). In that regard, a delay by the Commission in deciding that an aid is illegal and must be abolished and recovered by a Member State could in certain circumstances establish a legitimate expectation on the part of the recipients of that aid so as to prevent the Commission from requiring that Member State to order the refund of the aid (see Case 223/85 RSV v Commission [1987] ECR 4617, paragraph 17). However, the facts of the case giving rise to that judgment were exceptional and bear no resemblance to those in the present case. The measure at issue in that judgment concerned a sector which had for some years been receiving State aid approved by the Commission and its object was to meet the additional costs of an operation which had already received authorised aid (Case C‑334/99 Germany v Commission [2003] ECR I‑1139, paragraph 44).
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21 THE PROVISIONS GOVERNING THE COMMISSION' S POWER TO IMPOSE FINES FOR INFRINGEMENT OF THE RULES ON COMPETITION DO NOT LAY DOWN ANY PERIOD OF LIMITATION .
IN ORDER TO FULFIL THEIR FUNCTION, LIMITATION PERIODS MUST BE FIXED IN ADVANCE .
THE FIXING OF THEIR DURATION AND THE DETAILED RULES FOR THEIR APPLICATION COME WITHIN THE POWERS OF THE COMMUNITY LEGISLATURE .
ALTHOUGH, IN THE ABSENCE OF ANY PROVISIONS ON THIS MATTER, THE FUNDAMENTAL REQUIREMENT OF LEGAL CERTAINTY HAS THE EFFECT OF PREVENTING THE COMMISSION FROM INDEFINITELY DELAYING THE EXERCISE OF ITS POWER TO IMPOSE FINES, ITS CONDUCT IN THE PRESENT CASE CANNOT BE REGARDED AS CONSTITUTING A BAR TO THE EXERCISE OF THAT POWER AS REGARDS PARTICIPATION IN THE CONCERTED PRACTICES OF 1964 AND 1965 .
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33. It follows that, in the event of the cessation of the taxable economic activity, the taxable amount of the transaction is the value of the goods in question determined at the time of that cessation, which therefore takes into account the change in the value of those assets between their acquisition and the cessation.
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102. Nevertheless, as the Court has also stated, the fact that the EIB has that degree of operational and institutional autonomy does not mean that it is totally separated from the Communities and exempt from every rule of Community law. It is clear in particular from Article 267 EC that the EIB is intended to contribute towards the attainment of the European Community's objectives and thus by virtue of the Treaty forms part of the framework of the Community. It follows that the position of the EIB is therefore ambivalent inasmuch as it is characterised, on the one hand, by independence in the management of its affairs, in particular in the sphere of financial operations, and, on the other, by a close link with the European Community as regards its objectives (Commission v EIB , paragraphs 29 and 30).
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30 THE POSITION OF THE BANK IS THEREFORE AMBIVALENT INASMUCH AS IT IS CHARACTERIZED ON THE ONE HAND BY INDEPENDENCE IN THE MANAGEMENT OF ITS AFFAIRS, IN PARTICULAR IN THE SPHERE OF FINANCIAL OPERATIONS, AND ON THE OTHER BY A CLOSE LINK WITH THE COMMUNITY AS REGARDS ITS OBJECTIVES . IT IS ENTIRELY COMPATIBLE WITH THE AMBIVALENT NATURE OF THE BANK THAT THE PROVISIONS GENERALLY APPLICABLE TO THE TAXATION OF STAFF AT THE COMMUNITY LEVEL SHOULD ALSO APPLY TO THE STAFF OF THE BANK . THIS IS TRUE IN PARTICULAR OF THE RULE THAT THE TAX IN QUESTION IS COLLECTED FOR THE BENEFIT OF THE COMMUNITIES' BUDGET . CONTRARY TO THE CONTENTIONS OF THE BOARD OF GOVERNORS, THE FACT THAT THE TAX IS ALLOTTED TO THAT PURPOSE IS NOT LIABLE TO UNDERMINE THE OPERATIONAL AUTONOMY AND REPUTATION OF THE BANK AS AN INDEPENDENT INSTITUTION ON THE FINANCIAL MARKETS SINCE IT DOES NOT AFFECT THE CAPITAL OR THE ACTUAL MANAGEMENT OF THE BANK .
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68. It follows that, if a product manufactured industrially comes within the definition of medicinal product in Article 1(2) of Directive 2001/83, the obligation on the importer of that product to obtain a marketing authorisation in accordance with that directive prior to marketing it in the Member State of importation cannot, in any event, constitute a restriction on trade between Member States prohibited by Article 28 EC (Case C‑319/05 Commission v Germany [2007] ECR I‑9811, paragraph 35).
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10 Parenting leave (or parental leave) is governed by the Gesetz über die Gewährung von Erziehungsgeld und Erziehungsurlaub - Bundeserziehungsgeldgesetz (Law on the grant of the parenting allowance and parenting leave, hereinafter `the BErzGG'). Parenting leave, which may be taken on a voluntary basis and regardless of sex, begins at the earliest, under Article 15(2) of the BErzGG, at the end of the period for the protection of mothers and ends no later than the date on which the child reaches the age of three. During that period the contract of the employee on leave is suspended. The employee on parenting leave does not receive monthly remuneration but, under Article 1 et seq. of the BErzGG, receives a benefit known as the `parenting allowance' which is paid by the State and is income-based.
The main proceedings
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20 Accordingly, without there being any need to discuss whether or not the directive on equal treatment is applicable, the answer to the first question must be that the benefits paid by an employer to a worker in connection with the latter' s compulsory redundancy fall within the scope of the second paragraph of Article 119, whether they are paid under a contract of employment, by virtue of legislative provisions or on a voluntary basis .
The second question
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64. Quant à la troisième branche du deuxième moyen, qui énonce une simple allégation selon laquelle le Tribunal a substitué la motivation insuffisante de la décision litigieuse par sa propre appréciation, il convient de rappeler que la seule énonciation abstraite d’un principe de droit ne saurait donner lieu à un contrôle par la Cour dans le cadre d’un pourvoi (voir, en ce sens, arrêt du 5 mars 1991, Grifoni/CEEA, C‑330/88, Rec. p. I‑1045, point 18, et ordonnance du 12 décembre 2006, Autosalone Ispra/Commission, C‑129/06 P, point 30).
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12 As the Court has repeatedly held (see, in particular, the judgments in Case 252/86 Bergandi v Directeur-Général des Impôts [1988] ECR 1343, paragraph 15, Joined Cases 93/88 and 94/88 Wisselink and Others v Staatssecretaris van Financiën [1989] ECR 2671, paragraph 18, Case C-109/90 Giant [1991] ECR I-1385, paragraphs 11 and 12 and in the aforementioned Dansk Denkavit case, paragraph 11), the essential features of VAT are as follows: VAT applies generally to transactions relating to goods or services; it is proportional to the price of those goods or services; it is charged at each stage of the production and distribution process; and finally it is imposed on the added value of goods and services, since the tax payable on a transaction is calculated after deduction of the tax paid on the previous transaction.
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11 In order to decide whether a tax can be characterized as a turnover tax it is necessary, in particular, to determine, as the Court stated in its judgment in Case 295/84 (Rousseau Wilmot v Organic [1985] ECR 3759) and in Case 252/86 (Bergandi v Directeur-général des impôts [1988] ECR 1343), whether it has the effect of compromising the functioning of the common system of value added tax by levying a charge on the movement of goods and services and on commercial transactions in a way comparable to value added tax.
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9 The scope ratione personae of the Directive is determined by Article 2, according to which the Directive applies to the working population, to persons seeking employment and to workers and self-employed persons whose activity is interrupted by one of the risks set out in Article 3(1)(a ), that is to say illness, invalidity, old age, an accident at work or an occupational disease, or unemployment .
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100. As regards the argument that the Court of First Instance failed to take account of SGL Carbon’s financial capacity, it must be observed that, according to settled case‑law which rightly provides inspiration for paragraph 333 of the judgment under appeal, the Commission is not required, when determining the amount of the fine, to take into account the financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions (see Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraphs 54 and 55, and SGL Carbon v Commission , paragraphs 105 and 106).
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105. According to settled case‑law, the Commission is not required, when determining the amount of the fine, to take into account the poor financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions (see Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraphs 54 and 55, and Dansk Rørindustri and Others v Commission , paragraph 327).
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29. Interest on arrears is thus intended to offset the consequences arising as a result of the payment not having been made by the deadline set and, in particular, to prevent the person who owes the customs debt from taking unfair advantage of the fact that the amounts owing by way of customs debt remain available to him beyond the deadline set for its settlement. It is against that background that Article 232(1)(b) of the Customs Code provides that the rate of interest on arrears cannot be lower than the rate of credit interest.
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54. On the other hand, a national provision which merely authorises recourse to successive fixed-term contracts, in a general and abstract manner by a rule of statute or secondary legislation, does not accord with the requirements as stated in the previous paragraph ( Adeneler and Others , paragraph 71).
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71. On the other hand, a national provision which merely authorises recourse to successive fixed-term employment contracts in a general and abstract manner by a rule of statute or secondary legislation does not accord with the requirements as stated in the preceding two paragraphs.
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31. The Portuguese Republic also maintains that Article 10(5) of the CIRS is intended to ensure that the taxpayer’s own residence and that of his family are protected and maintained and, therefore, guarantees that individual a right to accommodation, which is a constitutional right.
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82. Indeed, as the Belgian Government correctly submits, the guaranteeing associations, which, under Article 8(1) of the TIR Convention, are jointly and severally liable with the holder of the TIR carnet to pay the customs duties which may be due, may, like the holder, bring a challenge against the entitlements themselves (see, to that effect, concerning proof of the place where the irregularity occurred, Case C-78/01 BGL [2003] ECR I‑9543, paragraphs 50 to 53). The Commission contends, however, that the disputes referred to by the Belgian Government concern the enforcement of the security and not the existence or amount of the claims in dispute. The Belgian Government has, moreover, failed to demonstrate that the conditions laid down in Article 6(3)(b) of Regulation No 1150/2000 are met in the present case, namely that the entitlements at issue in the present proceedings were challenged by those associations within the prescribed periods and might, upon settlement of the disputes which have arisen, be subject to change.
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51. Moreover, Article 455 of that regulation refers to Article 11 of the TIR Convention, which deals exclusively with the guaranteeing association in each of its three paragraphs. It follows that Article 455 must be interpreted as not precluding the guaranteeing association from being able to furnish such proof.
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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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22. In such circumstances, the burden of the charge levied but not due has been borne not by the taxable person, but by the purchaser to whom the cost has been passed on. Accordingly, to repay the taxable person the amount of the charge already collected from the purchaser would be tantamount to paying him twice over, which may be described as unjust enrichment, whilst in no way remedying the consequences for the purchaser of the illegality of the charge (Joined Cases C‑192/95 to C‑218/95 Comateb and Others [1997] ECR I‑165, paragraph 22, and Lady & Kid and Others , paragraph 19).
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19. In such circumstances, the burden of the charge levied but not due has been borne not by the trader, but by the purchaser to whom the cost has been passed on. Therefore, to repay the trader the amount of the charge already received from the purchaser would be tantamount to paying him twice over, which may be described as unjust enrichment, whilst in no way remedying the consequences for the purchaser of the illegality of the charge ( Comateb and Others , paragraph 22).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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41. Although the Member States have thus been allowed a measure of discretion in specifying certain types of projects which will be subject to an assessment or to establish the criteria and/or thresholds applicable, the limits of that discret ion are to be found in the obligation set out in Article 2(1) of Directive 85/337 as amended by Directive 97/11 that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment (see Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 50; Case C‑2/07 Abraham and Others [2008] ECR I‑1197, paragraph 37; and Case C‑75/08 Mellor [2009] ECR I‑0000, paragraph 50).
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50. On the other hand, projects which appear in Annex II must only be subject to such an assessment if they are likely to have significant effects on the environment and, in that regard, Directive 85/337 allows the Member States some discretion. Nevertheless, the limits of that discretion are to be found in the obligation on the Member States, set out in Article 2(1) of Directive 85/337, to make projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment subject to an assessment (see, to that effect, Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 50, and Case C‑486/04 Commission v Italy [2006] ECR I‑11025, paragraph 53).
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17 It must also be noted that, although the transfer of assets is one of the criteria to be taken into account by the national court in deciding whether an undertaking has in fact been transferred, the absence of such assets does not necessarily preclude the existence of such a transfer (Schmidt and Merckx, cited above, paragraphs 16 and 21 respectively).
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62. The Court has held, however, that the hazardous or non-hazardous nature of the waste is not, of itself, a relevant criterion for assessing whether a waste treatment operation must be classified as ‘recovery’ within the meaning of Article 1(f) of Directive 75/442. The essential characteristic of a waste recovery operation is that its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources (Case C-6/00 ASA [2002] ECR I-1961, paragraphs 68 and 69).
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69 However, it does follow from Article 3(1)(b) and the fourth recital of the Directive that the essential characteristic of a waste recovery operation is that its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources.
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42. Moreover, a restriction on a fundamental freedom is prohibited by the Treaty, even if it is of limited scope or minor importance (see, to that effect, Case C-34/98 Commission v France [2000] ECR I-995, paragraph 49; Case C-9/02 de Lasteyrie du Saillant [2004] ECR I-2409, paragraph 43; and Case C-170/05 Denkavit Internationaal and Denkavit France [2006] ECR I-11949, paragraph 50).
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27. Accordingly, in cases which concerned tax levies imposed by the French tax authorities on employment income and substitute income received by employed and self-employed persons residing in France who were subject to the tax regime of the French Republic, but who worked in another Member State, the Court found that those levies were allocated specifically and directly to financing social security in France and concluded from this that they had a direct and sufficiently relevant link with the legislation governing the branches of social security listed in Article 4 of Regulation No 1408/71 (judgments in Commission v France , EU:C:2000:84, paragraphs 36 and 37, and Commission v France , EU:C:2000:85, paragraphs 34 and 35).
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47 As is clear from the tenth recital in the preamble to Regulation No 1408/71, the principle that the legislation of a single Member State is to apply is aimed at guaranteeing the equality of treatment of all workers occupied on the territory of a Member State as effectively as possible.
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12 The rule laid down in Article 6 ( 1 ) therefore applies where the actions brought against the various defendants are related when the proceedings are instituted, that is to say where it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings . It is for the national court to verify in each individual case whether that condition is satisfied .
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33 However, determination of the scope of the protection which a Member State intends providing in its territory in relation to lotteries and other forms of gambling falls within the margin of appreciation which the Court, in paragraph 61 of Schindler, recognised as being enjoyed by the national authorities. It is for those authorities to consider whether, in the context of the aim pursued, it is necessary to prohibit activities of that kind, totally or partially, or only to restrict them and to lay down more or less rigorous procedures for controlling them.
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61 Those particular factors justify national authorities having a sufficient degree of latitude to determine what is required to protect the players and, more generally, in the light of the specific social and cultural features of each Member State, to maintain order in society, as regards the manner in which lotteries are operated, the size of the stakes, and the allocation of the profits they yield. In those circumstances, it is for them to assess not only whether it is necessary to restrict the activities of lotteries but also whether they should be prohibited, provided that those restrictions are not discriminatory.
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46
The fact that the offer of goods or services is made on a not-for-profit basis does not prevent the entity which carries out those operations on the market from being considered an undertaking, since that offer exists in competition with that of other operators which do seek to make a profit (judgment of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraph 27).
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71. It should be noted at the outset that, according to settled case-law, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, inter alia, Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 51; judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa v Commission , paragraph 72; and Case C‑535/06 P Moser Baer India v Council [2009] ECR I‑7051, paragraph 31).
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72. À cet égard, il y a lieu de rappeler que, selon une jurisprudence constante, il résulte des articles 225 CE et 58, premier alinéa, du statut de la Cour de justice que le Tribunal est seul compétent, d’une part, pour constater les faits, sauf dans le cas où l’inexactitude matérielle de ses constatations résulterait des pièces du dossier qui lui ont été soumises, et, d’autre part, pour apprécier ces faits. Lorsque le Tribunal a constaté ou apprécié les faits, la Cour est compétente pour exercer, en vertu de l’article 225 CE, un contrôle sur la qualification juridique de ces faits et les conséquences de droit qui en ont été tirées par le Tribunal (voir, notamment, arrêts du 6 avril 2006, General Motors/Commission, C‑551/03 P, Rec. p. I‑3173, point 51, et JCB Service/Commission, précité, point 106).
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56 Furthermore, the fact that hospital medical treatment is financed directly by the sickness insurance funds on the basis of agreements and pre-set scales of fees is not in any event such as to remove such treatment from the sphere of services within the meaning of Article 60 of the Treaty.
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29. For those purposes, it should be noted that the Court has consistently held that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment in Rosselle , C‑65/14, EU:C:2015:339, paragraph 43 and the case-law cited).
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43. According to the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments in Merck , 292/82, EU:C:1983:335, paragraph 12; in TNT Express Nederland , C‑533/08, EU:C:2010:243, paragraph 44; and in Utopia , C‑40/14, EU:C:2014:2389, paragraph 27).
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50. En second lieu, il résulte de la jurisprudence de la Cour que le requérant peut également conserver un intérêt à demander l’annulation d’un acte d’une institution communautaire pour permettre d’éviter que l’illégalité dont celui-ci est prétendument entaché ne se reproduise à l’avenir (voir, en ce sens, arrêts du 6 mars 1979, Simmenthal/Commission, 92/78, Rec. p. 777, point 32; AKZO Chemie/Commission, précité, point 21, et Apesco/Commission, précité, point 16).
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37
Furthermore, it should be pointed out that it is clear from the case-law of the Court that, where taxes or duties have been levied by a Member State pursuant to an EU regulation that has been declared invalid or annulled by the EU judicature, the interested parties who have paid the taxes or duties in question have the right, in principle, to obtain not only the repayment of the amounts levied but also interest on those amounts (see, to that effect, judgment of 27 September 2012, Zuckerfabrik Jülich and Others, C‑113/10, C‑147/10 and C‑234/10, EU:C:2012:591, paragraphs 65 to 67 and the case-law cited).
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67. Thus, irrespective of the question whether the Member State may recover interest on the European Union’s own resources — which is a question which does not have to be resolved in the context of the present case — individuals entitled to reimbursement of sums paid unduly in respect of production levies in the sugar sector determined on the basis of an invalid regulation are also entitled to payment of the interest on such sums.
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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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62. It should be observed, however, first, that the proof required to demonstrate the genuine link must not be too exclusive in nature or unduly favour an element which is not necessarily representative of the real and effective degree of connection between the claimant to reduced transport fares and the Member State where the claimant pursues his studies, to the exclusion of all other representative elements (see, to that effect, D’Hoop , paragraph 39, and Stewart , paragraph 95).
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39 However, a single condition concerning the place where the diploma of completion of secondary education was obtained is too general and exclusive in nature. It unduly favours an element which is not necessarily representative of the real and effective degree of connection between the applicant for the tideover allowance and the geographic employment market, to the exclusion of all other representative elements. It therefore goes beyond what is necessary to attain the objective pursued.
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46. In the absence of any indication to the contrary in the order for reference, it must be considered that the case in the main proceedings relates to goods and services intended for all consumers. Accordingly, the relevant public in this case must be deemed to be composed of the average consumer, reasonably well-informed and reasonably observant and circumspect (see Case C-342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 26).
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31 It should be noted first of all that, in paragraphs 8, 9 and 10 of the judgment in Case 14/76 De Bloos v Bouyer [1976] ECR 1497, after observing that the Convention was intended to determine the international jurisdiction of the courts of the Contracting States, to facilitate the recognition of judgments and to introduce an expeditious procedure for securing their enforcement, the Court held that those objectives implied the need to avoid, so far as possible, creating a situation in which a number of courts had jurisdiction in respect of one and the same contract and that Article 5(1) of the Convention could not therefore be interpreted as referring to any obligation whatsoever arising under the contract in question. The Court concluded, in paragraphs 11 and 13 of the same judgment, that, for the purposes of determining the place of performance within the meaning of Article 5(1), the obligation to be taken into account was that which corresponded to the contractual right on which the plaintiff's action was based. It stated in paragraph 14 that, in a case where the plaintiff asserted the right to be paid damages or sought dissolution of the contract on the ground of the wrongful conduct of the other party, that obligation was still that which arose under the contract and the non-performance of which was relied upon to support such claims.
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13 IT FOLLOWS THAT FOR THE PURPOSES OF DETERMINING THE PLACE OF PERFORMANCE WITHIN THE MEANING OF ARTICLE 5 , QUOTED ABOVE , THE OBLIGATION TO BE TAKEN INTO ACCOUNT IS THAT WHICH CORRESPONDS TO THE CONTRACTUAL RIGHT ON WHICH THE PLAINTIFF ' S ACTION IS BASED .
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40. It is clear from those provisions that the notion and level of fair compensation are linked to the harm resulting for the author from the reproduction for private use of his protected work without his authorisation. From that perspective, fair compensation must be regarded as recompense for the harm suffered by the author.
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29. Although adequate monitoring of the old version of the medicinal product remains necessary and may in certain cases mean that information is requested from the importer, it must be pointed out that pharmacovigilance satisfying the relevant requirements of Directive 75/319 as amended can ordinarily be guaranteed for medicinal products that are the subject of parallel imports, such as those in question in the main proceedings, through cooperation with the national authorities of the other Member States by means of access to the documents and data produced by the manufacturer or other companies in the same group, relating to the old version in the Member States in which that version is still marketed on the basis of a marketing authorisation still in force (Ferring , paragraph 38).
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38 Although adequate monitoring of the old version remains necessary and may in certain cases mean that information is requested from the importer, it must be pointed out that pharmacovigilance satisfying the relevant requirements of Directive 75/319 as amended can ordinarily be guaranteed for medicinal products that are the subject of parallel imports, such as those in question in the main proceedings, through cooperation with the national authorities of the other Member States by means of access to the documents and data produced by the manufacturer or other companies in the same group, relating to the old version in the Member States in which that version is still marketed on the basis of a marketing authorisation still in force (see Rhône-Poulenc Rorer and May & Baker, cited above, paragraph 46).
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36. La Cour a précisé que, compte tenu des caractéristiques particulières du système de règlement des différends au sein de l’OMC, qui réserve une place importante à la négociation entre les parties, un opérateur économique ne saurait soutenir devant une juridiction d’un État membre qu’une réglementation de l’Union est incompatible avec certaines règles de l’OMC, alors même que l’ORD a déclaré ladite réglementation incompatible avec celles-ci et que le délai raisonnable prévu dans le cadre du système de règlement des différends mis en place par les accords OMC et accordé à l’Union en vue de se conformer à cette décision a expiré (voir, en ce sens, arrêt Van Parys, précité, point 54).
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70. While it is true that the Court of First Instance thus refrained from considering whether the Commission was entitled to disclose in the contested decision information relating to cartels affecting markets outside the Community and also to price-fixing, it must be held that, even on the assumption that the Commission’s disclosure of that information was contrary to its obligation to respect Dalmine’s business secrets, the fact remains that such an irregularity could lead to the annulment of the contested decision only if it had been established that in the absence of that irregularity the decision would have had a different content (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 91, and Case C‑338/00 P Volkswagen v Commission [2003] ECR I‑9189, paragraphs 163 and 164). As the findings in the contested decision relating to the cartels affecting the markets outside the Community and also price-fixing were characterised by the appellant as superfluous grounds, it cannot in any event maintain that in the absence of those findings the contested decision would have had an essentially different content.
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91 THERE IS NOTHING IN THE COURT'S FILE TO SUPPORT THE PRESUMPTION THAT THE CONTESTED DECISION WOULD NOT HAVE BEEN TAKEN OR WOULD HAVE BEEN DRAWN UP IN A DIFFERENT WAY, IF THE PUBLIC STATEMENTS WHICH ARE THE SUBJECT-MATTER OF THIS SUBMISSION HAD NOT BEEN MADE, WHETHER OR NOT THEY ARE OPEN TO CRITICISM UNDER ANOTHER LEGAL HEAD .
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45. That is the case, in particular, of national measures which make investments in immovable property conditional upon a prior authorisation procedure and thus restrict, by their very purpose, the free movement of capital (see Woningstichting Sint Servatius , paragraph 22 and the case-law cited).
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24 The directive does not specify how the competent authority referred to in Article 9 is appointed. It does not require that that authority be a court or be composed of members of the judiciary. Nor does it require the members of the competent authority to be appointed for a specific period. The essential requirements are, first, that it be clearly established that the authority is to perform its duties in absolute independence and is not to be directly or indirectly subject, in the exercise of its duties, to any control by the authority empowered to take the measures provided for in the directive and, second, that the authority follow a procedure enabling the person concerned, on the terms laid down by the directive, effectively to present his defence (Dzodzi, paragraph 65, and Adoui and Cornuaille, paragraph 16). It is for the national court to determine in each case whether those requirements have been met.
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16 THE DIRECTIVE DOES NOT SPECIFY HOW THE COMPETENT AUTHORITY REFERRED TO IN ARTICLE 9 IS APPOINTED . IT DOES NOT REQUIRE THAT AUTHORITY TO BE A COURT OR TO BE COMPOSED OF MEMBERS OF THE JUDICIARY . NOR DOES IT REQUIRE THE MEMBERS OF THE COMPETENT AUTHORITY TO BE APPOINTED FOR A SPECIFIC PERIOD . THE ESSENTIAL REQUIREMENT IS THAT IT SHOULD BE CLEARLY ESTABLISHED THAT THE AUTHORITY IS TO PERFORM ITS DUTIES IN ABSOLUTE INDEPENDENCE AND IS NOT TO BE DIRECTLY OR INDIRECTLY SUBJECT , IN THE EXERCISE OF ITS DUTIES , TO ANY CONTROL BY THE AUTHORITY EMPOWERED TO TAKE THE MEASURES PROVIDED FOR IN THE DIRECTIVE . PROVIDED THAT THAT REQUIREMENT IS SATISFIED , IT IS NOT CONTRARY TO THE PROVISIONS OF THE DIRECTIVE , OR TO ITS PUPOSE , FOR THE REMUNERATION OF THE MEMBERS OF THE AUTHORITY TO BE CHARGED TO THE BUDGET OF THE DEPARTMENT OF THE ADMINISTRATION OF WHICH THE AUTHORITY EMPOWERED TO TAKE THE DECISION IN QUESTION FORMS PART OR FOR AN OFFICIAL BELONGING TO THAT ADMINISTRATION TO SERVE AS SECRETARY TO THE COMPETENT AUTHORITY .
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49. Pregnant workers and workers who have recently given birth or who are breastfeeding are in an especially vulnerable situation which makes it necessary for the right to maternity leave to be granted to them but which, particularly during that leave, cannot be compared to that of a man or a woman on sick leave (Case C‑411/96 Boyle and Others [1998] ECR I‑6401, paragraph 40).
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34. À cet égard, il ressort de la jurisprudence de la Cour que l’article 6, sous b), de la directive 2003/88 constitue une règle de droit social de l’Union européenne revêtant une importance particulière dont doit bénéficier chaque travailleur en tant que prescription minimale destinée à assurer la protection de sa santé et de sa sécurité, qui impose aux États membres l’obligation de prévoir un plafond de 48 heures pour la durée moyenne hebdomadaire de travail, limite maximale à propos de laquelle il est expressément précisé qu’elle inclut les heures supplémentaires (voir, en ce sens, arrêt Fuß, C‑429/09, EU:C:2010:717, point 33 et jurisprudence citée).
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33. As a preliminary point it should be noted that Article 6(b) of Directive 2003/88 constitutes a rule of EU social law of particular importance from which every worker must benefit, since it is a minimum requirement necessary to ensure protection of his safety and health, which requires the Member States to fix a 48‑hour limit for average weekly working time, a maximum which is expressly stated to include overtime, and from which, in the absence of the implementation in national law of the option provided for in Article 22(1) of the directive, no derogation whatsoever may be made concerning activities such as those of the fire-fighters at issue in the main proceedings, even with the consent of the worker concerned (see, to that effect, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraphs 98 and 100, and Fuß , paragraphs 33 to 35 and 38).
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84. En l’espèce, la requérante n’a fourni à la Cour aucun indice de nature à laisser apparaître que le non-respect, par le Tribunal, d’un délai de jugement raisonnable a pu avoir une incidence sur la solution du litige dont ce dernier était saisi.
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14. Although direct taxation falls within the competence of the Member States, the latter must none the less exercise that competence consistently with Community law (see, inter alia, Case C-80/94 Wielockx [1995] ECR I‑2493, paragraph 16, and Case C-242/03 Weidert and Paulus [2004] ECR I-0000, paragraph 12).
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16 Although direct taxation falls within the competence of the Member States, the latter must none the less exercise that competence consistently with Community law and therefore avoid any overt or covert discrimination by reason of nationality (Case C-279/93 Finanzamt Koeln-Altstadt v Schumacker [1995] ECR I-225, paragraphs 21 and 26).
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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34. Furthermore, whilst it is true that the Court stated, in paragraph 20 of the judgment in Schoonbroodt (EU:C:1998:586), that ‘there is no significant difference, in the context of the main proceedings, between the definitions of the term “standard tanks” used in the various provisions which may prove to be relevant’, the fact remains that the reasoning adopted by the Court in that judgment is founded on its case-law concerning customs matters, and not on the aim of a provision adopted in the context of the internal market.
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20 However, there is no significant difference, in the context of the main proceedings, between the definitions of the term `standard tanks' used in the various provisions which may prove to be relevant.
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86. On the contrary, as is apparent from recital 5 in the preamble to Regulation No 1265/1999, the procedure which the legislature of the European Union has put in place for financial corrections is based on cooperation between the Member State concerned and the Commission, which must be founded on a balance between the rights and obligations of the parties. It would, in those circumstances, be contrary to that requirement for balance between the rights and obligations of the parties in this procedure if the Member State is obliged to respect certain time-limits, while the Commission is not.
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8. If, the Court ruled, the result prescribed by Directive 82/76 could not be achieved by way of an interpretation in conformity with that directive, the Italian Republic would be required to make reparation for loss or damage caused to individuals by its failure to transpose that directive within the prescribed period. In that connection, the Court stated that retroactive and full application of the measures to guarantee correct implementation of Directive 82/76 would suffice, in principle, to remedy the harmful consequences of the delay in that implementation. However, if the beneficiaries established the existence of complementary loss sustained by reason of the fact that they had been unable to benefit at the appropriate time from the financial advantages guaranteed by that directive, such loss would also have to be made good (see Carbonari and Others , paragraphs 52 and 53, and Gozza and Others , paragraphs 38 and 39).
The dispute in the main proceedings and the questions referred for a preliminary ruling
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38 Finally, the Court pointed out that, if the result prescribed by the coordination directive, as amended by Directive 82/76, could not be achieved by interpreting national law in conformity with the directive, Community law required the Italian Republic to make good damage caused by it to individuals, provided that three conditions were fulfilled: the rule of law infringed was intended to confer rights on individuals and the content of those rights could be identified; the breach was sufficiently serious; and there was a direct causal link between the breach of the State's obligation and the damage suffered by the persons affected (Carbonari, paragraph 52).
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63 However, Hi-Tech considers that, in the light of Article 30 of the Treaty, the principle of proportionality has not been observed.
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36. It must be borne in mind that the letter of formal notice from the Commission to a Member State, and then the reasoned opinion issued by the Commission, delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the State concerned to be able to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the EC Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (see, in particular, Case C‑191/95 Commission v Germany [1998] ECR I-5449, paragraph 55, and Case C‑340/96 Commission v United Kingdom [1999] ECR I-2023, paragraph 36).
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55 It is true that the letter of formal notice from the Commission to the Member State and then the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the State concerned to be able to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure under Article 169 (Case 124/81 Commission v United Kingdom [1983] ECR 203, paragraph 6). Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure.
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82. The existence of a restriction on the freedom to provide services having been established, it needs to be examined whether it can be objectively justified.
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10 It must be borne in mind in the first place that the system of remedies set up by the Treaty distinguishes between the remedies provided for in Articles 169 and 170, which permit a declaration that a Member State has failed to fulfil its obligations, and those contained in Articles 173 and 175, which permit judicial review of the lawfulness of measures adopted by the Community institutions, or the failure to adopt such measures. Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of a decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision (Case 226/87 Commission v Greece [1988] ECR 3611, paragraph 14). Nor can it plead the unlawfulness of a directive which the Commission criticizes it for not having implemented.
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14 The system of remedies set up by the Treaty distinguishes between the remedies provided for in Articles 169 and 170, which permit a declaration that a Member State has failed to fulfil its obligations, and those contained in Articles 173 and 175, which permit judicial review of the lawfulness of measures adopted by the Community institutions, or the failure to adopt such measures . Those remedies have different objectives and are subject to different rules . In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot therefore plead the unlawfulness of a decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision .
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37. However, Article 58 of Regulation No 1408/71, as indeed all the provisions of that regulation, must be interpreted in the light of Article 42 EC (see, to that effect, Case C-406/93 Reichling [1994] ECR I-4061, paragraph 21, and Case C‑251/94 Lafuente Nieto [1996] ECR I-4187, paragraphs 33 and 38).
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23
With regard, lastly, to the purpose of Article 132(1)(m) of the directive, it should be recalled that the objective of that provision is to encourage certain activities in the general interest, namely, services closely linked to sport or physical education supplied by non-profit-making organisations to persons taking part in sport or physical education, and, therefore, that provision seeks to promote such participation by large sections of the population (see, to that effect, judgments of 21 February 2013, Žamberk, C‑18/12, EU:C:2013:95, paragraph 23, and of 19 December 2013, Bridport and West Dorset Golf Club, C‑495/12, EU:C:2013:861, paragraph 20).
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20. Cette disposition poursuit l’objectif de favoriser certaines activités d’intérêt général, à savoir des services ayant un lien étroit avec la pratique du sport ou de l’éducation physique qui sont fournis par des organismes sans but lucratif aux pe rsonnes pratiquant le sport ou l’éducation physique. Ainsi, ladite disposition vise à promouvoir une telle pratique par de larges couches de la population (voir arrêt Město Žamberk, précité, point 23).
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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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35. However, that interpretation rests on the link of functional equivalence which exists between the criteria set out in Article 8(1) of Directive 91/414 as transitional measures and those laid down in Article 4 of that directive ( Hogan Lovells International , paragraphs 33 to 46). There is no such link of functional equivalence between the criteria laid down in Article 8(4) of Directive 91/414 and those in Article 4 thereof.
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38. That provision concerns the placing on the market of a plant protection product containing an active substance not yet listed in Annex I to Directive 91/414 and not yet available on the market two years after notification of the directive (a ‘new active substance’). The reasons for that provision are set out in the 14th recital in the preamble to Directive 91/414, which states that ‘the Community procedure should not prevent Member States from authorising for use in their territory for a limited period plant protection products containing an active substance not yet entered on the Community list, provided that the interested party has submitted a dossier meeting Community requirements and the Member State has concluded that the active substance and the plant protection products can be expected to satisfy the Community conditions set in regard to them’.
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37. Similarly, Protocol No 21 is not capable of having any effect whatsoever on the question of the correct legal basis for the adoption of the contested decision (see, to that effect, judgments in Commission v Council , C‑137/12, EU:C:2013:675, paragraphs 73 and 74, and United Kingdom v Council , EU:C:2014:97, paragraph 49).
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24
The Court has ruled, with regard to initial decisions on the freezing of funds, that the wording of Article 1(4) of Common Position 2001/931 refers to the decision taken by a national authority by requiring that precise information or evidence in the file exists which shows that such a decision has been taken. That requirement seeks to ensure that, in the absence of any means at the disposal of the Union to carry out its own investigations regarding the involvement of a person or entity in terrorist acts, the Council’s decision on the initial listing is taken on a sufficient factual basis enabling the Council to conclude that there is a danger that, if preventive measures are not taken, the person or entity concerned may continue to be involved in terrorist activities (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 69, 79 and 81).
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81. Moreover, account should be taken of the purpose of the reference to a national decision, as noted in paragraph 68 above, which seeks to ensure that the decision of the Council be taken on a sufficient factual basis enabling the latter to conclude that there is a danger that, if preventive measures are not taken, the person concerned may continue to be involved in terrorist activities.
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24 IT FOLLOWS THAT THE PROVISION IN QUESTION APPLIES TO ALL TENANCIES OF IMMOVABLE PROPERTY IRRESPECTIVE OF THEIR SPECIAL CHARACTERISTICS .
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39. The localisation of an act of re-utilisation in the territory of the Member State to which the data in question is sent depends on there being evidence from which it may be concluded that the act discloses an intention on the part of its performer to target persons in that territory (see, by analogy, Pammer and Hotel Alpenhof , paragraphs 75, 76, 80 and 92; L’Oréal and Others , paragraph 65; and Donner , paragraphs 27 to 29).
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65. That intention is implicit in certain methods of advertising.
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86. As to the objection, raised by the French Government, that imposition of both a penalty payment and a lump sum in the present case would compromise equal treatment since it was not envisaged in the judgments in Case C-387/97 Commission v Greece and Case C-278/01 Commission v Spain , it is for the Court, in each case, to assess in light of its circumstances the financial penalties to be imposed. Accordingly, the fact that both measures were not imposed in the cases decided previously cannot in itself constitute an obstacle to the imposition of both in a subsequent case, if, having regard to the nature, seriousness and persistence of the breach of obligations established, that appears appropriate.
The Court’s discretion as to the financial penalties that can be imposed
Arguments of the parties and submissions made to the Court
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45. First, in the cases which gave rise to the judgments referred to above, namely Case C‑56/98 Modelo (‘ Modelo I ’) [1999] ECR I‑6427, paragraphs 19 and 23; Case C‑19/99 Modelo (‘ Modelo II ’) [2000] ECR I‑7213, paragraphs 19 and 23; and Längst and Organon Portuguesa (see, respectively, paragraphs 41 to 43 and paragraphs 11 and 17), the fees in question were also initially made by notaries who were civil servants, and then transferred in part to the State.
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19 Notaries prepare a monthly statement of the monies received in payment of their charges. From the total amount thus obtained, the percentage amounts payable to the notary and the members of his staff are deducted. The balance is paid to the Cofre dos Conservadores, Notários e Funcionários de Justiça (Fund for Registrars, Notaries and Officers of the Ministry of Justice; hereinafter `the Fund').
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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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26 Whilst it is true that Article 86 concerns undertakings and may be applied within the limits laid down by Article 90(2) to public undertakings or undertakings vested with exclusive rights or specific rights, the fact nevertheless remains that the Treaty requires the Member States not to take or maintain in force measures which could destroy the effectiveness of that provision (see judgment in Case 13/77 Inno [1977] ECR 2115, paragraphs 31 and 32). Article 90(1) in fact provides that the Member States are not to enact or maintain in force, in the case of public undertakings and the undertakings to which they grant special or exclusive rights, any measure contrary to the rules contained in the Treaty, in particular those provided for in Articles 85 to 94.
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32 THUS ARTICLE 90 PROVIDES THAT , IN THE CASE OF PUBLIC UNDERTAKINGS AND UNDERTAKINGS TO WHICH MEMBER STATES GRANT SPECIAL OR EXCLUSIVE RIGHTS , MEMBER STATES SHALL NEITHER ENACT NOR MAINTAIN IN FORCE ANY MEASURE CONTRARY INTER ALIA TO THE RULES PROVIDED FOR IN ARTICLES 85 TO 94 .
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33 Although the Court of First Instance made a correct finding of fact when it held, in the first and second sentences of paragraph 70 of the judgment under appeal, that Mr Hautem had participated in drawing up the documents found on Mr Yasse's computer, it misclassified their legal nature when it refused to consider that Mr Hautem had played an active role as an interested party and that they constituted commercial acts on Mr Hautem's part, although it made a finding to that effect in respect of the same documents in paragraphs 65 and 77 of the judgment in Yasse v EIB. In reality, Mr Hautem's participation in the creation of those documents may be explained by his personal interest in having a line of credit opened with Crédit Andorrà in the name of the two associates, as may be seen from the fax of the letter dated 19 August 1996 to Crédit Andorrà recommending Mr Hautem and Mr Yasse as customers and the application to open a line of credit sent to Crédit Andorrà by fax of 24 September 1996, the text of which is set out in paragraph 74 of the judgment in Yasse v EIB.
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43. Accordingly, the existence and the degree of unjust enrichment which repayment of a charge which was levied though not due from the aspect of Community law entails for a taxable person can be established only following an economic analysis in which all the relevant circumstances are taken into account (see, inter alia, Case C-147/01 Weber’s Wine World and Others [2003] ECR I-11365, paragraphs 94 to 100).
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95. As that exception is a restriction on a subjective right derived from the Community legal order, it must be interpreted restrictively, taking account in particular of the fact that passing on a charge to the consumer does not necessarily neutralise the economic effects of the tax on the taxable person.
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56
With regard to the requirement relating to the comparability of the situations for the purpose of determining whether there is an infringement of the principle of equal treatment, that requirement must be assessed in the light of all the factors characterising those situations (see, inter alia, judgments of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 25, and of 1 October 2015, O, C‑432/14, EU:C:2015:643, paragraph 31).
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16. The Court subsequently found that provisions concerning certain marketing methods were provisions concerning selling arrangements within the meaning of Keck and Mithouard (see, in particular, Joined Cases C‑401/92 and C‑402/92 Tankstation ’t Heukske and Boermans [1994] ECR I‑2199, paragraphs 12 to 14; TK‑Heimdienst , paragraph 24, and Burmanjer and Others , paragraphs 25 and 26).
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14 The rules in question relate to the times and places at which the goods in question may be sold to consumers. However, they apply to all relevant traders without distinguishing between the origin of the products in question and do not affect the marketing of products from other Member States in a manner different from that in which they affect domestic 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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27 Finally, regarding the fact that the contested condition applies without distinction, according to settled case-law the requirement of equal treatment laid down both in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see in particular Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11; Case C-27/91 URSSAF v Le Manoir [1991] ECR I-5531, paragraph 10; Commission v Luxembourg, cited above, paragraph 9; Case C-419/92 Scholz v Opera Universitaria di Cagliari and Cinza Porcedda [1994] ECR I-505, paragraph 7, and, very recently, O' Flynn, cited above, paragraph 17).
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11 THE RULES REGARDING EQUALITY OF TREATMENT, BOTH IN THE TREATY AND IN ARTICLE 7 OF REGULATION NO 1612/68, FORBID NOT ONLY OVERT DISCRIMINATION BY REASON OF NATIONALITY BUT ALSO ALL COVERT FORMS OF DISCRIMINATION WHICH, BY THE APPLICATION OF OTHER CRITERIA OF DIFFERENTIATION, LEAD IN FACT TO THE SAME RESULT .
THIS INTERPRETATION, WHICH IS NECESSARY TO ENSURE THE EFFECTIVE WORKING OF ONE OF THE FUNDAMENTAL PRINCIPLES OF THE COMMUNITY, IS EXPLICITLY RECOGNIZED BY THE FIFTH RECITAL OF THE PREAMBLE TO REGULATION NO 1612/68 WHICH REQUIRES THAT EQUALITY OF TREATMENT OF WORKERS SHALL BE ENSURED 'IN FACT AND IN LAW '.
IT MAY THEREFORE BE THAT CRITERIA SUCH AS PLACE OF ORIGIN OR RESIDENCE OF A WORKER MAY, ACCORDING TO CIRCUMSTANCES, BE TANTAMOUNT, AS REGARDS THEIR PRACTICAL EFFECT, TO DISCRIMINATION ON THE GROUNDS OF NATIONALITY, SUCH AS IS PROHIBITED BY THE TREATY AND THE REGULATION .
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34. When that comparison is being made, a distinction must be drawn between two categories of vehicles, with the first category comprising those which are sold second-hand during the two calendar years following their manufacture – the year of manufacture being considered to be the first calendar year – and the second category comprising those sold second-hand after that two-year period ( Brzeziński , paragraph 34).
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29. As regards proportionality, the Court recalls that, according the case-law of the Court, that principle requires that measures adopted by European Union institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question, it being understood that, when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑343/09 Afton Chemical [2010] ECR I‑7027, paragraph 45, and Joined Cases C‑581/10 and C‑629/10 Nelson and Others [2012] ECR I‑0000, paragraph 71 and Sky Österreich , paragraph 50).
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71. The principle of proportionality, which is one of the general principles of EU law, requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Joined Cases C-27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569, paragraph 62, and Case C-504/04 Agrarproduktion Staebelow [2006] ECR I-679, paragraph 35).
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73. In respect of the issue of the onus of proving that interference, it must be pointed out, first, that if it were a matter for the national laws of the Member States, the consequence for trade mark proprietors could be that protection would vary according to the legal system concerned. The objective of ‘the same protection under the legal systems of all the Member States’ set out in the ninth recital in the preamble to the Directive, where it is described as fundamental, would not be attained (see, on the subject of the Directive, Zino Davidoff and Levi Strauss , cited above, paragraphs 41 and 42).
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14. It is to be remembered in this regard that it is not for the Court of Justice to rule on the interpretation of provisions of national law but that it must take account, under the division of jurisdiction between the Community Courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the question put to it is set (see, inter alia, Case C-224/02 Pusa [2004] ECR I-0000, paragraph 37).
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37. It should be recalled in this regard that it is not for the Court to rule on the interpretation of provisions of national law and that it must generally take account, under the division of jurisdiction between the Community courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the question put to it is set (Case C-475/99 Ambulanz Glöckner [2001] ECR I-8089, paragraph 10).
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63. Selon une jurisprudence constante de la Cour, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour, quand bien même ils constitueraient une transposition correcte de la règle de droit de l’Union faisant l’objet du recours en manquement (arrêt Commission/Grèce, C‑407/09, EU:C:2011:196, point 16 et jurisprudence citée).
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In that respect, the 2002 Leniency Notice provides, first, in point 32, that normally disclosure, at any time, of documents received in the context of that notice would undermine the protection of the purpose of inspections and investigations within the meaning of Article 4(2) of Regulation No 1049/2001 and, secondly, in point 33, that any written statement made vis-à-vis the Commission in relation to that notice, forms part of its file and may not be disclosed or used for any other purpose than the enforcement of Article 101 TFEU (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 94).
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94
In that regard, the 2002 Leniency Notices provides, first, in point 32, that normally disclosure, at any time, of documents received in the context of that notice would undermine the protection of the purpose of inspections and investigations within the meaning of Article 4(2) of Regulation No 1049/2001 and, secondly, in point 33, that any written statement made vis-à-vis the Commission in relation to that notice, forms part of its file and may not be disclosed or used for any other purpose than the enforcement of Article 101 TFEU.
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29. That exemption is based on practical considerations, in that gambling transactions do not lend themselves easily to the application of VAT, and not, as is the case with certain public interest services supplied in the social sector, on a desire to afford those activities more advantageous VAT treatment (see Case C-89/05 United Utilities [2006] ECR I-6813, paragraph 23, and Case C-58/09 Leo-Libera [2010] ECR I-0000, paragraph 24).
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16 It is further undisputed that the Member State is the sole interlocutor of the Fund (see judgment in Case 310/81 EISS v Commission [1984] ECR 1341, paragraph 15) and that it assumes responsibility in so far as it certifies the accuracy of the facts and accounts in final payment claims and in so far as it may even be required to guarantee that training measures are properly implemented and concluded.
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15 IT FOLLOWS THAT THIS PROCEDURE CREATES A FINANCIAL RELATIONSHIP BETWEEN THE COMMISSION AND THE MEMBER STATE ON THE ONE HAND AND BETWEEN THAT MEMBER STATE AND THE INSTITUTION WHICH IS THE RECIPIENT OF THE FINANCIAL ASSISTANCE ON THE OTHER .
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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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28. In that connection, it should be borne in mind that Directive 2001/23 is intended to safeguard the rights of employees in the event of a change of employer by allowing them to continue to work for the transferee employer on the same conditions as those agreed with the transferor (see, inter alia, Case 324/86 Tellerup (‘Daddy’s Dance Hall’) [1988] ECR 739, paragraph 9, and Case C‑499/04 Werhof [2006] ECR I-2397, paragraph 25).
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9 AS THE COURT HAS ALREADY HELD, MOST RECENTLY IN THE JUDGMENT OF 17 DECEMBER 1987 ( CASE 287/86 NY MOELLE KRO (( 1987 )) ECR 5465 ), THAT THE PURPOSE OF DIRECTIVE 77/187/EEC IS TO ENSURE, SO FAR AS POSSIBLE, THAT THE RIGHTS OF EMPLOYEES ARE SAFEGUARDED IN THE EVENT OF A CHANGE OF EMPLOYER BY ALLOWING THEM TO REMAIN IN EMPLOYMENT WITH THE NEW EMPLOYER ON THE TERMS AND CONDITIONS AGREED WITH THE TRANSFEROR . THE DIRECTIVE IS THEREFORE APPLICABLE WHERE, FOLLOWING A LEGAL TRANSFER OR MERGER, THERE
IS A CHANGE IN THE NATURAL OR LEGAL PERSON WHO IS RESPONSIBLE FOR CARRYING ON THE BUSINESS AND WHO BY VIRTUE OF THAT FACT INCURS THE OBLIGATIONS OF AN EMPLOYER VIS-A-VIS EMPLOYEES OF THE UNDERTAKING, REGARDLESS OF WHETHER OR NOT OWNERSHIP OF THE UNDERTAKING IS TRANSFERRED .
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84. Conformément à une jurisprudence constante de la Cour, la motivation d’un arrêt doit faire apparaître de façon claire et non équivoque le raisonnement du Tribunal, de manière à permettre aux intéressés de connaître les justifications de la décision prise et à la Cour d’exercer son contrôle juridictionnel (voir, notamment, arrêts France Télécom/Commission, C‑202/07 P, EU:C:2009:214, point 29 et jurisprudence citée, ainsi que Commission/Portugal, C‑292/11 P, EU:C:2014:3, point 72).
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15 It must be pointed out that, according to settled case-law (Case 34/82 Peters v ZNAV [1983] ECR 987, paragraphs 9 and 10, Case 9/87 Arcado v Haviland [1988] ECR 1539, paragraphs 10 and 11, and Case C-26/91 Handte v Traitements Mécano-Chimiques des Surfaces [1992] ECR I-3967, paragraph 10), the phrase `matter relating to a contract' in Article 5(1) of the Convention is to be interpreted independently, having regard primarily to the objectives and general scheme of the Convention, in order to ensure that it is applied uniformly in all the Contracting States; that phrase cannot therefore be taken to refer to how the legal relationship in question before the national court is classified by the relevant national law.
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11 CONSEQUENTLY, THE CONCEPT OF "MATTERS RELATING TO A CONTRACT" IS TO BE REGARDED AS AN INDEPENDENT CONCEPT WHICH, FOR THE PURPOSE OF THE APPLICATION OF THE CONVENTION, MUST BE INTERPRETED BY REFERENCE PRINCIPALLY TO THE SYSTEM AND OBJECTIVES OF THE CONVENTION IN ORDER TO ENSURE THAT IT IS FULLY EFFECTIVE .
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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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83. In that regard, it should first be observed that, although a contention such as that contained in the fourth ground of appeal – according to which the General Court misinterpreted the wording of the 2002 Leniency Notice – may have an impact on the findings of fact made by the General Court, it is, contrary to what is maintained by the Commission, a point of law amenable, as such, to review by the Court of Justice (see, to that effect, Quinn Barlo and Others v Commission , paragraph 37).
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37. Accordingly, although the alleged infringement of the presumption of innocence in the determination of the duration of the infringement may have an impact on the findings of fact made by the General Court, it is, contrary to what is maintained by the Commission, a point of law amenable, as such, to review by the Court of Justice. The same principle applies with regard to the complaint concerning the grounds of the judgment under appeal (see, inter alia, Case C‑401/96 P Somaco v Commission [1998] ECR I‑2587, paragraph 53, and Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 77).
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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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98. As regards the appellants’ argument concerning the Commission’s practice in previous decisions, suffice it to note that this does not serve as a legal framework for setting fines in competition matters, since the Commission enjoys a wide discretion in that area and, when exercising that discretion, is not bound by its past assessments (see, in particular, Dansk Rørindustri and Others v Commission , paragraphs 209 to 213, and Archer Daniels Midland v Commission , paragraph 82).
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82. As regards the fourth part of that ground, the Court of First Instance recalled, in paragraphs 108 to 110 of the judgment under appeal, the settled case-law that the Commission’s practice in previous decisions does not serve as a legal framework for fines imposed in competition matters, since the Commission enjoys a wide discretion in the area of setting fines and is not bound by assessments which it has made in the past ( Dansk Rørindustri and Others v Commission , paragraphs 209 to 213).
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36. It must be stated, in that regard, that any insurance transaction has, by nature, a link with the item it covers. It follows that there is necessarily a connection between the leased item and the relevant insurance. Nonetheless, such a connection is not sufficient in itself to determine whether or not there is a single complex transaction for VAT purposes. If any insurance transaction were subject to VAT because the services relating to the item it covers were subject to VAT, the very aim of Article 135(1)(a) of the VAT Directive, that is the exemption of insurance transactions would be called into question.
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52. Il y a lieu de souligner, enfin, que, l’article 233 CE n’obligeant l’institution dont émane l’acte annulé que dans les limites de ce qui est nécessaire pour assurer l’exécution de l’arrêt d’annulation (voir arrêt du 6 mars 2003, Interporc/Commission, C‑41/00 P, Rec. p. I‑2125, point 30), la procédure visant à remplacer un tel acte peut ainsi être reprise au point précis auquel l’illégalité est intervenue (arrêts du 12 novembre 1998, Espagne/Commission, C‑415/96, Rec. p. I‑6993, point 31, et Industrie des poudres sphériques/Conseil, précité, point 82).
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30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56).
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33. Conformément à la règle générale énoncée à l’article 73 de la directive TVA, la base d’imposition pour la livraison d’un bien ou la prestation d’un service, effectuées à titre onéreux, est constituée par la contrepartie réellement reçue à cet effet par l’assujetti. Cette contrepartie constitue la valeur subjective, à savoir réellement perçue, et non une valeur estimée selon des critères objectifs (voir, notamment, arrêts du 5 février 1981, Coöperatieve Aardappelenbewaarplaats, 154/80, Rec. p. 445, point 13, et du 26 avril 2012, Balkan and Sea Properties et Provadinvest, C‑621/10 et C‑129/11, point 43).
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40. As regards such a weaker position, Article 6(1) of Directive 93/13 provides that unfair terms are not to be binding on the consumer. That is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (see judgment in Sánchez Morcillo and Abril Garcia , C‑169/14, EU:C:2014:2099, paragraph 23 and the case-law cited).
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23. As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on the consumer. That is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (judgment in Banco Español de Crédito , C‑618/10, EU:C:2012:349, paragraph 40 and case-law cited).
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8 HOWEVER , AS THE REGULATION DOES NOT CONTAIN ANY TRANSITIONAL PROVISIONS , IT IS ADVISABLE TO HAVE RECOURSE TO GENERALLY RECOGNIZED PRINCIPLES OF INTERPRET- ATION IN ORDER TO DETERMINE ITS EFFECT RATIONE TEMPORIS , HAVING REGARD BOTH TO WORDING OF THE REGULATION AND TO ITS OBJECTIVES AND GENERAL SCHEME .
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44. En outre, il y a lieu de relever que l’article 36 de l’accord EEE est analogue à l’article 56 TFUE, de telle sorte que les considérations énoncées aux points 40 à 43 du présent arrêt s’appliquent, en principe, également à l’article 36 de l’accord EEE (voir, notamment, arrêts Commission/Belgique, C‑383/10, EU:C:2013:364, point 71, et Commission/Espagne, C‑678/11, EU:C:2014:2434, point 66).
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66. It should be noted that Article 36 of the EEA Agreement is similar to Article 56 TFEU. Therefore, the restriction of the freedom to provide services found in paragraph 40 above must, in principle, be regarded as contrary to Article 36 too.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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37. It follows from the Court’s settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes. The objective characteristics and properties of products must be capable of being assessed at the time of customs clearance (see, to that effect, judgment in Panasonic Italia and Others , C‑472/12, EU:C:2014:2082, paragraphs 35 and 36 and the case-law cited).
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35. It is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, RUMA , C‑183/06, EU:C:2007:110, paragraph 27, and Medion and Canon Deutschland , C‑208/06 and C‑209/06, EU:C:2007:553, paragraph 34).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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12. En outre, s’agissant de la question soulevée par le Royaume de Suède quant à l’interprétation de l’article 8 de la directive, il convient de rappeler que, selon une jurisprudence constante, un État membre ne saurait invoquer des difficultés liées à l’interprétation d’une directive pour en différer la transposition au-delà des délais prévus (arrêt du 20 mars 2003, Commission/Allemagne, C‑135/01, Rec. p. I‑2837, point 25 et jurisprudence citée).
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25. Second, a Member State cannot rely on difficulties in interpreting a directive in order to delay transposing it until after the prescribed period has expired (Case C-316/99 Commission v Germany [2001] ECR I-2037, paragraph 9).
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62. Indeed, it must be accepted that a simplification measure implies, by definition, a more general approach than that of the rule which it replaces and thus will not necessarily reflect the exact situation of each taxable person.
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46 So, if the French Republic did adopt or maintain stricter measures than those laid down by Regulation No 3626/82 or No 338/97, it is possible that the referring court may need to consider the compatibility of the prohibition of commercial use of the species at issue as prescribed by the French legislation, in particular the Guyane decree, with Articles 30 and 36 of the Treaty. That would be the case in so far as that legislation applied to situations linked to the importation of goods in intra-Community trade (see, inter alia, Case 298/87 Smanor [1988] ECR 4489, paragraphs 7 and 8, and Case C-448/98 Guimont [2000] ECR I-10663, paragraph 21).
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7 The French Government argues that the situation from which the main proceedings originated does not fall within Article 30 et seq . of the Treaty, as it involves the application of French law to a French company manufacturing and marketing deep-frozen "yoghurt" on French territory, and that, consequently, there is no need to reply to this part of the question .
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48. The Court has held, second, that, while it is true that an invoice has an important documentary function because it may contain verifiable data, there are circumstances in which the data may be legitimately established by means other than by an invoice and where the requirement to have an invoice in full conformity with the provisions of Directive 2006/112 would be capable of affecting the right of a taxable person to deduct (see, to that effect, Case C‑90/02 Bockemühl [2004] ECR I‑3303, paragraphs 51 and 52).
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44. The judgment in Radiosistemi , cited above (particularly paragraphs 47 and 66), states that such a requirement of national law is incompatible with Community law which has direct effect, whether it be Article 28 EC or the provisions of the Directive which acquire direct effect after the expiry of the time-limit for its implementation.
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47 Consequently, the first question should be answered as follows: Article 28 EC precludes legislation and/or national administrative practice which - in the context of a system where matters concerning conformity assessment procedures for the purposes of placing radio equipment on the market and putting such equipment into service have been delegated to the administrative authorities, to be decided at their discretion - prevents economic operators from importing, marketing or holding in stock, with a view to selling, radio equipment that has not undergone national type-approval, and which does not admit other forms of evidence, equally reliable but less burdensome to obtain, to prove that such equipment is in conformity with requirements concerning the proper use of the radio frequencies authorised under national law.
The second question
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30. In so far as those royalties are intended to remunerate composers of musical works protected by copyright with respect to the television broadcast of those works, it is necessary to take into consideration the particular nature of that right.
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29. Furthermore, the Court has already held that where a Member State has a system for preventing or mitigating a series of charges to tax or economic double taxation for dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way (see, to that effect, Case C-315/02 Lenz [2004] ECR I-7063, paragraphs 27 to 49; Manninen , paragraphs 29 to 55, and Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 55).
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41. Moreover, contrary to what the Austrian and Danish Governments argue, the level of taxation on companies established in another Member State is not relevant in relation to Austrian tax legislation when assessing the compatibility of national legislation with Articles 73b and 73d(1) and (3) of the Treaty.
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20 Those arguments cannot be upheld. As regards the alleged lack of international jurisdiction of the Italian courts and, accordingly, of the Tribunale Civile e Penale di Ravenna, it should be pointed out that it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in conformity with the rules of domestic law governing the organization of the courts and their procedure (see, in particular, Case C-39/94 SFEI and Others v La Poste and Others [1996] ECR I-3574, paragraph 24). The position is the same where, as in this case, international jurisdiction falls to be determined on the basis of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 77), unless the provisions of that convention are expressly made the subject of the reference for a preliminary ruling.
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34. As regards the personal scope of Regulation No 1408/71, it is indeed apparent from the the case-law of the Court of Justice that, where it is a German institution that is competent to grant family benefits in accordance with Title III, Chapter 7, of Regulation No 1408/71, the definition appearing in Article 1(a) of that regulation is ousted by that contained in Annex I, point I, D (‘Germany’), of that regulation (see Case C‑194/96 Kulzer [1998] ECR I‑895, paragraph 35), so that only persons who, unlike Mrs Schwemmer, are compulsorily insured under one of the schemes mentioned in Annex I, point I, D, of Regulation No 1408/71 may be regarded as ‘employed persons’ or ‘self-employed persons’ within the meaning of Article 1(a)(ii) of that regulation (see to that effect, in particular, Joined Cases C‑4/95 and C‑5/95 Stöber and Piosa Pereira [1997] ECR I‑511, paragraphs 29 to 36; Case C‑266/95 Merino García [1997] ECR I‑3279, paragraphs 24 to 26; Case C‑85/96 Martínez Sala [1998] ECR I‑2691, paragraphs 42 and 43; and Case C‑262/96 Sürül [1999] ECR I‑2685, paragraph 89).
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35 The term `employed person', which appears in Article 73 of the Regulation, is defined in Article 1(a). However, that definition is displaced by the definition in Point I.C of Annex I to the Regulation when the competent institution for granting family benefits is, in accordance with Chapter 7 of Title III of the Regulation, a German institution.
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52 When determining whether or not State aid is compatible, such social aspects are, admittedly, liable to be taken into account by the Commission, but only as part of an overall assessment which includes a large number of considerations of various kinds, linked in particular to the protection of competition, regional development, the promotion of culture or again to the protection of the environment.
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32
In that context, the Court held that Article 4(1)(a) of Directive 2000/60 does not simply set out, in programmatic terms, mere management-planning objectives, but imposes an obligation to prevent deterioration of the status of bodies of water that has binding effects on Member States once the ecological status of the body of water concerned has been determined, at each stage of the procedure prescribed by that directive and, in particular, during the process of granting permits for particular projects pursuant to the system of derogations set out in Article 4 (see, to that effect, judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraphs 43 and 48).
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43. These matters confirm the interpretation that Article 4(1)(a) of Directive 2000/60 does not simply set out, in programmatic terms, mere management-planning objectives, but has binding effects, once the ecological status of the body of water concerned has been determined, at each stage of the procedure prescribed by that directive.
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37 In its third submission, the Italian Government disputes the Commission' s power to impose a flat-rate reduction of 10% on the amount of aid paid.
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36 Second, as far as occupational pension schemes are concerned, the Court held in paragraphs 44 and 45 of Barber, cited above, that by reason of overriding considerations of legal certainty, the direct effect of Article 119 of the Treaty could not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of that judgment, namely 17 May 1990, except in the case of claimants who had before that date initiated legal proceedings or raised an equivalent claim.
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28 It must therefore be concluded that, unlike the benefits awarded by national statutory social security schemes, a pension paid under a contracted-out scheme constitutes consideration paid by the employer to the worker in respect of his employment and consequently falls within the scope of Article 119 of the Treaty .
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48. Although that is the position where tax fraud is committed by the taxable person himself, it is also the case where a taxable person knew, or should have known, that, by his purchase, he was taking part in a transaction connected with VAT fraud. In such circumstances, the taxable person concerned must, for the purposes of the Sixth Directive, be regarded as a participant in such fraud, whether or not he profits from the resale of the goods or the use of the services in the context of the taxable transactions subsequently carried out by him (see judgments in Bonik , C‑285/11, EU:C:2012:774, paragraphs 38 and 39 and the case-law cited, and in Maks Pen , C‑18/13, EU:C:2014:69, paragraph 27).
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