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46. Thus, the General Court was correct in holding, in paragraph 105 of the judgment under appeal, that Articles 17, 7, 10 and 11 of the Charter secure in EU law the protection conferred by the provisions of the ECHR relied on by the appellants and that it is appropriate, in this instance, to base the examination of the validity of the basic regulation solely on the fundamental rights guaranteed by the Charter (see, to this effect, judgments in Otis and Others , C‑199/11, EU:C:2012:684, paragraph 47, and Ziegler v Commission , C‑439/11 P, EU:C:2013:513, paragraph 126 and the case-law cited).
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47. Article 47 of the Charter secures in EU law the protection afforded by Article 6(1) of the ECHR. It is necessary, therefore, to refer only to Article 47 (Case C‑386/10 P Chalkor v Commission [2011] ECR I‑13085, paragraph 51).
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8 THE WORDING OF THE REGULATION DOES NOT , THEREFORE , PREVENT MEMBER STATES EITHER FROM CARRYING OUT SUCH INSPECTIONS FREE OF CHARGE OR FROM REQUIRING THE UNDERTAKINGS IN QUESTION TO REIMBURSE THE EXPENDITURE WHICH SUCH INSPECTIONS ENTAIL .
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31
Such an interpretation is consistent with the objective pursued by the directives in this area of attaining the widest possible opening up of public contracts to competition to the benefit not only of economic operators but also of contracting authorities. In addition, that interpretation also facilitates the involvement of small and medium-sized undertakings in the contracts procurement market, an aim also pursued by Directive 2004/18, as stated in recital 32 thereof (judgment of 10 October 2013, Swm Costruzioni 2 and MannocchiLuigino, C‑94/12, EU:C:2013:646, paragraph 34).
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34. Such an interpretation is consistent with the objective pursued by the directives in this area of attaining the widest possible opening-up of public contracts to competition to the benefit not only of economic operators but also contracting authorities (see, to that effect, Case C‑305/08 CoNISMa [2009] ECR I‑12129, paragraph 37 and the case-law cited). In addition, as the Advocate General noted at points 33 and 37 of his Opinion, that interpretation also facilitates the involvement of small- and medium-sized undertakings in the contracts procurement market, an aim also pursued by Directive 2004/18, as stated in recital 32 thereof.
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16 LIABILITY IN TORT , DELICT OR QUASI-DELICT CAN ONLY ARISE PROVIDED THAT A CAUSAL CONNEXION CAN BE ESTABLISHED BETWEEN THE DAMAGE AND THE EVENT IN WHICH THAT DAMAGE ORIGINATES .
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52
However, it must be recalled that the right to a refund, within the meaning of the case-law cited in paragraph 50 of the present judgment, is concerned not only with the amounts paid to the Member State by way of unlawful charges but also any deducted amount the refund of which is essential in restoring the equal treatment required by the provisions of the FEU Treaty on the freedoms of movement (see, by analogy, judgments of 8 March 2001, Metallgesellschaft and Others, C‑397/98 and C‑410/98, EU:C:2001:134, paragraph 87; of 12 December 2006, Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 205, and of 19 July 2012, Littlewoods Retail and Others, C‑591/10, EU:C:2012:478, paragraph 25), including, consequently, the amounts due to the individual in respect of a tax credit of which he has been deprived under the national legislation precluded by EU law.
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87 In the main proceedings, however, the claim for payment of interest covering the cost of loss of the use of the sums paid by way of ACT is not ancillary, but is the very objective sought by the plaintiffs' actions in the main proceedings. In such circumstances, where the breach of Community law arises, not from the payment of the tax itself but from its being levied prematurely, the award of interest represents the reimbursement of that which was improperly paid and would appear to be essential in restoring the equal treatment guaranteed by Article 52 of the Treaty.
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17. In such a situation, and as the Court made clear in paragraph 30 of Britannia Alloys & Chemicals v Commission (EU:C:2007:326), the Commission is entitled to refer to another business year in order to be able to make a correct assessment of the financial resources of that undertaking and to ensure that the fine has a sufficient and proportionate deterrent effect.
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34. It must be held that the preferential system granted to UHP, in terms of the number of branch pharmacies allowed and the conditions for the operating licences of those branches, is likely to deprive a private pharmacist of the right to set up a branch pharmacy in one of the 16 geographical areas in which the UHP has established a branch, which is likely to render less attractive the pursuit, by private pharmacists from other Member States, of their activities in Finland through a permanent establishment. The fact that the restrictive effects of that preferential system affect home country nationals and those from other Member States alike is not such as to exclude that preferential system from the scope of Article 49 TFEU (see, to that effect, Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraphs 24 and 25).
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24 The Netherlands Government maintains that the restrictive effects of that preferential system affect service undertakings established in the Netherlands other than the NOPB and undertakings established in other Member States to the same extent.
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17 IN THOSE PROCEDURAL CIRCUMSTANCES IT MUST BE HELD THAT THE TWO ACTIONS HAVE THE SAME SUBJECT-MATTER, FOR THAT CONCEPT CANNOT BE RESTRICTED SO AS TO MEAN TWO CLAIMS WHICH ARE ENTIRELY IDENTICAL .
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19. It is apparent from the Court’s case-law that freedom of establishment is hindered if, under a Member State’s legislation, a resident company having a subsidiary or a permanent establishment in another Member State or in another State that is party to the EEA Agreement suffers a disadvantageous difference in treatment for tax purposes compared with a resident company having a permanent establishment or a subsidiary in the first Member State (see to this effect, in particular, the judgments in Papillon , C‑418/07, EU:C:2008:659, paragraphs 16 to 22, and Argenta Spaarbank , C‑350/11, EU:C:2013:447, paragraphs 20 to 34).
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26. The Belgian Government submits, in this regard, that the difference in treatment arising from the national legislation at issue in the main proceedings is not, however, a restriction on freedom of establishment since, first, that difference in treatment does not result in adverse consequences for the company with a permanent establishment in a Member State other than the Kingdom of Belgium and, second, if such adverse consequences were to be established, they would be due to the exercise in parallel by a number of Member States of their fiscal sovereignty.
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62. À cet égard, il convient de rappeler que la notion de «dissuasion» constitue l’un des éléments à prendre en compte dans le calcul du montant de l’amende. Il est en effet de jurisprudence constante que les amendes infligées en raison de violations de l’article 81 CE, telles que prévues à l’article 23, paragraphe 2, du règlement n° 1/2003, ont pour objet de réprimer les actes illégaux des entreprises concernées ainsi que de dissuader tant les entreprises en question que d’autres opérateurs économiques de violer, à l’avenir, les règles du droit de la concurrence de l’Union. Or, le lien entre, d’une part, la taille et les ressources globales des entreprises et, d’autre part, la nécessité d’assurer un effet dissuasif à l’amende ne saurait être contesté (voir arrêts du 29 juin 2006, Showa Denko/Commission, C-289/04 P, Rec. p. I-5859, point 16, et du 17 juin 2010, Lafarge/Commission, C‑413/08 P, Rec. p. I‑5361, point 102).
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72. In view of the foregoing, the distortion of the facts which vitiates the judgment under appeal does not affect the operative part of that judgment, with the result that it need not be annulled on that ground (see, to that effect, Joined Cases C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission [2006] ECR I-0000, paragraphs 133 and 134).
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133. It follows from the above considerations taken as a whole that the Court of First Instance vitiated its judgment by erring in law and distorting the facts of the case in so far as it, contrary to the force of res judicata with absolute effect resulting from the BAI v Commission judgment, examined the ground of appeal alleging infringement of Article 87(1) EC and in so far as it held that the new agreement and the original agreement constituted a single grant of aid, implemented in 1992.
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32 As is clear from the third and sixth recitals in the preamble to the Regulation, the objective pursued by the legislature is to protect the natural composition of milk and milk products in the interests of Community producers and consumers and to avoid any confusion in consumers' minds between milk products and the other food products, including those consisting partly of milk components.
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26 In this connection it is appropriate to recall the finding of the Court of Justice in relation to an indemnity provided for by Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (OJ 1975 L 194, p. 23). The indemnity in question was financed in accordance with the principle that the polluter pays, in the case in point by way of a charge imposed on products transformed into waste oils, or on waste oils, not exceeding the actual yearly costs. The indemnity could be granted to undertakings collecting and/or disposing of waste oils as compensation for their obligations to collect and/or dispose of the products offered to them by holders. The Court held that an indemnity of that type did not constitute aid within the meaning of Articles 92 et seq. of the Treaty, but rather consideration for the services performed by the collection or disposal undertakings (Case 240/83 ADBHU [1985] ECR 531, paragraph 18).
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18 IN THAT RESPECT THE COMMISSION AND THE COUNCIL , IN THEIR OBSERVATIONS , RIGHTLY ARGUE THAT THE INDEMNITIES DO NOT CONSTITUTE AID WITHIN THE MEANING OF ARTICLES 92 ET SEQ OF THE EEC TREATY , BUT RATHER CONSIDERATION FOR THE SERVICES PERFORMED BY THE COLLECTION OR DISPOSAL UNDERTAKINGS .
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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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33. It is also settled case-law that the global appreciation of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see, to that effect, SABEL , paragraph 23; Lloyd Schuhfabrik Meyer , paragraph 25; Medion , paragraph 28; OHIM v Shaker , paragraph 35; and Nestlé v OHIM , paragraph 34).
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35. According to further settled case-law, the global assessment of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see SABEL , paragraph 23; Lloyd Schuhfabrik Meyer , paragraph 25; Medion , paragraph 28; Mülhens v OHIM , paragraph 19; and order in Matratzen Concord v OHIM , paragraph 29).
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45
Accordingly, the term ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision, must be interpreted as meaning that a ministry of a Member State, such as the Lithuanian Ministry of Justice, cannot be covered by that term, meaning that the European arrest warrant issued by it with a view to executing a judgment imposing a custodial sentence cannot be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of the Framework Decision.
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27. Also, according to settled case-law of the Court, the difference between a right in rem and a right in personam is that the former, existing in corporeal property, has effect erga omnes, whereas the latter can be claimed only against the debtor (judgment in Weber , C‑438/12, EU:C:2014:212, paragraph 43 and the case-law cited).
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43. Similarly, under reference to the Schlosser Report on the association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice (OJ 1979 C 59/71, p. 166), the Court has held that the difference between a right in rem and a right in personam is that the former, existing in an item of property, has effect erga omnes , whereas the latter can be claimed only against the debtor (see order in Case C‑518/99 Gaillard [2001] ECR I‑2771, paragraph 17).
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42. Accordingly, under Article 3(3) of Regulation No 2988/95, Member States can, first, continue to apply longer limitation periods which existed at the date when that regulation was adopted and, secondly, introduce new rules on limitation providing for such periods after that date.
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26
Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (see, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26).
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26. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment in E.ON Energie v Commission , C‑89/11 P, EU:C:2012:738, paragraph 62).
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58. The nature of the arguments that the scheme for collecting tax by means of tax stamps may lead to a variation in the tax due at the final consumption stage is not such as to support the conclusion that that scheme might affect, to a non-negligible extent, the amount of tax due at the final consumption stage. Such a scheme does not therefore disregard the criteria set out in Article 27(1) of the Sixth Directive.
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84
Moreover, it is clear from equally settled case-law of the Court that the alleged failure to refer to a specific provision of the Treaty, such as in this case Article 216(1) TFEU, as raised by the Federal Republic of Germany, does not constitute an infringement of essential procedural requirements if the legal basis for a measure may be determined from other parts of the measure, provided that the parties concerned and the Court are not left uncertain as to the specific legal basis (see, to that effect, judgment of 25 October 2017, Commission v Council (WRC‑15), C‑687/15, EU:C:2017:803, paragraph 55 and the case-law cited).
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55
Moreover, while it is true that failure to refer to a specific provision of the Treaty need not necessarily constitute an infringement of essential procedural requirements if the legal basis for a measure may be determined from other parts of the measure, as claimed by the Council, such explicit reference is, however, indispensable where, in its absence, the parties concerned and the Court are left uncertain as to the specific legal basis (see, inter alia, judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 48).
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21. In particular, the fact that a third party assisting the person reliant on care is personally in receipt of such a benefit is, as PAX points out, of no consequence on account of the fact that the person whose reliance on care justifies the grant of the whole of the benefit is thereby benefiting from a scheme designed to help him to receive, in the most favourable conditions possible, the care which his condition requires. That benefit is thus fully covered by that branch of sickness insurance. The same may be said, moreover, with regard to the care allowance proper when it is used in whole or in part to remunerate the third party assisting the person reliant on care, as is Ms Barth’s case.
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35. Having regard to the considerations set out in paragraphs 29 and 30 of this judgment, it is for the competent national court to establish revocation, if appropriate, linked in particular to such a failure, including in the context of proceedings seeking protection of the exclusive rights conferred by Article 5 of Directive 89/104, and which may have been brought late by the proprietor of the mark. If taking account of revocation for the purposes of Article 12(2) in infringement proceedings were solely a matter for the national laws of the Member States, the consequence for trade mark proprietors might be that protection would vary depending on the applicable law. 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 onus of proving infringement of the proprietor’s exclusive rights, Case C-405/03 Class International [2005] ECR I-0000, paragraphs 73 and 74).
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74. It must then be stated that, in a situation such as the one in the main proceedings, the onus of proving interference must lie with the trade mark proprietor who alleges it. If that is proven, it is then for the trader sued to prove the existence of the consent of the proprietor to the marketing of the goods in the Community (see, on the subject of the Directive, Zino Davidoff and Levi Strauss , cited above, paragraph 54).
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27. It cannot, however, be inferred from the judgment in X Holding (C‑337/08, EU:C:2010:89) that any difference in treatment between companies belonging to a tax-integrated group, on the one hand, and companies not belonging to such a group, on the other, is compatible with Article 49 TFEU. In that judgment, the Court merely examined the residence condition as a condition of access to a tax integration scheme, and held that that condition was justified, taking into account the fact that such a scheme allows losses to be transferred within the tax-integrated group.
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51. In those circumstances, it should be borne in mind 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 its objectives and the context in which it occurs (see, to that effect, Case C‑466/07 Klarenberg EU:C:2009:85, paragraph 37, and Case C‑84/12 Koushkaki EU:C:2013:862, paragraph 34).
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37. At the outset, it should be borne in mind that, according to settled case‑law, in interpreting a provision of Community 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 (see, inter alia, Case C‑301/98 KVS International [2000] ECR I‑3583, paragraph 21; Case C‑53/05 Commission v Portugal [2006] ECR I‑6215, paragraph 20; and Case C‑298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbände [2008] ECR I-0000, paragraph 15).
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68. The jobseeker’s allowance introduced by the 1995 Act is a social security benefit which replaced unemployment benefit and income support, and requires in particular the claimant to be available for and actively seeking employment and not to have income exceeding the applicable amount or capital exceeding a specified amount.
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18. Moreover, in certain circumstances, several formally distinct services, which could be supplied separately and thus give rise, in turn, to taxation or exemption, must be considered to be a single transaction when they are not independent. Such is the case for example, where, in the course of a purely objective analysis, it is found that there is a single supply in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service. In particular, a service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied ( Part Service , paragraphs 51 and 52 and case-law cited).
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52. Such is the case for example, where, in the course of a purely objective analysis, it is found that there is a single supply in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service (see, to that effect, CPP , paragraph 30 and Levob Verzerkeringen and OV Bank , paragraph 21). In particular, a service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied ( CPP , paragraph 30 and the facts of the dispute in the main proceedings giving rise to that judgment).
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57 According to the information provided by the referring court, the United Kingdom legislation, before its amendment by the 1993 Act establishing the national lottery, pursued the following objectives: to prevent crime and to ensure that gamblers would be treated honestly; to avoid stimulating demand in the gambling sector which has damaging social consequences when taken to excess; and to ensure that lotteries could not be operated for personal and commercial profit but solely for charitable, sporting or cultural purposes.
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24. It is therefore necessary to examine whether the application of those national provisions, whilst taking account of the general context of national law of which they form a part (see, to that effect, Case C‑312/93 Peterbroeck [1995] ECR I‑4599, paragraph 14; Joined Cases C‑430/93 and C‑431/93 van Schijndel and van Veen [1995] ECR I‑4705, paragraph 19; and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 33), is ultimately irreconcilable with the requirement of immediate and effective recovery of aid, as provided for in Article 14(3) of Regulation No 659/1999 and as interpreted in the light of the guidance set out in the case-law referred to in paragraphs 21 and 22 above.
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33. As regards the principle of effectiveness, it is clear from the Court’s case-law that each case which raises the question whether a national procedural provision renders the exercise of rights conferred by the Community legal order on individuals impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see, to that effect, Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 14, and Van Schijndel and van Veen , paragraph 19).
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25 IT SHOULD BE OBSERVED THAT THE REQUIREMENTS LAID DOWN BY THE TREATY REGARDING THE FREE MOVEMENT OF GOODS APPLY EQUALLY TO ALL THE AUTHORITIES OF A MEMBER STATE, WHETHER THEY BE JUDICIAL OR ADMINISTRATIVE BODIES .
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106. However, for reasons explained more fully by the Advocate General in points 201 to 204 of his Opinion, Turkish lorry drivers like Mr Abatay and Others, who are employed by an undertaking such as that described in the previous paragraph, may also invoke the protection of Article 41(1) (see, to that effect, for comparison, Case C-350/96 Clean Car Autoservice [1998] ECR I-2521, paragraphs 19 to 21). The paid employees of the provider of services are indispensable to enable him to provide his services.
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20 It must further be noted that, in order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer's entitlement to engage them in accordance with the rules governing freedom of movement for workers.
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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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41. The Court deduced therefrom, in order to establish whether the liability of a service provider could be limited under Article 14 of Directive 2000/31, that it was necessary to examine whether the role it plays is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores (see, to that effect, the judgments in Google France and Google , EU:C:2010:159, paragraph 114, and L’Oréal and Others , C‑324/09, EU:C:2011:474, paragraph 113).
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113. That is not the case where the service provider, instead of confining itself to providing that service neutrally by a merely technical and automatic processing of the data provided by its customers, plays an active role of such a kind as to give it knowledge of, or control over, those data ( Google France and Google , paragraphs 114 and 120).
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14 THE FIRST PART ASKS WHAT RATE SHOULD BE APPLIED TO IMPORTED PRODUCTS WHERE A SYSTEM OF TAXATION AT DIFFERENT RATES HAS BEEN FOUND TO BE INCOMPATIBLE WITH COMMUNITY LAW . SINCE COMMUNITY LAW , AS IT STANDS AT PRESENT , DOES NOT RESTRICT THE FREEDOM OF MEMBER STATES REGARDING THE FIXING OF RATES OF TAX IN THIS RESPECT , IT FOLLOWS FROM ARTICLE 95 THAT THE RATE TO BE APPLIED TO IMPORTED PRODUCTS MUST BE FIXED IN SUCH A MANNER AS TO ABOLISH THE MARGIN OF DISCRIMINATION OR PROTECTION WHICH IS PROHIBITED BY THE TREATY .
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73. Next, it should be borne in mind that, under Article 47 of the Charter of Fundamental Rights of the European Union, the principle of effective judicial protection does not afford a right of access to a second level of jurisdiction but only to a court or tribunal (see judgment in Sánchez Morcillo and Abril García , C‑169/14, EU:C:2014:2099, paragraph 36).
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36. In that connection, it should be observed that, according to EU law, the principle of effective judicial protection does not afford a right of access to a second level of jurisdiction but only to a court or tribunal (see, to that effect, judgment in Samba Diouf , C‑69/10, EU:C:2011:524, paragraph 69). Consequently, the fact that the only remedy available to the consumer, as a debtor against whom mortgage enforcement proceedings are brought, is to bring an action before a single jurisdictional level in order to protect the rights derived from Directive 93/13 is not, in itself, contrary to EU law.
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104 As regards the third part of the plea, the contested decision contains admittedly only a brief résumé of the grounds on which the Commission refused to apply the derogation provided for by Article 92(2)(c) of the Treaty to the facts of the case.
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88 In this regard the Court reiterates that the Member States must have mutual trust in each other as far as controls carried out on their respective territories are concerned (judgments in Case 46/76 Bauhuis [1977] ECR 5, paragraph 22, and Hedley Lomas, cited above, paragraph 19).
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19 This exclusion of recourse to Article 36 cannot be affected by the fact that, in the present case, the Directive does not lay down any Community procedure for monitoring compliance nor any penalties in the event of breach of its provisions. The fact that the Directive lays down no monitoring procedure or penalties simply means that the Member States are obliged, in accordance with the first paragraph of Article 5 and the third paragraph of Article 189 of the Treaty, to take all measures necessary to guarantee the application and effectiveness of Community law (see, in particular, the judgment in Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 23). In this regard, the Member States must rely on trust in each other to carry out inspections on their respective territories (see also the judgment in Case 46/76 Bauhuis v Netherlands [1977] ECR 5, paragraph 22).
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114. It is therefore important that mechanisms be established which ensure the creation of a genuine market for certificates in which supply can match demand, reaching some kind of balance, so that it is actually possible for the relevant suppliers and users to obtain certificates under fair terms.
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76. As regards judicial review of the implementation of that principle, bearing in mind the wide discretion enjoyed by European Union legislature where the common agricultural policy is concerned, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue ( Agrana Zucker , paragraph 32).
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32. As regards judicial review of the implementation of that principle, bearing in mind the wide discretion enjoyed by the Community legislature where the common agricultural policy is concerned, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue ( Spain v Council , paragraph 98 and the case-law cited).
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110 THE SUBMISSION MUST THEREFORE BE REJECTED .
( B ) THE ALLEGED ABSENCE OF INTENTION ON THE PART OF PIONEER
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103. In that regard, it must be pointed out that the right to take collective action for the protection of the workers of the host State against possible social dumping may constitute an overriding reason of public interest within the meaning of the case‑law of the Court which, in principle, justifies a restriction of one of the fundamental freedoms guaranteed by the Treaty (see, to that effect, Joined Cases C‑369/96 and C‑376/96 Arblade and Others [1999] ECR I‑8453, paragraph 36; Case C‑165/98 Mazzoleni and ISA [2001] ECR I‑2189, paragraph 27; Joined Cases C‑49/98, C‑50/98, C‑52/98 to C‑54/98 and C‑68/98 to C‑71/98 Finalarte and Others [2001] ECR I‑7831, paragraph 33, and Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union [2007] ECR I‑0000, paragraph 77).
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27 The overriding reasons relating to the public interest which have been recognised by the Court include the protection of workers (see, in particular, Webb, paragraph 19; and Arblade, paragraph 36).
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33
It follows that a restriction on the freedom to provide services, such as that at issue in the main proceedings, cannot be justified by the fact that non-resident financial institutions are subject to a tax rate which is lower than the rate for resident financial institutions.
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38. Since Article 10 of Directive 1999/31 and Articles 1 to 3 of Directive 2000/35 have direct effect, they are binding on all the authorities of the Member States, that is to say, not merely the national courts but also all administrative bodies, including decentralised authorities, and those authorities are required to apply them (see, to that effect, Case 103/88 Costanzo [1989] ECR 1839, paragraphs 30 to 33 and Case C‑243/09 Fuß [2010] ECR I‑9849, paragraph 61 and the case‑law cited).
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33 The answer to the fourth question must therefore be that administrative authorities, including municipal authorities, are under the same obligation as a national court to apply the provisions of Article 29(5 ) of Council Directive 71/305/EEC and to refrain from applying provisions of national law which conflict with them .
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102 Therefore, since the PVC I decision had become final in relation to those two undertakings, they could no longer be addressees of the PVC II decision. Nevertheless, to the extent that they were involved in the objections raised with respect to all the undertakings initially implicated, their respective roles could be taken into account by the Commission in the PVC II decision in so far as they related to the objections raised against the addressees of that decision for the purposes of establishing the infringements found to have been committed by those addressees, each within the limits of its own liability. The PVC I and PVC II decisions do not therefore relate to agreements or concerted practices in respect of which the participants proceeded against in 1994 are different from those proceeded against in 1988. They concern the same agreements or concerted practices in respect of the same undertakings which, solely by virtue of the application of procedural rules, were penalised by two successive decisions.
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25
In those circumstances, under the principle of procedural autonomy and subject to the principles of equivalency and effectiveness, it is for the national legal order of each Member State to establish the ways in which evidence is to be elicited, what evidence is to be admissible before the appropriate national court, or the principles governing that court’s assessment of the probative value of the evidence adduced before it and also the level of proof required (see, by analogy, judgments of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraphs 27 and 28, and of 21 January 2016, Eturas and Others, C‑74/14, EU:C:2016:42, paragraphs 30 and 32).
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28. According to settled case-law, in the absence of harmonisation of such rules under EU law, it is for the national legal order of each Member State to establish them in accordance with the principle of procedural autonomy provided, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgment in Kušionová , C‑34/13, EU:C:2014:2189, paragraph 50 and the case-law cited).
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57. Il est également de jurisprudence constante que l’article 45, premier alinéa, CE constitue une dérogation à la règle fondamentale de la liberté d’établissement. Comme telle, cette dérogation doit recevoir une interprétation qui limite sa portée à ce qui est strictement nécessaire pour sauvegarder les intérêts que cette disposition permet aux États membres de protéger (arrêts du 15 mars 1988, Commission/Grèce, précité, point 7; Commission/Espagne, précité, point 34; du 30 mars 2006, Servizi Ausiliari Dottori Commercialisti, C‑451/03, Rec. p. I‑2941, point 45; du 29 novembre 2007, Commission/Autriche, C‑393/05, Rec. p. I‑10195, point 35, et Commission/Allemagne, C‑404/05, Rec. p. I‑10239, points 37 et 46, ainsi que Commission/Portugal, précité, point 34).
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62. It is true also that, according to consistent case-law, the principle of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, in particular, Case C-248/04 Koninklijke Coöperatie Cosun [2006] ECR I‑10211, paragraph 72, and Case C‑303/05 Advocaten voor de Wereld [2007] ECR I-0000, paragraph 56).
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72. In that regard, it must be pointed out, first, that compliance with the principle of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, in particular, Case C-44/94 Fishermen’s Organisations and Others [1995] ECR I‑3115, paragraph 46, and Joined Cases C‑87/03 and C‑100/03 Spain v Council [2006] ECR I‑2915, paragraph 48) and, second, that the second subparagraph of Article 40(3) of the Treaty, which prohibits all discrimination in the context of the common agricultural policy, is merely a specific expression of that principle (see, inter alia, Case C‑292/97 Karlsson and Others [2000] ECR I‑2737, paragraph 39).
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35
Accordingly, a body or an organisation, even one governed by private law, to which a Member State has delegated the performance of a task in the public interest and which possesses for that purpose special powers beyond those which result from the normal rules applicable to relations between individuals is one against which the provisions of a directive that have direct effect may be relied upon.
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89. Furthermore, since Article 30 EC contains an exception, to be interpreted strictly, to the rule of free movement of goods within the Community, it is for the national authorities which invoke it to show in each case, in the light of national nutritional habits and in the light of the results of international scientific research, that their rules are necessary to give effective protection to the interests referred to in that provision and, in particular, that the marketing of the products in question poses a real risk to public health ( Sandoz , paragraph 22; Van Bennekom , paragraph 40; Commission v Denmark , paragraph 46; and Case C-24/00 Commission v France , paragraph 53).
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40 IN THIS CONNECTION IT IS FOR THE NATIONAL AUTHORITIES TO DEMONSTRATE IN EACH CASE THAT THEIR RULES ARE NECESSARY TO GIVE EFFECTIVE PROTECTION TO THE INTERESTS REFERRED TO IN ARTICLE 36 OF THE TREATY AND , IN PARTICULAR , TO SHOW THAT THE MARKETING OF THE PRODUCT IN QUESTION CREATES A SERIOUS RISK TO PUBLIC HEALTH .
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81 That finding is confirmed by an examination of the legislative background to the two tariff changes at issue. The resolution of the regional Parliament of the Land of Tyrol, of 17 May 1995, which gave rise to those tariff changes, emphasised the need to protect domestic hauliers (heimischen Frächter) from the drastic charges deriving from those tariff changes.
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20. In that regard, it is apparent from settled case-law that inheritances, namely the transfer to one or more persons of assets left by a deceased person and falling under heading XI of Annex I to Directive 88/361, entitled ‘Personal capital movements’, constitute movements of capital within the meaning of Article 56 EC, except in cases where their constituent elements are confined within a single Member State (see, inter alia, Case C-364/01 Barbier [2003] ECR I-15013, paragraph 58; van Hilten-van der Heijden , paragraphs 40 to 42; and Case C-31/11 Scheunemann [2012] ECR I-0000, paragraph 22).
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22. It is also clear from the case-law of the Court that the tax treatment of inheritances falls, in principle, under Article 63 TFEU on the free movement of capital. Inheritances consisting in the transfer to one or more persons of assets left by a deceased person, falling under heading XI of Annex I to Directive 88/361, which is entitled ‘Personal capital movements’, are movements of capital for the purposes of Article 63 TFEU (see, inter alia, Case C-11/07 Eckelkamp and Others [2008] ECR I-6845, paragraph 39; Case C-43/07 Arens-Sikken [2008] ECR I-6887, paragraph 30; Case C-35/08 Busley and Cibrian Fernandez [2009] ECR I-9807, paragraph 18; and Case C-25/10 Missionswerk Werner Heukelbach [2011] ECR I-497, paragraph 16).
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27 NEVERTHELESS , THE EXERCISE OF THAT RIGHT MIGHT FALL WITHIN THE AMBIT OF THE PROHIBITIONS CONTAINED IN THE TREATY IF IT WERE TO MANIFEST ITSELF AS THE SUBJECT , THE MEANS , OR THE CONSEQUENCE OF A RESTRICTIVE PRACTICE .
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67. For the purpose of ascertaining whether the Commission has infringed the principle of res judicata by bring the present action, it is necessary to examine whether, having regard to the factual and legal background of the two sets of proceedings concerned, the present case and that which gave rise to the judgment in Case C-499/99 Commission v Spain are essentially identical in fact and in law ( Commission v Luxembourg , paragraph 28).
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28 An infringement must be assessed at the expiry of the time-limit fixed in the Commission's decision by which the Member State must notify the Commission of the measures it proposes to take (see, to that effect, Commission v Belgium above, paragraph 26). In this case it was 5 May 1990. The continuation after that date of the activities of the companies in receipt of aid declared illegal therefore invalidates the Spanish Government's argument that the Commission's infringement action is redundant following the order for court-supervised administration of those companies, which, it alleges, for that reason cannot be accused of enjoying any competitive advantage.
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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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59
As regards measures for the prevention of fraud and abuse within the meaning of Article 1(2) of the Parent-Subsidiary Directive, it should be noted that, since that provision provides for an exception to the general rules laid down by the directive, namely the common tax rules applicable to parent companies and subsidiaries coming within the scope of the directive, it must be subject to strict interpretation (see, to that effect, judgments of 24 June 2010, P. Ferrero e C. and General Beverage Europe, C‑338/08 and C‑339/08, EU:C:2010:364, paragraph 45, and of 8 March 2017, Euro Park Service, C‑14/16, EU:C:2017:177, paragraph 49 and the case-law cited).
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49
Since that provision provides an exception to the general rules laid down by Directive 90/434, namely the common tax rules applicable to operations coming within the scope of that same directive, it must be subject to strict interpretation (see, to that effect, judgment of 20 May 2010, Modehuis A. Zwijnenburg, C‑352/08, EU:C:2010:282, paragraph 46).
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38. Unlike pharmacists, non-pharmacists by definition lack training, experience and responsibility equivalent to those of pharmacists. Accordingly, they do not provide the same safeguards as pharmacists.
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127. The Commission considers that the fourth ground of appeal is inadmissible, since Dunamenti Erőmű has not indicated the part of the judgment under appeal which it claims is vitiated by an error of law. Dunamenti Erőmű makes a passing reference to paragraph 112 of that judgment, but does not explain why that paragraph should be overturned (see, to that effect, the judgments in Bergaderm and Goupil v Commission , C‑352/98 P, EU:C:2000:361, paragraph 34, and France v Monsanto and Commission , C‑248/99 P, EU:C:2002:1, paragraphs 68 and 69).
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68 In that regard, it follows from Article 225 EC, the first paragraph of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergadem and Goupil v Commission [2000] ECR I-5291, paragraph 34).
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40. First, a prescribing doctor is required, from the point of view of professional conduct, not to prescribe a given medicinal product if it is not fitting for the therapeutic treatment of his patient, despite the existence of public financial inducements for its prescription.
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35. According to settled case-law, in order to determine whether the body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter parties, whether it applies rules of law and whether it is independent (Case 61/65 Vaasen-Göbbels [1966] ECR 261 at 273, and Case C‑195/06 Österreichischer Rundfunk [2007] ECR I‑8817, paragraph 19 and the case-law cited).
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19. According to settled case-law, in order to determine whether the body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case C‑53/03 Syfait and Others [2005] ECR I-4609, paragraph 29, and the case-law cited, and Case C-246/05 Häupl [2007] ECR I-0000, paragraph 16).
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32. Second, as the Advocate General noted at points 52 and 54 of her Opinion, the terms ‘facilities’ and ‘install’ refer to the physical infrastructure enabling provision of electronic communications networks and services and to their physical installation on the public or private property concerned.
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42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature.
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37 So long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organization, which authorizes them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration.
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50. Finally, it must be presumed that a farmer in Mr Vonk Noordegraaf’s situation was not able reasonably to have detected the errors in the establishment of the area of his parcels since they were the direct result of the method then used by the competent national authorities.
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33. In this regard, it must be borne in mind that, according to settled case-law, Articles 39 EC, 43 EC and 49 EC do not apply only to the actions of public authorities but extend also to rules of any other nature aimed at regulating in a collective manner gainful employment, self-employment and the provision of services (see Case 36/74 Walrave and Koch [1974] ECR 1405, paragraph 17; Case 13/76 Donà [1976] ECR 1333, paragraph 17; Bosman , paragraph 82; Joined Cases C‑51/96 and C‑191/97 Deliège [2000] ECR I‑2549, paragraph 47; Case C‑281/98 Angonese [2000] ECR I‑4139, paragraph 31; and Case C‑309/99 Wouters and Others [2002] ECR I‑1577, paragraph 120).
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120 It should be observed at the outset that compliance with Articles 52 and 59 of the Treaty is also required in the case of rules which are not public in nature but which are designed to regulate, collectively, self-employment and the provision of services. The abolition, as between Member States, of obstacles to freedom of movement for persons would be compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise of their legal autonomy by associations or organisations not governed by public law (Case 36/74 Walrave and Koch [1974] ECR 1405, paragraphs 17, 23 and 24; Case 13/76 Donà [1976] ECR 1333, paragraphs 17 and 18; Case C-415/93 Bosman [1995] ECR I-4921, paragraphs 83 and 84, and Case C-281/98 Angonese [2000] ECR I-4139, paragraph 32).
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51
In that context, it must be noted that the Portuguese Government did not provide any indication of the reasons which might prevent the national tax authorities from taking into account evidence provided by non-resident financial institutions.
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27 Lastly, it follows from consistent case-law since Francovich I, cited above, at paragraphs 41 to 43, that subject to the foregoing, it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss or damage caused; further, the conditions, in particular time-limits, for reparation of loss or damage laid down by national law must not be less favourable than those relating to similar domestic claims (principle of equivalence) and must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation (principle of effectiveness).
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41 Those conditions are sufficient to give rise to a right on the part of individuals to obtain reparation, a right founded directly on Community law.
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55. In that context, it has to be added that in its original version, namely, Directive 75/129, the Directive had provided in Article 1(2)(d) that it did not apply to workers affected by the termination of an establishment’s activities where that was the result of a judicial decision. That article provided an exception to the rule laid down by Article 1(1)(a), which stated, in terms the same as those used in the equivalent provision of Directive 98/59, that for the purposes of that directive ‘collective redundancies’ means dismissals effected by an employer for one or more reasons not related to the individual workers concerned. That exception would not have been needed had the concept of ‘redundancy’ taken the form of a willed act of the employer.
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24 It must be borne in mind that the directive allows national provisions which guarantee women specific rights on account of pregnancy and maternity, such as maternity leave (see Case C-179/88 Handels- og Kontorfunktionaerernes Forbund [1990] ECR I-3979, paragraph 15).
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15 The Directive does not envisage the case of an illness attributable to pregnancy or confinement . It does, however, admit of national provisions guaranteeing women specific rights on account of pregnancy and maternity, such as maternity leave . During the maternity leave accorded to her pursuant to national law, a woman is accordingly protected against dismissal due to absence . It is for every Member State to fix periods of maternity leave in such a way as to enable female workers to absent themselves during the period in which the disorders inherent in pregnancy and confinement occur .
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64. S’agissant de l’interdiction de l’utilisation des filets maillants dérivants dont la longueur individuelle ou cumulée est supérieure à 2,5 kilomètres, la Cour a jugé que la limitation de l’usage de ces filets telle qu’elle résultait du règlement n° 345/92 a été adoptée dans le but primordial d’assurer la conservation et l’exploitation rationnelle des ressources halieutiques ainsi que la limitation de l’effort de pêche (voir arrêt Mondiet, précité, point 24).
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61
It is in that context that the Court referred to the wholly derivative nature of the liability incurred by the parent company solely because of a subsidiary’s direct participation in the infringement (see, to that effect, judgment of 22 January 2013, Commission v Tomkins, C‑286/11 P, EU:C:2013:29, paragraphs 34, 38, 43 and 49). In that situation, the parent company’s liability arises from its subsidiary’s unlawful conduct, which is attributed to the parent company in view of the economic unit formed by those companies. Consequently, the parent company’s liability necessarily depends on the facts constituting the infringement committed by its subsidiary and to which its liability is inextricably linked.
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38. In the present case, however, no such proof has ultimately been furnished concerning the period from 31 December 1988 to 29 October 1993, since the General Court annulled in part the contested decision, so far as concerns that period, in its judgment in Pegler v Commission . The reason for which it was found that Pegler had not acted unlawfully is, in this respect, irrelevant.
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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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25 In addition, the global appreciation of the likelihood of confusion must, as regards the visual, aural or conceptual similarity of the marks in question, be based on the overall impression created by them, bearing in mind, in particular, their distinctive and dominant components. The wording of Article 5(1)(b) of the Directive - `... there exists a likelihood of confusion on the part of the public ...' - shows that the perception of marks in the mind of the average consumer of the category of goods or services in question plays a decisive role in the global appreciation of the likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see, to that effect, SABEL, paragraph 23).
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23 That global appreciation of the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The wording of Article 4(1)(b) of the Directive - '... there exists a likelihood of confusion on the part of the public ...' - shows that the perception of marks in the mind of the average consumer of the type of goods or services in question plays a decisive role in the global appreciation of the likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details.
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47. It should be pointed out, with regard to judicial review of the validity of the provisions of a regulation, that the Court, when it assesses the proportionality of the measures implemented by those provisions, has accepted that the legislature of the European Union, in the exercise of the powers conferred on it, must be allowed a broad discretion in areas which involve, on its part, political, economic and social choices and in which it is called upon to undertake complex assessments (see, to that effect, Case C-58/08 Vodafone and Others [2010] ECR I-4999, paragraphs 51 and 52).
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61. Furthermore, it is evident from settled case-law that implementation of the obligations imposed on Member States by the Treaty or secondary legislation cannot be made subject to a condition of reciprocity (see, among others, Case C-163/99 Portugal v Commission [2001] ECR I-2613, paragraph 22, and Case C-142/01 Commission v Italy [2002] ECR I-4541, paragraph 7).
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22 In the first place, the Portuguese Republic's argument that a directive of this type was the only way to bring about the simultaneous harmonisation of national systems of airport charges similar to the Portuguese system is immaterial. The effect of that argument is merely to deny that that Member State has an obligation to amend its system of landing charges to bring it into conformity with the Treaty whilst systems of a similar type remain in force in other Member States. It is settled law, however, that a Member State may not rely on the fact that other Member States have also failed to perform their obligations in order to justify its own failure to fulfil its obligations under the Treaty. In the Community legal order established by the Treaty, the implementation of Community law by the Member States cannot be made subject to a condition of reciprocity. Articles 226 EC and 227 EC provide the appropriate remedies in such cases (see Case C-38/89 Blanguernon [1990] ECR I-83, paragraph 7).
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61. In those circumstances, there is no need to answer the third and fourth questions.
Costs
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94. In response to that line of argument, the Court finds that it is necessary to rely on Recommendation 2000/417 which, as opposed to the other recommendations cited above, concerns specifically unbundled access to the local loop and also refers to Directives 97/33 and 98/10. Even if recommendations are not intended to produce binding effects, the national courts are bound to take the recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community provisions (see Case C‑322/88 Grimaldi [1989] ECR 4407, paragraph 18, and Case C‑207/01 Altair Chimica [2003] ECR I‑8875, paragraph 41). Article 1(6) of Recommendation 2000/417 lays down the principle of a forward-looking approach based on current costs. As is apparent from that provision, that approach will foster fair and sustainable competition and provide alternative investment incentives.
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41. As regards, third, the interpretation of Recommendation 81/924, it must be recalled that, according to the case-law of the Court, even if recommendations are not intended to produce binding effects and are not capable of creating rights that individuals can rely on before a national court they are not without any legal effect. The national courts are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or w here they are designed to supplement binding Community provisions (Case C-322/88 Grimaldi [1989] ECR 4407, paragraphs 7, 16 and 18).
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26
In this regard, it must be borne in mind that Directive 77/249, the purpose of which is to facilitate the effective exercise by lawyers of the freedom to provide services (judgment of 19 January 1988, Gullung, 292/86, EU:C:1988:15, paragraph 15), applies, in accordance with the wording of Article 1(1) thereof, to the activities of lawyers pursued by way of provision of services.
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23. It is only where and in so far as the European Union has assumed the powers previously exercised by the Member States in the field to which an international convention not concluded by the European Union applies and, therefore, the provisions of the convention have the effect of binding the European Union that the Court has jurisdiction to interpret such a convention ( TNT Express Nederland , EU:C:2010:243, paragraph 62 and the case-law cited).
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62. It is only where and in so far as the European Union has assumed the powers previously exercised by the Member States in the field to which an international convention not concluded by the European Union applies and, therefore, the provisions of the convention have the effect of binding the European Union that the Court has jurisdiction to interpret such a convention (see, inter alia, Joined Cases 21/72 to 24/72 International Fruit Company and Others [1972] ECR 1219, paragraph 18; Case C-308/06 Intertanko and Others [2008] ECR I-4057, paragraph 48; and Bogiatzi , paragraph 25). In the present instance, however, it cannot be asserted that the rules governing jurisdiction, recognition and enforcement laid down by the CMR bind the European Union. On the contrary, it is apparent from the interpretation of Article 71 of Regulation No 44/2001 provided in the present judgment that those rules laid down by the CMR can be applied in the European Union only if the principles underlying that regulation are observed.
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56. Il y a lieu, à titre liminaire, de rappeler que la suppression d’une aide illégale par voie de récupération est la conséquence logique de la constatation de son illégalité et que cette conséquence ne saurait dépendre de la forme dans laquelle l’aide a été octroyée (voir arrêt du 14 avril 2011, Commission/Pologne, C‑331/09, non encore publié au Recueil, point 54 et jurisprudence citée).
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22. That general provision thus institutes the legal fiction of uniform quality enabling the customs authorities, where only part of the goods covered by a declaration are examined, to apply the results of that examination to all the goods covered by that declaration (see, to that effect, Case C‑353/04 Nowaco Germany [2006] ECR I‑7357, paragraphs 54 and 55, and Joined Cases C-323/10 to C-326/10 Gebr. Stolle [2011] ECR I‑12177, paragraphs 100 and 101).
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55. The first paragraph of Article 70(1) of the Customs Code is a general provision which provides that, where only part of the goods covered by a declaration are examined, the results of the partial examination are to be taken to apply to all the goods covered by that declaration.
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59. It follows from that settled case-law that the Member States may, on the basis of the principle of legal certainty, require an application for review and withdrawal of an administrative decision that has become final and is contrary to Community law as interpreted subsequently by the Court to be made to the competent administrative authority within a reasonable period.
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48. If Article 12 of Regulation No 1612/68 had been limited to conferring the right to equal treatment with regard to access to education without providing for any right of residence for the children of migrant workers, it would have become superfluous with the entry into force of Directive 2004/38. Article 24(1) of that directive provides that all Union citizens residing in the territory of the host Member State are to enjoy equal treatment with the nationals of that State within the scope of the Treaty, it not being in doubt that access to education falls within the scope of European Union law (see, inter alia, Case 293/83 Gravier [1985] ECR 593, paragraph 19).
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19 THE FIRST REMARK WHICH MUST BE MADE IN THAT REGARD IS THAT ALTHOUGH EDUCATIONAL ORGANIZATION AND POLICY ARE NOT AS SUCH INCLUDED IN THE SPHERES WHICH THE TREATY HAS ENTRUSTED TO THE COMMUNITY INSTITUTIONS , ACCESS TO AND PARTICIPATION IN COURSES OF INSTRUCTION AND APPRENTICESHIP , IN PARTICULAR VOCATIONAL TRAINING , ARE NOT UNCONNECTED WITH COMMUNITY LAW .
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28. The effect of that principle is therefore to prohibit wholly artificial arrangements which do not reflect economic reality and are set up with the sole aim of obtaining a tax advantage (see, to that effect, Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 55).
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65. Thus, a measure which constitutes an exception to the application of the general tax system may be justified if the Member State concerned can show that that measure results directly from the basic or guiding principles of its tax system (see Portugal v Commission , paragraph 81).
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81. A measure which creates an exception to the application of the general tax system may be justified by the nature and overall structure of the tax system if the Member State concerned can show that that measure results directly from the basic or guiding principles of its tax system. In that connection, a distinction must be made between, on the one hand, the objectives attributed to a particular tax scheme which are extrinsic to it and, on the other, the mechanisms inherent in the tax system itself which are necessary for the achievement of such objectives.
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40. In the light of the entirety of that case-law, it must be observed that a data collection activity in relation to undertakings, on the basis of a statutory obligation on those undertakings to disclose the data and powers of enforcement related thereto, falls within the exercise of public powers. As a result, such an activity is not an economic activity.
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110
It must be borne in mind that it is for the General Court alone to assess the evidence adduced before it. Although it must observe the general principles and the rules of procedure relating to the burden of proof and the taking of evidence and not distort the clear sense of the evidence, the General Court cannot be required to give express reasons for its assessment of the value of each piece of evidence presented to it, in particular where it considers that that evidence is unimportant or irrelevant to the outcome of the dispute (see, to that effect, judgment of 15 June 2000, Dorsch Consult v Council and Commission, C‑237/98 P, EU:C:2000:321, paragraphs 50 and 51).
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50 It is settled law that it is for the Court of First Instance alone to assess the value to be attached to the items of evidence adduced before it (Case C-136/92 P Commission v Brazzelli Lualdi [1994] ECR I-1981, paragraph 66, and Blackspur DIY and Others v Council and Commission, cited above, paragraph 29).
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84. Such advertising will also be misleading if it is established that the collective reference which it contains to a range of amounts that may be saved by consumers who purchase their basic consumables from the advertiser rather than from competing chains of stores and the failure to specify individually the general level of the prices charged by each of those chains in competition with the advertiser and the amount that can be saved in relation to each of them are such as to deceive a significant number of persons to whom the advertising is addressed as to the amount that they are actually liable to save by purchasing their basic consumables from the advertiser rather than from some particular competitor or other, and to affect their economic behaviour to that extent.
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8 Furthermore, Article 59 of the Treaty applies not only where a person providing services and the recipient thereof are established in different Member States, but also in all cases where the person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established (Commission v Greece, cited above, paragraphs 8 to 10).
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10 Consequently, the provisions of Article 59 must apply in all cases where a person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established.
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27 National courts must offer to individuals the certain prospect that all appropriate conclusions will be drawn from an infringement of that provision, in accordance with their national law, as regards the validity of measures giving effect to the aid, the recovery of financial support granted in disregard of that provision and possible interim measures (Case C-354/90 Fédération Nationale du Commerce Extérieur des Produits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon [1991] ECR I-5505, paragraph 12).
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48. On the other hand, in situations of fraud or abuse in which the taxable person pretended that he wished to pursue a particular economic activity but in fact sought to acquire as his private assets goods in respect of which a deduction could be made, the tax authorities may claim, with retroactive effect, repayment of the sums deducted, since those deductions were made on the basis of false statements (see Schloßstrasse , paragraph 40 and the case-law cited).
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40 Article 4 of the Sixth Directive does not, however, preclude the tax authority from requiring objective evidence in support of the declared intention to commence economic activities which will give rise to taxable transactions. In that context, it is important to point out that a taxable person acquires that status definitively only if he made the declaration of intention to begin the envisaged economic activities in good faith. In cases of fraud or abuse, in which, for example, the person concerned, on the pretext of intending to pursue a particular economic activity, in fact sought to acquire as his private assets goods in respect of which a deduction could be made, the tax authority may claim, with retroactive effect, repayment of the sums deducted on the ground that those deductions were made on the basis of false declarations (Rompelman, paragraph 24, INZO, paragraphs 23 and 24, and Gabalfrisa, paragraph 46).
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33 It follows that the solution adopted in Barra and Deville, cited above, is not applicable to this case.
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67. Since those complainants were entitled to pursue the regulated profession in question in a Member State other than that in which they are applying to pursue that profession, their situation cannot be categorised as purely internal and the line of argument of the Kingdom of Spain based, in this respect, on the judgment in Joined Cases C‑225/95 to C‑227/95 Kapasakalis and Others [1998] ECR I‑4239, paragraphs 18 and 19, must therefore be rejected. As the Commission has observed, the Court held in that judgment that Directive 89/48 was not applicable since the applicants in the main proceedings had not worked, studied or obtained a diploma in another Member State.
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19 Second, it is clear from the tenth recital in the preamble and the first paragraph of Article 2 that the Directive applies only to nationals of a Member State who wish to pursue, on a self-employed or employed basis, a regulated profession in a Member State other than their Member State of origin, and that it is not intended to amend the rules applicable to persons pursuing a profession in the territory of a Member State.
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50. En effet, il ressort de la jurisprudence de la Cour que l’existence d’un intérêt à agir suppose qu’une demande telle que celle faite par la Commission soit susceptible, par son résultat, de procurer un bénéfice à la partie qui l’a intentée (voir, en ce sens, arrêt du 6 octobre 2009, GlaxoSmithKline Services e.a./Commission e.a., C‑501/06 P, C‑513/06 P, C‑515/06 P et C‑519/06 P, Rec. p. I‑9291, point 23 ainsi que jurisprudence citée).
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33. Before Directive 92/85 came into force, the Court had already held that, under the principle of non-discrimination and, in particular, Articles 2(1) and 5(1) of Directive 76/207, protection against dismissal must be granted to women not only during maternity leave, but also throughout the period of the pregnancy. According to the Court, a dismissal occurring during those periods affects only women and therefore constitutes direct discrimination on the grounds of sex (see, to that effect, Case C-179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I-3979, paragraph 13; Case C-394/96 Brown [1998] ECR I-4185, paragraphs 16, 24 and 25; McKenna , paragraph 47; and Paquay , paragraph 29).
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24 Although, under Article 2(3) of Directive 76/207, such protection against dismissal must be afforded to women during maternity leave (Hertz, cited above, paragraph 15), the principle of non-discrimination, for its part, requires similar protection throughout the period of pregnancy. Finally, as is clear from paragraph 22 of this judgment, dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the fact of pregnancy. Such a dismissal can affect only women and therefore constitutes direct discrimination on grounds of sex.
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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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16. The Court has based that decision on the view, in particular, that a national provision, such as the first sentence of Paragraph 64(2) of the GmbHG, under which the managing director of an insolvent company must reimburse the payments which he made on behalf of that company after it became insolvent, derogates from the common rules of civil and commercial law, because of the insolvency of that company. It infers therefrom that an action based on that provision, brought in the context of insolvency proceedings, is an action deriving directly from insolvency proceedings and closely connected with them (see, to that effect, judgment in H , C‑295/13, EU:C:2014:2410, paragraphs 23 and 24).
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23. Under Paragraph 64 of the GmbHG, the managing director of a debtor company must reimburse the payments which he made on behalf of that company after it became insolvent or after it was established that the company’s liabilities exceeded its assets. That provision therefore clearly derogates from the common rules of civil and commercial law, specifically because of the insolvency of the debtor company.
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27. Transit, such as that in issue in the main proceedings, which consists in transporting goods lawfully manufactured in a Member State to a non-member country by passing through one or more Member States, does not involve any marketing of the goods in question and is therefore not liable to infringe the specific subject-matter of the trade mark.
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67. In that respect it is necessary to point out that the concept of ‘worker’ within the meaning of Article 39 EC has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to the case-law of the Court, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17; Case C-138/02 Collins [2004] ECR I‑2703, paragraph 26; and Case C‑456/02 Trojani [2004] ECR I‑7573, paragraph 15).
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16 SINCE FREEDOM OF MOVEMENT FOR WORKERS CONSTITUTES ONE OF THE FUNDAMENTAL PRINCIPLES OF THE COMMUNITY , THE TERM ' WORKER ' IN ARTICLE 48 MAY NOT BE INTERPRETED DIFFERENTLY ACCORDING TO THE LAW OF EACH MEMBER STATE BUT HAS A COMMUNITY MEANING . SINCE IT DEFINES THE SCOPE OF THAT FUNDAMENTAL FREEDOM , THE COMMUNITY CONCEPT OF A ' WORKER ' MUST BE INTERPRETED BROADLY ( JUDGMENT OF 23 MARCH 1982 IN CASE 53/81 LEVIN V STAATSSECRETARIS VAN JUSTITIE ( 1982 ) ECR 1035 ).
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122. Tel est en effet le cas du droit de propriété et de la liberté d’exercer une activité économique. Par conséquent, des restrictions peuvent être apportées au droit d’exercer librement une activité professionnelle, tout comme à l’usage du droit de propriété, à condition que ces restrictions répondent effectivement à des objectifs d’intérêt général poursuivis et ne constituent pas, au regard du but poursuivi, une intervention démesurée et intolérable qui porterait atteinte à la substance même des droits ainsi garantis (voir arrêt Bank Melli Iran/Conseil, précité, point 114).
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25 The position would be different if the person concerned settled in Member State B and manifested an intention to live there with his woman friend and not to return to Member State A (see the judgment in Profant, supra, paragraph 27).
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27 THE FACT THAT A STUDENT FROM ANOTHER MEMBER STATE MARRIES CANNOT OF ITSELF AFFECT THAT POSITION . IT WOULD BE OTHERWISE IF THE COUPLE IN QUESTION SETTLED IN THE HOST MEMBER STATE IN SUCH A WAY AS TO MANIFEST THEIR INTENTION OF NOT RETURNING TO THE MEMBER STATE OF ORIGIN . BUT THAT SITUATION IS NOT CONTEMPLATED BY THE JUDGMENT OF THE NATIONAL COURT AND THERE IS NOTHING IN THE FILE TO SUGGEST THAT SUCH WAS THE POSITION IN THE PRESENT CASE .
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48. Next, the condition laid down in the first indent of Article 1(a) of Directive 89/48 is satisfied, so far as concerns the qualifications relied on by Mr Cavallera, in that each of those qualifications was awarded by a competent authority, designated respectively in accordance with Italian and Spanish legislation.
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15. As an exception to the general rule of jurisdiction set out in the Convention, Article 16 must not be given an interpretation broader than is required by its objective, since the article deprives the parties of the choice of forum which would otherwise be theirs and, in certain cases, results in their being brought before a court which is not that of the domicile of any of them (see Case 73/77 Sanders [1977] ECR 2383, paragraphs 17 and 18; Case C-115/88 Reichert and Kockler [1990] ECR I-27, paragraph 9; Case C-292/93 Lieber [1994] ECR I-2535, paragraph 12; and Case C‑8/98 Dansommer [2000] ECR I-393, paragraph 21).
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17 FURTHERMORE , THE ASSIGNMENT , IN THE INTERESTS OF THE PROPER ADMINISTRATION OF JUSTICE , OF EXCLUSIVE JURISDICTION TO THE COURTS OF ONE CONTRACTING STATE IN ACCORDANCE WITH ARTICLE 16 OF THE CONVENTION RESULTS IN DEPRIVING THE PARTIES OF THE CHOICE OF THE FORUM WHICH WOULD OTHERWISE BE THEIRS AND , IN CERTAIN CASES , RESULTS IN THEIR BEING BROUGHT BEFORE A COURT WHICH IS NOT THAT OF THE DOMICILE OF ANY OF THEM .
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50. If that were the case, those contractual terms would have to be redefined so as to re-establish the situation that would have prevailed in the absence of the transactions constituting that abusive practice (see, to that effect, Halifax and Others , paragraph 98).
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29. That being so, the trade mark proprietor cannot oppose that use of the sign, identical with its mark, if that use is not liable to cause detriment to any of the functions of that mark ( L’Oréal and Others , paragraph 60, and Google France and Google , paragraph 76).
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60. It is apparent from the case-law cited in paragraph 58 of this judgment that the proprietor of the mark cannot oppose the use of a sign identical with the mark on the basis of Article 5(1)(a) of Directive 89/104 if that use is not liable to cause detriment to any of the functions of that mark (see also Arsenal Football Club , paragraph 54, and Adam Opel , 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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90. In that regard, it should be noted that national legislation that is restrictive from the point of view of Article 56 TFEU is also capable of limiting the right to property enshrined in Article 17 of the Charter. Likewise, the Court has already held that an unjustified or disproportionate restriction of the freedom to provide services under Article 56 TFEU is also not permitted under Article 52(1) of the Charter, in relation to Article 17 thereof ( Pfleger and Others , C‑390/12, EU:C:2014:281, paragraphs 57 and 59).
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59. As the Advocate General states in points 63 to 70 of her Opinion, in circumstances such as those at issue in the main proceedings, an unjustified or disproportionate restriction of the freedom to provide services under Article 56 TFEU is also not permitted under Article 52(1) of the Charter in relation to Articles 15 to 17 of the Charter.
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38. Therefore, the answer to the fourth question is that clause 4(1) of the framework agreement must be interpreted as meaning that the concept of ‘employment conditions’ covers the compensation that the employer must pay to an employee on account of the unlawful insertion of a fixed‑term clause into his employment contract.
The fifth question
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38 First, non-collection of the duties must have been due to an error made by the competent authorities themselves. Second, the error they made must be such that the person competent, acting in good faith, could not reasonably have been able to detect it in spite of the professional experience and exercise of due care required of him. Finally, he must have complied with all the provisions laid down by the legislation in force so far as his customs declaration is concerned (see, in particular, Hewlett Packard France, paragraph 13, Faroe Seafood, paragraph 83, and Case C-370/96 Covita [1998] ECR I-7711, paragraphs 25 to 28).
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25 First, non-collection of the duties must have been as the result of an error made by the competent authorities themselves. In this connection, the legitimate expectations of the person liable do not attract the protection provided for in Article 5(2) of Regulation No 1697/79 unless it was the competent authorities themselves which created the basis for the expectations of the person liable (see Case C-348/89 Mecanarte v Chefe do Serviço da Conferência Final da Alfândega [1991] ECR I-3277, paragraphs 22 and 23). Moreover, there is an error attributable to the competent authorities where they have provided erroneous information, as Covita claims in the present case, giving rise to legitimate expectations on the part of the person liable.
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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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53. The Court has recognised that the application of the ne bis in idem principle laid down in Article 50 of the Charter to criminal prosecutions such as those which are the subject of the main proceedings presupposes that the measures which have already been adopted against the accused by means of a decision that has become final are of a criminal nature (Case C‑617/10 Åkerberg Fransson EU:C:2013:105, paragraph 33), which is not disputed in the present case.
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33. Application of the ne bis in idem principle laid down in Article 50 of the Charter to a prosecution for tax evasion such as that which is the subject of the main proceedings presupposes that the measures which have already been adopted against the defendant by means of a decision that has become final are of a criminal nature.
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84. As to the extent of any loss, by reason of their condition, fish which show clinical signs of disease have no marketable value. So far as concerns fish which have reached a commercial size and could have been marketed or processed for human consumption since they were not showing, when slaughtered, any clinical sign of disease, any loss eventually suffered by farmers by reason of the immediate slaughter of that kind of fish arises from the fact that they have been unable to choose the most advantageous time for their sale. In fact, because of the risk of their presenting clinical signs of disease in future, it is impossible to determine a more advantageous time for their sale. So far as all other types of fish are concerned, it is not possible to establish whether they have any marketable value either, because of the risk that in the future they will develop clinical signs of disease.
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38. The applicability of Article 22 of Regulation No 1408/71 to the situation in this case does not mean that provisions on the freedom to provide services and, in the circumstances, Article 49 EC, cannot apply at the same time. On the one hand, the fact that national legislation may possibly be in conformity with a provision of secondary legislation, in this case Article 22 of Regulation No 1408/71, does not have the effect of removing that legislation from the scope of the provisions of the EC Treaty (see, to that effect, Watts , paragraphs 46 and 47, and Commission v Spain , paragraph 45).
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47. The fact that a national measure may be consistent with a provision of secondary legislation, in this case Article 22 of Regulation No 1408/71, does not have the effect of removing that measure from the scope of the provisions of the Treaty (Case C-158/96 Kohll [1998] ECR I-1931, paragraph 25).
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44. However, the affixing of a sign which is identical to a trade mark registered, inter alia, in respect of motor vehicles to scale models of that make of vehicle in order to reproduce those vehicles faithfully is not intended to provide an indication as to a characteristic of those scale models, but is merely an element in the faithful reproduction of the original vehicles.
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118. In addition, although the parties’ intention is not a necessary factor in determining whether a type of coordination between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account (see, to that effect, judgment in CB v Commission , C 67/13 P, EU:C:2014:2204, paragraph 54 and the case law cited).
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54. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account (see judgment in Allianz Hungária Biztosító and Others (EU:C:2013:160), paragraph 37 and the case-law cited).
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40. It follows from all of the foregoing that Member States cannot be prevented from adopting or retaining, throughout the area covered by the Directive, including Article 4(2) thereof, rules which are more stringent than those provided for by the Directive itself, on condition that they are designed to afford consumers a higher level of protection.
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24. Furthermore, although the first indent of the first sentence of Article 7 of Decision No 1/80 requires, as a rule, that a member of the family of a Turkish worker must actually reside with him for the three years during which the person concerned fails to satisfy the conditions for access to the labour market in the host Member State (see Case C-351/95 Kadiman [1997] ECR 2133, paragraph 33, 37, 40, 41 and 44, and Cetinkaya , paragraph 30), the fact remains that Member States are no longer entitled to attach conditions to the residence of a member of a Turkish worker’s family after that three-year period; this must a fortiori be the case for a Turkish migrant who fulfils the conditions laid down in the second indent of the first sentence of Article 7 (see Ergat , paragraphs 37 to 39, and Cetinkaya , paragraph 30).
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39 This must a fortiori be the case for a migrant Turk who, like Mr Ergat, fulfils the conditions laid down in the second indent of the first paragraph of Article 7 of Decision No 1/80.
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42. If that court were to reach the conclusion that it is established, in the light of objective evidence, that Traum knew or should have known that the transaction which it had carried out was part of a tax fraud committed by the purchaser and that it had not taken every step which could reasonably be asked of it to prevent that fraud from being committed, there would be no entitlement to the VAT exemption (see, to that effect, judgment in Mecsek-Gabona , EU:C:2012:547, point 54).
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45 It appears from the Court' s case-law, however, that the obligations of the insurers may not be substituted for the obligations under the Staff Regulations, thus depriving officials of the particular guarantees secured for them by the Staff Regulations (see to this effect Case 18/70 Duraffour v Council [1971] ECR 515, paragraph 15, and Case 115/76 Leonardini v Commission [1978] ECR 735, paragraph 11).
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11ALTHOUGH IN ORDER TO ENSURE AS FAR AS POSSIBLE THE FULFILMENT OF ITS OBLIGATIONS AND IN THE ABSENCE OF OTHER ALTERNATIVES THE COMMISSION WAS ENTITLED TO HAVE RECOURSE TO PROVISIONAL MEASURES AND TO TAKE OUT AN INSURANCE POLICY SPECIFYING THE CONDITIONS UNDER WHICH THERE WOULD BE COVER FOR RISK , THIS DOES NOT MEAN THAT THE DUTY OF AN INSURER MAY BE SUBSTITUTED FOR THE DIRECT OBLIGATION ON THE PART OF THE INSTITUTION UNDER THAT ARTICLE AND IN PARTICULAR THAT IN THE EVENT OF AN ACCIDENT THE INSTITUTION MAY LEAVE TO THE INSURER THE TASK OF SETTLING THE PROBLEMS OF RISK COVER WHICH ARISE THEREFROM , RESTRICTING ITS OWN ROLE TO THAT OF INTERMEDIARY BETWEEN THE INSURER AND THE VICTIM .
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72. The Court concluded, in paragraph 328 of Kadi on appeal, that the grounds of appeal put forward by the persons concerned being well founded on that point, it was necessary to set aside Yusuf and Kadi at first instance in that respect.
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37 Finally, Ms Grant submits that it follows from P v S that differences of treatment based on sexual orientation are included in the `discrimination based on sex' prohibited by Article 119 of the Treaty.
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10 The Court has consistently held that Article 177 of the Treaty provides the framework for close cooperation between national courts and the Court of Justice, based on a division of responsibilities between them. Within that framework, it is solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the question which it submits to the Court (see, in particular, the judgment in Case C-67/91 Asociación Española de Banca Privada [1992] ECR I-4785, at paragraph 25). Accordingly, where the national court' s request concerns the interpretation of a provision of Community law, the Court is bound to reply to it, unless it is being asked to rule on a purely hypothetical general problem without having available the information as to fact or law necessary to enable it to give a useful reply to the questions referred to it (Case C-83/91 Meilicke [1992] ECR I-4871).
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32. For the same reasons, the criterion of the identity of the protected legal interest cannot be applicable since that criterion is likely to vary from one Contracting State to another.
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52
However, it is ultimately for the national court, by taking into account all the factual and legal circumstances of the case before it, to assess whether the amount of the penalty does not go beyond what is necessary to attain the objectives pursued by the legislation in question. As regards the specific application of that principle of proportionality, it is for the national court to determine whether the national measures are compatible with EU law, the competence of the Court of Justice being limited to providing the national court with all the criteria for the interpretation of EU law which may enable it to make such a determination as to compatibility (see, to that effect, judgment of 29 July 2010 in Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski, C‑188/09, EU:C:2010:454, paragraph 30 and the case-law cited).
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30. As regards the specific application of that principle of proportionality, it is for the national court to determine whether the national measures are compatible with European Union law, the competence of the Court of Justice being limited to providing the national court with all the criteria for the interpretation of European Union law which may enable it to make such a determination as to compatibility (see, inter alia, Case C‑55/94 Gebhard [1995] ECR I‑4165 and Molenheide and Others , paragraph 49).
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27. Par ailleurs, les affaires au principal se distinguent de celle ayant donné lieu à l’arrêt Sbarigia, précité, dans laquelle il était question d’une décision sur l’octroi éventuel à une pharmacie particulière d’une dispense de respecter les heures d’ouverture et, par conséquent, dans laquelle rien n’indiquait en quoi une telle décision était susceptible d’affecter des opérateurs économiques provenant d’autres États membres.
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52. La Cour a également jugé que l’astreinte doit être arrêtée en fonction du degré de persuasion nécessaire pour que l’État membre qui n’a pas pris les mesures nécessaires pour exécuter un arrêt en manquement modifie son comportement et mette fin à l’infraction incriminée (voir, en ce sens, arrêt Commission/France, C‑304/02, EU:C:2005:444, point 91).
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91. The argument that, in departing from or going beyond the Commission’s suggestions, the Court infringes a general principle of procedural law which prohibits courts from going beyond the parties’ claims is not well founded either. The procedure provided for in Article 228(2) EC is a special judicial procedure, peculiar to Community law, which cannot be equated with a civil procedure. The order imposing a penalty payment and/or a lump sum is not intended to compensate for damage caused by the Member State concerned, but to place it under economic pressure which induces it to put an end to the breach established. The financial penalties imposed must therefore be decided upon according to the degree of persuasion needed in order for the Member State in question to alter its conduct.
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113. Fifthly, the fact that authentic instruments transferring immovable property rights are registered in the registry of charges over land is not directly relevant to the outcome of the present dispute. That registration, which is moreover the responsibility of the registrar of charges, relates to measures for the publicity of those documents and does not therefore reflect the direct and specific exercise of official authority on the part of the notary.
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42
Likewise, the Court has held that that aim also precludes national rules from restricting unduly the concept of passenger covered by compulsory insurance against civil liability in respect of the use of motor vehicles, by excluding from that concept persons who were within a part of a vehicle not designed for their carriage and not fitted out for that purpose (judgment of 1 December 2011, Churchill Insurance Company Limited and Evans, C‑442/10, EU:C:2011:799, paragraph 30).
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30. In view of this, the Court held that the aim of protecting victims pursued by the First, Second and Third Directives, as has been pointed out in paragraph 27 of this judgment, requires the legal position of the owner of the vehicle, present in the vehicle at the time of the accident as a passenger, to be the same as that of any other passenger who is a victim of the accident ( Candolin and Others , paragraph 33). Likewise, it held that that aim also precludes national rules from restricting unduly the concept of passenger covered by insurance against civil liability in respect of the use of motor vehicles, by excluding from that concept persons who were on board a part of a vehicle which is not designed for their carriage and equipped for that purpose (see, to that effect, Farrell , paragraphs 28 to 30).
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16 Where a sub-buyer of goods purchased from an intermediate seller brings an action against the manufacturer for damages on the ground that the goods are not in conformity, it must be observed that there is no contractual relationship between the sub-buyer and the manufacturer because the latter has not undertaken any contractual obligation towards the former.
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42 As regards the draft national Law, the Court has consistently held that in proceedings under Article 177 of the Treaty it is not for the Court to interpret national law and assess its effects (see, in particular, the judgment of 3 February 1977 in Case 52/76 Benedetti v Munari [1977] ECR 163, paragraph 25).
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25 ATTENDU QU ' IL N ' APPARTIENT PAS A LA COUR DE JUSTICE D ' INTERPRETER , DANS LE CADRE DE LA PROCEDURE DE L ' ARTICLE 177 , LE DROIT NATIONAL ET D ' APPRECIER SES EFFETS ;
QUE DES LORS ELLE NE SAURAIT PAS , DANS CE CADRE , PROCEDER A UNE COMPARAISON DE QUELQUE NATURE QUE CE SOIT , ENTRE LES EFFETS DES DECISIONS DES JURIDICTIONS NATIONALES ET CEUX DE SES PROPRES DECISIONS ;
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51. Moreover, the Court has already held that the Visa Code governs the conditions for issuing, annulling and revoking uniform visas (see, to that effect, Case C‑83/12 PPU Vo [2012] ECR, paragraph 42).
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42. In addition, the Court has held that, even though the Vienna Convention does not bind either the Community or all its Member States, a series of provisions in that convention reflect the rules of customary international law which, as such, are binding upon the Community institutions and form part of the Community legal order (see, to that effect, Racke, paragraphs 24, 45 and 46; see, also, as regards the reference to the Vienna Convention for the purposes of the interpretation of association agreements concluded by the European Communities, Case C‑416/96 El-Yassini [1999] ECR I‑1209, paragraph 47, and Case C‑268/99 Jany and Others [2001] ECR I‑8615, paragraph 35 and the case-law cited).
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46 It follows that the rules of customary international law concerning the termination and the suspension of treaty relations by reason of a fundamental change of circumstances are binding upon the Community institutions and form part of the Community legal order.
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13 Legislation, such as the Waarborgwet, which requires articles of precious metal imported from other Member States, in which they are lawfully traded and hallmarked in accordance with the legislation of those States, to be given an additional hallmark in the importing Member State, renders the imports more difficult and costly. As the German Government has observed, it requires action by an importer, the payment of fees to the supervising authority and leads to delays in marketing the products, which increase the costs of those products.
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21. In that regard, first of all it must be noted that Directive 2001/29 concerns, as is apparent inter alia from Article 1(1) thereof, the legal protection of copyright and related rights, including, for authors, exclusive rights to their works. As for works such as computer programs, they are protected by copyright provided that they are original, that is that they are their author’s own intellectual creation (see Case C‑5/08 Infopaq International [2009] ECR I-6569, paragraph 35).
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35. Similarly, under Articles 1(3) of Directive 91/250, 3(1) of Directive 96/9 and 6 of Directive 2006/116, works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author’s own intellectual creation.
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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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19. In that regard, the Court has held that there is a single supply, particularly where one element is to be regarded as constituting the principal service, whilst another is to be regarded as an ancillary service sharing the tax treatment of the principal service (see Case C-34/99 Primback [2001] ECR I-3833, paragraph 45 and the case-law cited).
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45 Indeed, it follows from the Court's case-law that, where a transaction consists of several elements, there is a single supply, particularly where one element is to be regarded as constituting the principal service, whilst another is to be regarded as an ancillary service sharing the tax treatment of the principal service; and a service is to be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied (see, in this sense, Case C-349/96 Card Protection Plan [1999] ECR I-973, paragraph 30).
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94. Application of Directive 2004/38 solely to the family members of a Union citizen who ‘accompany’ or ‘join’ him is thus equivalent to limiting the rights of entry and residence of family members of a Union citizen to the Member State in which that citizen resides.
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21. It is apparent from the order for reference and, in particular, from the first two questions asked by the national court that the latter considers that the outcome of the main proceedings depends essentially on the interpretation of Article 19 of Regulation No 1768/92. The Court has already held that the European Union legislature included that article in the regulation’s transitional provisions in order to limit the adverse consequences of the expiry or reduction of the six-month period laid down in Article 7(1) of the regulation and to make it possible for products which had already obtained authorisation to be placed on the market as medicinal products on the date on which the regulation entered into force to take advantage of the scheme established by the regulation. Article 19(2) operates, in the circumstances provided for in Article 19(1), as a derogation from Article 7 of the regulation (see, to this effect, Case C-110/95 Yamanouchi Pharmaceutical [1997] ECR I-3251, paragraph 19, and Case C‑127/00 Hässle [2003] ECR I‑14781, paragraph 29).
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29. It was with the intention of limiting such consequences and making it possible for products which had already obtained authorisation to be marketed as medicinal products on the date on which Regulation No 1768/92 entered into force to take advantage of the scheme established by the regulation that the legislature included Article 19, which forms part of the transitional provisions. Article 19(2) operates, in the circumstances provided for in Article 19(1), as a derogation from Article 7 of the regulation (see, to that effect, Case C-110/95 Yamanouchi Pharmaceutical [1997] ECR I-3251, paragraph 19).
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88
It should be noted as a preliminary point that, since, by their fourth and third grounds of appeal respectively, LGE and Philips criticise the General Court for having erred in law, infringed the principle of equal treatment and failed to adjudicate, those grounds cannot be rejected from the outset as being inadmissible, contrary to what is claimed by the Commission.
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39. This conclusion is borne out by the contents of Clause 5(1) of the Framework Agreement, which, in conformity with the third paragraph of the preamble to the Framework Agreement as well as paragraphs 8 and 10 of its general considerations, makes it possible for Member States, when implementing the agreement, to take account of the needs of specific sectors and/or categories of workers involved, provided that that is justified on objective grounds (see, to this effect, Marrosu and Sardino , C-53/04, EU:C:2006:517, paragraph 45, and Kücük , C‑586/10, EU:C:2012:39, paragraph 49).
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45. However, it is important to note that, as is clear from its wording, that provision makes it possible for Member States to take account of the needs of specific sectors and/or categories of workers involved, provided it is justified on objective grounds.
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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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39. That preliminary comment having been made, it is necessary to point out that the prohibition laid down in Article 7(3) of Regulation No 423/2007 is framed in particularly broad terms, as evidenced by the use of the words ‘directly or indirectly’ (see, by analogy, Case C‑117/06 Möllendorf and Möllendorf-Niehuus [2007] ECR I‑8361, paragraph 50, and Case C‑550/09 E and F [2010] ECR I‑6213, paragraph 66).
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50. On the contrary, the prohibition laid down in Article 2(3) of Regulation No 881/2002 is framed in particularly broad terms, as evidenced by the use of the words ‘directly or indirectly’.
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67. Heading 8528 covers, inter alia, reception apparatus for television, whether or not incorporating sound or video recording apparatus. Subheading 8528 71 13 covers apparatus for television, whether or not incorporating sound or video recording apparatus, which are not designed to incorporate a video display or screen, with a microprocessor incorporating a modem for gaining access to the internet, and having a function of interactive information exchange, capable of receiving television signals.
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23. It is also by an assessment in concreto that the competent authority must determine whether or not the sign is descriptive of the characteristics of the goods or services concerned within the meaning of Article 3(1)(c) of Directive 2008/95 or gives rise to any other ground listed also in Article 3 for the refusal of registration ( Koninklijke KPN Nederland , EU:C:2004:86, paragraphs 31 and 32).
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31. Second, when the competent authority examines a trade mark application and, for that purpose, must determine, inter alia, whether or not the mark is devoid of any distinctive character, whether or not it is descriptive of the characteristics of the goods or services concerned and whether or not it has become generic, it cannot carry out the examination in the abstract.
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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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44. According to settled case‑law, the wording used in one language version of a provision of European Union law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of European Union law (see Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 16, and Case C‑187/07 Endendijk [2008] ECR I‑2115, paragraph 23).
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23. According to settled case-law, the wording used in one language version of a Community provision cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of Community law (see Case C-149/97 Institute of the Motor Industry [1998] ECR I-7053, paragraph 16).
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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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26. Toutefois, il convient également de prendre en considération la jurisprudence bien établie selon laquelle, en vertu de l’article 74, paragraphe 1, du règlement n° 40/94, les chambres de recours de l’OHMI doivent procéder à l’examen d’office des faits afin de déterminer si la marque dont l’enregistrement est demandé relève ou non de l’un des motifs de refus d’enregistrement énoncés à l’article 7 du même règlement. Il s’ensuit que les organes compétents de l’OHMI peuvent être amenés à fonder leurs décisions sur des faits qui n’auraient pas été invoqués par le demandeur (voir arrêts du 22 juin 2006, Storck/OHMI, C‑25/05 P, Rec. p. I‑5719, point 50, et du 19 avril 2007, OHMI/Celltech, C‑273/05 P, Rec. p. I‑2883, point 38).
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50. As to whether it is well founded, under Article 74(1) of Regulation No 40/94 OHIM examiners and, on appeal, the Boards of Appeal of OHIM are required to examine the facts of their own motion in order to determine whether the mark registration of which is sought falls under one of the grounds for refusal of registration laid down in Article 7 of that regulation. It follows that the competent bodies of OHIM may be led to base their decisions on facts which have not been put forward by the applicant for the mark.
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29
A taxable person also has a right to deduct even where there is no direct and immediate link between a particular input transaction and an output transaction or transactions giving rise to the right to deduct, where the costs of the services in question are part of his general costs and are, as such, components of the price of the goods or services which he supplies. Such costs do have a direct and immediate link with the taxable person’s economic activity as a whole (see, in particular, judgments of 29 October 2009, SKF, C‑29/08, EU:C:2009:665, paragraph 58, and of 18 July 2013, AES-3C Maritza East 1, C‑124/12, EU:C:2013:488, paragraph 28).
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23. 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, judgment in Douane Advies Bureau Rietveld , C‑541/13, EU:C:2014:2270, paragraph 21 and the case-law cited).
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21. 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. The Explanatory Notes drawn up by the European Commission, as regards the CN, and by the WCO, as regards the HS, may be an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (judgment in Sysmex Europe , C‑480/13, EU:C:2014:2097, paragraphs 29 and 30 and the case-law cited).
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20. Such an analysis is also borne out by the fact, mentioned in the fourth question referred by the national court, that the registration duty is due in certain situations in which there is no supply within Danish territory, such as that of a vehicle transferred by its owner to Denmark in connection with moving house and intended for use on public roads in that Member State or that of a vehicle rebuilt after a road accident and again employed for such use.
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19. It follows from the case-law of the Court that a reply in favour of the first approach outlined in the question referred for a preliminary ruling may be given only if there is a direct link between the service rendered and the consideration received, the sums paid constituting genuine consideration for an identifiable service supplied in the context of a legal relationship in which performance is reciprocal (see, to that effect, Case 102/86 Apple and Pear Development Council [1988] ECR 1443, paragraphs 11, 12 and 16; Case C‑16/93 Tolsma [1994] ECR I‑743, paragraph 14; Case C‑174/00 Kennemer Golf [2002] ECR I‑3293, paragraph 39; and Case C‑210/04 FCE Bank [2006] ECR I‑2803, paragraph 34).
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39 In that regard, according to the case-law of the Court, the basis of assessment for a provision of services is everything which makes up the consideration for the service provided and a provision of services is taxable only if there is a direct link between the service provided and the consideration received (Apple and Pear Development Council, paragraphs 11 and 12, and Case C-16/93 Tolsma [1994] ECR I-743, paragraph 13). A supply of services is therefore taxable only if there exists between the service provider and the recipient a legal relationship in which there is a reciprocal performance, the remuneration received by the provider of service constituting the value actually given in return for the service supplied to the recipient (Tolsma, paragraph 14).
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48. That procedure is initiated at the request of a Member State seeking the approval of national provisions derogating from a harmonisation measure adopted at Community level. In its request, that Member State is at liberty to comment on the decision it asks to have adopted, as is quite clear from Article 95(4) EC, which requires that Member State to state the grounds for maintaining the national provisions in question. The Commission in turn must be able, within the prescribed period, to obtain the information which proves to be necessary without being required once more to hear the applicant Member State.
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25. The Court subsequently found that provisions concerning, in particular, certain marketing methods were selling arrangements within the meaning of Keck and Mithouard (see, in particular, Case C-292/92 Hünermund and Others [1993] ECR I-6787, paragraphs 21 and 22; Joined Cases C-401/92 and C‑402/92 Tankstation ’t Heukske and Boermans [1994] ECR I-2199, paragraphs 12 to 14, and TK-Heimdienst , paragraph 24).
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21 The application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (cited above), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty (Joined Cases C-267 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraphs 16 and 17).
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66. Il convient de rappeler que les autorités nationales compétentes sont tenues, en ce qui concerne les opérations de stockage temporaire, de veiller au respect des obligations résultant de l’article 13 de la directive 2008/98, qui prévoit que les États membres prennent les mesures nécessaires pour assurer que les déchets seront valorisés ou éliminés sans mettre en danger la santé de l’homme et sans que soient utilisés des procédés ou des méthodes susceptibles de porter préjudice à l’environnement. Dans la mesure où les déchets, même stockés temporairement, peuvent causer des dommages importants à l’environnement, il y a lieu en effet de considérer que les dispositions des articles 13 et 36, paragraphe 1, de cette directive visent à mettre en œuvre le principe de précaution, et sont également applicables à l’opération de stockage temporaire (voir, en ce sens, arrêt Commission/Grèce, C‑286/08, EU:C:2009:543, point 72 et jurisprudence citée).
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25. It is settled case-law that any national measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by European Union nationals of the freedom of establishment guaranteed by the Treaty constitutes a restriction within the meaning of Article 49 TFEU (Case C-140/03 Commission v Greece [2005] ECR I-3177, paragraph 27, and Blanco Pérez and Chao Gómez , paragraph 53).
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27. According to settled case-law, Article 43 EC precludes any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Community nationals of the freedom of establishment that is guaranteed by the Treaty (see, in particular, Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32, and Case C‑299/02 Commission v Netherlands [2004] ECR I‑0000, paragraph 15).
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67 If the repackaging is carried out in conditions which cannot affect the original condition of the product inside the packaging, the essential function of the trade mark as a guarantee of origin is safeguarded. Thus, the consumer or end user is not misled as to the origin of the products, and does in fact receive products manufactured under the sole supervision of the trade mark owner.
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55
In the second case, it must be noted, first, that EU law on public procurement, in so far as it concerns, inter alia, public service contracts, is intended to ensure the free movement of services and the opening-up to competition in the Member States which is undistorted and as wide as possible and, secondly, it must be found that the application of national legislation such as that at issue in the main proceedings leads to a result contrary to those objectives, since it excludes for-profit entities from the markets concerned (see, to that effect, judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraphs 51 and 52).
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52. It must therefore be held that a system of agreements such as that instituted by Article 75b of the LR No 41/2006 leads to a result contrary to those objectives. By providing that the competent public authorities are to have recourse, by direct award, on a preferential basis to voluntary associations covered by the agreements to satisfy needs in that area, such legislation excludes for-profit entities from an essential part of the market concerned. According to the case-law of the Court, the award, in the absence of any transparency, of a contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in that contract but are situated in another Member State. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 49 TFEU and 56 TFEU (see, to that effect, judgments in Commission v Ireland , EU:2007:676, paragraphs 30 and 31; Commission v Italy , EU:C:2007:729, paragraph 64; and Commission v Italy , EU:C:2008:102, paragraph 66).
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23 Entitlement to a retirement pension under an occupational scheme is indissolubly linked to the right to join such a scheme. Membership would be of no interest to employees if it did not confer entitlement to the benefits provided by the scheme.
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47. Under Article 7 of Regulation No 1612/68, a migrant worker is to enjoy the same social advantages as those which are made available to national workers. In accordance with settled case-law, the concept of worker referred to by that provision covers frontier workers who have the same entitlement to rely on it as any other worker targeted by that provision (see, to that effect, Meints , paragraph 50, Case C‑337/97 Meeusen [1999] ECR I‑3289, paragraph 21, and Hartmann , paragraph 24).
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24. It should be noted that Mr Hartmann’s status of frontier worker does not in any way prevent him from being able to claim the equal treatment prescribed by Article 7(2) of Regulation No 1612/68 in relation to the grant of social advantages. The Court has already held that frontier workers can rely on the provisions of Article 7 of Regulation No 1612/68 on the same basis as any other worker to whom that article applies. The fourth recital in the preamble to that regulation expressly states that the right of freedom of movement must be enjoyed ‘without discrimination by permanent, seasonal and frontier workers and by those who pursue their activities for the purpose of providing services’, and Article 7 of the regulation refers, without reservation, to a ‘worker who is a national of a Member State’ (Case C‑57/96 Meints [1997] ECR I‑6689, paragraph 50).
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25. In circumstances such as those at issue in the main proceedings, where an infringement of EU law has been discovered after the occurrence of the prejudice, the limitation period begins to run from the time when the irregularity was committed, namely from the time when both the economic operator’s act or omission that infringed EU law and the prejudice caused to the budget of the European Union or budgets managed by it have occurred.
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39. In addition, in paragraph 26 of the judgment in Rotsart de Hertaing the Court held that the transfer of the contracts of employment and employment relationships pursuant to Article 3(1) of Directive 77/187 necessarily takes place on the same date as that of the transfer of the undertaking and cannot be postponed to another date at the will of the transferor or transferee.
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26 The answer to the second part of the second question must therefore be that the transfer of the contracts of employment and employment relationships pursuant to Article 3(1) of the Directive necessarily takes place on the date of the transfer of the undertaking and cannot be postponed to another date at the will of the transferor or transferee.
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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. However, those objectives cannot be attained by undermining in any way the rights of the defence (see, by analogy, with regard to Regulation No 44/2001, Case C-283/05 ASML [2006] ECR I‑12041, paragraph 24). Those rights, which derive from the right to a fair hearing guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), constitute a fundamental right forming part of the general principles of law whose observance the Court ensures (see, inter alia, ASML , paragraph 26).
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24. However, that objective cannot be attained by undermining in any way the right to a fair hearing (see, in particular, Case 49/84 Debaecker and Plouvier [1985] ECR 1779, paragraph 10, Case C-522/03 Scania Finance France [2005] ECR I-8639, paragraph 15, and Case C-3/05 Verdoliva [2006] ECR I-1579, paragraph 26).
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19. Thus, Article 13 of Regulation No 1346/2000 aims to protect the legitimate expectations of a person who has benefited from an act detrimental to all the creditors by providing that the act will continue to be governed, even after insolvency proceedings have been opened, by the law that was applicable at the date on which it was concluded, namely the lex causae.
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39. Therefore, EU law does not always require a national court to disapply domestic rules of procedure conferring finality on a judgment, even if to do so would make it possible to remedy a breach of EU law by the decision at issue (see judgments in Kapferer , C‑234/04, EU:C:2006:178, paragraph 22, Fallimento Olimpiclub , C‑2/08, C:2009:506, paragraph 23, Commission v Slovak Republic , C‑507/08, EU:C:2010:802, paragraph 60, Impresa Pizzarotti , C‑213/13, EU:C:2014:2067, paragraph 59, and Târșia , C‑69/14, EU:C:2015:662, paragraph 29).
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29. Therefore, EU law does not require a national court to disapply domestic rules of procedure conferring finality on a judgment, even if to do so would make it possible to remedy a domestic situation which is incompatible with EU law (judgment in Impresa Pizzarotti , C‑213/13, EU:C:2014:2067, paragraph 59 and the case-law cited).
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47 Further, the principal aim of Regulation No 1078/77 was to re-establish equilibrium in the market for milk and milk products, on which there was a substantial surplus, by introducing a system of premiums for the non-marketing of milk and milk products.
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28. In particular, Article 5 of the directive confers on the trade mark proprietor exclusive rights which entitle him, inter alia, to prevent any third party from importing goods bearing the mark, offering the goods, or putting them on the market or stocking them for these purposes. Article 7(1) of the directive contains an exception to that rule, in that it provides that the trade mark proprietor’s rights are exhausted where the goods have been put on the market in the EEA by him or with his consent (see, inter alia, Makro Zelfbedieningsgroothandel and Others , paragraph 21 and the case‑law cited).
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21. In particular, Article 5 of the directive confers on the trade mark proprietor exclusive rights which entitle him, inter alia, to prevent any third party from importing goods bearing the mark, offering the goods, or putting them on the market or stocking them for these purposes. Article 7(1) of the directive contains an exception to that rule, in that it provides that the trade mark proprietor’s rights are exhausted where the goods have been put on the market in the EEA by him or with his consent ( Zino Davidoff and Levi Strauss , paragraph 40; Case C-244/00 Van Doren + Q [2003] ECR I-3051, paragraph 33; and Case C-16/03 Peak Holding [2004] ECR I‑11313, paragraph 34).
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19 ALTHOUGH IT IS TRUE THAT THE LETTER OF TERMINATION DATED 12 MARCH 1968 FROM THE EUROPEAN DEMOCRATIC UNION GROUP MUST BE REGARDED AS HAVING ALONE GIVEN RISE TO THE CLAIM IN THE ACTION , THE EFFECT OF THE DELAY IN INSTITUTING PROCEEDINGS SHOULD NOT BE STRICTLY APPLIED TO THE APPLICANT IN VIEW OF THE DIFFICULTY WHICH HE EXPERIENCED IN IDENTIFYING THE AUTHORITY COMPETENT TO RECEIVE HIS COMPLAINT AND THE UNCERTAINTY WITH REGARD TO THE PERIOD OF NOTICE WHICH RESULTED FROM THE EXTENSION REQUESTED ON HIS BEHALF BY THE EUROPEAN DEMOCRATIC UNION GROUP AND GRANTED BY THE SECRETARY-GENERAL OF THE PARLIAMENT .
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34. As the Court has held, that case-law can be applied to agreements which, like the framework agreement on parental leave, are the product of a dialogue, based on Article 139(1) EC, between management and labour at Community level and which have been implemented in accordance with Article 139(2) EC by a directive of the Council of the European Union, of which they are thus an integral component (see Impact , paragraph 58, and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others [2009] ECR I‑0000, paragraph 195).
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195. As the Court has already held, that case-law can be applied to agreements which, like the Framework Agreement, are the product of a dialogue, based on Article 139(1) EC, between management and labour at Community level and which have been implemented in accordance with Article 139(2) EC by a directive of the Council, of which they are thus an integral component ( Impact , paragraph 58).
– Clause 5(1) of the Framework Agreement
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69. In cases where those assets have been sold separately, at the market price, the buyers are not required to repay the aid. Because of this separate sale, the subsidised activity disappears, which leaves scope for the beneficiary company’s competitors. In this way, the recovery of aid from the seller, whether it be from the beneficiary company itself or from the assets of the bankrupt or liquidated company, makes it possible to eliminate the distortion of competition.
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19 It should be observed that Article 90(3) of the Treaty requires the Commission to ensure that Member States comply with their obligations as regards the undertakings referred to in Article 90(1) and expressly empowers it to take action for that purpose by way of directives and decisions. The Commission is thus empowered to determine that a given State measure is incompatible with the rules of the Treaty and to indicate what measures the State to which a decision is addressed must adopt in order to comply with its obligations under Community law (see Netherlands and Others v Commission, cited above, paragraphs 25 and 28, and Case C-107/95 P Bundesverband der Bilanzbuchhalter v Commission [1997] ECR I-947, paragraph 23).
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25 Article 90(3) requires the Commission to ensure that Member States comply with their obligations as regards the undertakings referred to in Article 90(1) and expressly empowers it to take action for that purpose by two different legal instruments, namely directives and decisions.
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35. In this connection, it is true that in paragraph 75 of Müller-Fauré and van Riet , after emphasising how difficult it is to distinguish ‘hospital services’ from ‘non‑hospital services’, the Court pointed out that services provided in a hospital environment but that could also be provided by a practitioner in his surgery or in a health centre could, for that reason, be placed on the same footing as non-hospital services.
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91
In addition, it is for the Member State seeking to limit the temporal effects of a judgment on a preliminary ruling to produce, before the Court, figures showing the risk of serious economic repercussions (judgment of 7 July 2011, Nisipeanu, C‑263/10, not published, EU:C:2011:466, paragraph 34 and the case-law cited, and, by analogy, judgment of 9 April 2014, T-Mobile Austria, C‑616/11, EU:C:2014:242, paragraph 53).
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34. Quant au risque de troubles graves, il y a lieu de rappeler que l’existence de conséquences financières découlant pour un État membre d’un arrêt rendu à titre préjudiciel ne justifie pas, par elle-même, la limitation des effets de cet arrêt dans le temps (arrêts du 20 septembre 2001, Grzelczyk, C-184/99, Rec. p. I-6193, point 52; du 15 mars 2005, Bidar, C-209/03, Rec. p. I-2119, point 68, et Brzeziński, précité, point 58). Il incombe à l’État membre sollicitant une telle limitation de produire, devant la Cour, des données chiffrées établissant le risque de répercussions économiques graves (arrêts précités Brzeziński, points 59 et 60, ainsi que Kalinchev, points 54 et 55).
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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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It should be noted that, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to points of law. The General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgments of 2 September 2010, Calvin Klein TrademarkTrust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49, of 19 March 2015, Mega Brands International v OHIM, C‑182/14 P, EU:C:2015:187, paragraph 47 and case-law cited, and of 26 October 2016, Westermann Lernspielverlage v EUIPO, C‑482/15 P, EU:C:2016:805, paragraph 35 and case-law cited).
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47. Under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence submitted to it. The appraisal of those facts and evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgments in Nestlé v OHIM , EU:C:2007:539, paragraph 53, and United States Polo Association v OHIM , EU:C:2012:550, paragraph 62).
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40 CONSEQUENTLY ANY DECISION ORDERING EXPULSION MADE BY THE AUTHORITIES OF A MEMBER STATE AGAINST A NATIONAL OF ANOTHER MEMBER STATE COVERED BY THE TREATY WOULD , IF IT WERE BASED SOLELY ON THAT PERSON ' S FAILURE TO COMPLY WITH THE LEGAL FORMALITIES CONCERNING THE CONTROL OF ALIENS OR ON THE LACK OF A RESIDENCE PERMIT , BE CONTRARY TO THE PROVISIONS OF THE TREATY .
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89. It is true that the right to consult the file in a proceeding under Article 81 EC and the right of access to documents pursuant to Regulation No 1049/2001 are legally distinct. However, the fact remains that they lead to a comparable situation from a functional point of view. Whatever the legal basis on which it is granted, access to the file enables the interested parties to obtain the observations and documents submitted to the Commission by the undertakings concerned and by third parties (see, by analogy, Commission v Technische Glaswerke Ilmenau , paragraph 59; Commission v Éditions Odile Jacob , paragraph 120; and Commission v Agrofert Holding , paragraph 61).
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120. It is true that the right to consult the administrative file in the context of merger control proceedings and the right of access to documents, pursuant to Regulation No 1049/2001, are legally distinct, but the fact remains that they lead to a comparable situation from a functional point of view. Whatever the legal basis on which it is granted, access to the file enables the interested parties to obtain all the observations and documents submitted to the Commission (see, to that effect, Commission v Technische Glaswerke Ilmenau , paragraph 59).
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25. The information that was available to the intermediary or of which he should reasonably have been aware must also be taken into account, particularly because of his contractual obligations. In that respect, it is also important to know whether the import duties to be paid were indicated on the contracts of sale or on other documentation available to the intermediary, which would suggest that the introduction of the goods into the territory of the European Union would be carried out in a lawful manner.
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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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68. With regard, thirdly, to the activities carried out by notaries in divorce matters, it must be noted that, in accordance with Articles 325 and 327 of the Law on the notarial profession, a notary has powers to dissolve a marriage where the spouses have expressed their agreement on the principle of the divorce and where, if they have a child in common or jointly own a property, they have concluded a prior contract concerning the custody of the child, the arrangements for visiting rights and the means necessary for its maintenance or the division of the property.
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48
As the Advocate General stated in point 65 of her Opinion, an appellant must also indicate precisely the evidence which has been distorted and show the errors of appraisal which have allegedly been made (see, inter alia, judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 16).
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46. Admittedly, as the Belgian Government has pointed out, in the cases which gave rise to the judgments in My (C‑293/03, EU:C:2004:821) and Melchior (C‑647/13, EU:C:2015:54) and the order in Ricci and Pisaneschi (C‑286/09 and C‑287/09, EU:C:2010:420), the periods of work completed in the service of the EU institutions or bodies were not taken into account in order to assess whether the persons concerned were entitled to the benefits provided for by the social security scheme of the Member State concerned which they could have claimed had, during those periods, they been a member of that scheme, whereas, in the case in the main proceedings, the period of work completed by Ms Wojciechowski in the service of the Commission was indeed taken into account in order to calculate her retirement pension as an employed person from the Belgian scheme.
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48. Such consequences cannot be accepted in the light of the duty of genuine cooperation and assistance which Member States owe the Community and which finds expression in the obligation laid down in Article 10 EC to facilitate the achievement of the Community’s tasks.
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75. En effet, seules ces propositions de mesures utiles sont soumises à l’acceptation des États membres, comme l’indique le point 197 des lignes directrices agricoles, alors que les autres dispositions de ces dernières constituent seulement des règles générales indicatives qui s’imposent à la Commission (voir, en ce sens, arrêt du 13 juin 2002, Pays-Bas/Commission, C‑382/99, Rec. p. I‑5163, point 24 et jurisprudence citée), sans lier les États membres. Elles ne sauraient a fortiori lier le Conseil dans la mesure où l’article 108, paragraphe 2, troisième alinéa, TFUE lui donne le pouvoir de déroger, dans des circonstances exceptionnelles, aux dispositions de l’article 107 TFUE ou aux règlements prévus à l’article 109 TFUE.
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24 In the absence of Community rules governing a matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions or render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, in particular, Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599, paragraph 12, and the cases cited).
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12 As regards the first part of the question, as thus reworded, the Court has consistently held that, under the principle of cooperation laid down in Article 5 of the Treaty, it is for the Member States to ensure the legal protection which individuals derive from the direct effect of Community law. In the absence of Community rules governing a matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, in particular, the judgments in Case 33/76 Rewe v Landwirtschaftskammer fuer das Saarland [1976] ECR 1989, paragraph 5, Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043, paragraphs 12 to 16, Case 68/79 Hans Just v Danish Ministry for Fiscal Affairs [1980] ECR 501, paragraph 25, Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 14, Joined Cases 331/85, 376/85 and 378/85 Bianco and Girard v Directeur Général des Douanes des Droits Indirects [1988] ECR 1099, paragraph 12, Case 104/86 Commission v Italy [1988] ECR 1799, paragraph 7, Joined Cases 123/87 and 330/87 Jeunehomme and EGI v Belgian State [1988] ECR 4517, paragraph 17, Case C-96/91 Commission v Spain [1992] ECR I-3789, paragraph 12, and Joined Cases C-6/90 and C-9/90 Francovich and Others v Italian Republic [1991] ECR I-5357, paragraph 43).
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29 Consequently, the taxable amount attributable to the manufacturer as a taxable person must be the amount corresponding to the price at which he sold the goods to the wholesalers or retailers, less the value of those coupons.
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37. Furthermore, it can be seen from the case-law of the Court of Justice that, although Regulation No 1408/71 does not expressly cover family situations following a divorce, there is nothing to justify the exclusion of such situations from the scope of that regulation (see Case 149/82 Robards [1983] ECR p. 171, paragraph 15; Kulzer , paragraph 32; Case C‑255/99 Humer [2002] ECR I‑1205, paragraph 42; and Case C‑363/08 Slanina [2009] ECR I-0000, paragraph 30).
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30. In that regard, it should be noted that the fact that Ms Slanina and her ex-husband are divorced is irrelevant. The Court has already held that although Regulation No 1408/71 does not expressly cover family situations following a divorce there is nothing to justify the exclusion of such situations from the scope of Regulation No 1408/71. One of the normal consequences of a divorce is that custody of the children is granted to one of the parents, with whom those children will reside. It is possible, for a variety of reasons (in this case as the result of a divorce), that the parent with custody of a child will leave his or her Member State of origin and settle in another Member State in order to work there, as in Humer , or, as in the case in the main proceedings here, to take up employment there only some years after establishing his or her residence there. In such a case, the residence of the minor child will also be transferred to that other Member State (see Humer , paragraphs 42 and 43).
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10. D’autre part, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé (voir, notamment, arrêts du 14 septembre 2004, Commission/Espagne, C‑168/03, Rec. p. I‑8227, point 24, et du 17 janvier 2008, Commission/Allemagne, C‑152/05, Rec. p. I‑39, point 15).
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37 It is settled law that where the wording of secondary Community law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the Treaty rather than the interpretation which leads to its being incompatible with the Treaty (Case 218/82 Commission v Council [1983] ECR 4063, paragraph 15). Consequently, even though the provision to the effect that the framework would remain valid until the following review organized by the Commission may appear ambiguous, it must be understood in a manner consistent with the Treaty provision it is intended to implement (see, as an instance of the application of that principle, Joined Cases 201/85 and 202/85 Klensch v Secrétaire d' Etat [1986] ECR 3477, paragraph 21).
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21 IN THIS CONNECTION IT IS APPROPRIATE TO POINT OUT THAT , IN ITS JUDGMENT OF 13 DECEMBER 1983 IN CASE 218/82 COMMISSION V COUNCIL ( 1983 ) ECR 4063 , THE COURT TOOK THE VIEW THAT WHEN IT IS NECESSARY TO INTERPRET A PROVISION OF SECONDARY COMMUNITY LAW , PREFERENCE SHOULD AS FAR AS POSSIBLE BE GIVEN TO THE INTERPRETATION WHICH RENDERS THE PROVISION CONSISTENT WITH THE TREATY ; IN THIS CASE REGARD MUST BE HAD SPECIFICALLY TO THE REQUIREMENT NOT TO DISCRIMINATE BETWEEN PRODUCERS WITHIN THE COMMUNITY WHICH IS LAID DOWN IN ARTICLE 40 ( 3 ) OF THE EEC TREATY .
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32. In the same way, as stated in paragraph VIII of the explanatory note to the HS on general rule 3(b), the factor which determines the essential character of the goods may, depending on the type of goods, be determined for example by the nature of the constituent material or components, its bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods.
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49. That provision empowers the Community legislature to adopt measures to improve the conditions for the establishment and functioning of the internal market and they must genuinely have that object, contributing to the elimination of obstacles to the economic freedoms guaranteed by the EC Treaty (see, in particular, Case C‑376/98 Germany v Parliament and Council [2000] ECR I‑8419, paragraphs 83, 84 and 95; Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I‑11453, paragraph 60; and Case C‑436/03 Parliament v Council [2006] ECR I‑3733, paragraph 38).
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84 Moreover, a measure adopted on the basis of Article 100a of the Treaty must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market. If a mere finding of disparities between national rules and of the abstract risk of obstacles to the exercise of fundamental freedoms or of distortions of competition liable to result therefrom were sufficient to justify the choice of Article 100a as a legal basis, judicial review of compliance with the the proper legal basis might be rendered nugatory. The Court would then be prevented from discharging the function entrusted to it by Article 164 of the EC Treaty (now Article 220 EC) of ensuring that the law is observed in the interpretation and application of the Treaty.
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73. The same report points out that the green tides of the Brittany coast, which generally last from May to August-September, are caused by a rapid proliferation of green Ulva algae following the enrichment of the water by nutrients. Those opportunistic algae are easily torn from their substrate, following which they drift about and end by washing up on beaches, often covering them to some depth. Green tides strongly disturb or even render impossible normal tourist activities such as bathing, fishing, hiking along the coast, etc. Communes must collect the algae in order to maintain tourist activity.
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33. Indeed, although it is true that the Court has held, in its judgment in Peek & Cloppenburg (C‑456/06, EU:C:2008:232, paragraphs 33, 36 and 41), which concerned the option of using reproductions of a protected work, that the concept of distribution to the public of the original of a work or a copy thereof, for the purpose of Article 4(1) of Directive 2001/29, entails a transfer of the ownership of that object, the fact remains that an infringement of the distribution right can be observed where consumers located in the territory of the Member State in which that work is protected are invited, by targeted advertising, to acquire ownership of the original or a copy of that work.
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33. Since Article 4(1) of Directive 2001/29 provides, in such a context, for ‘distribution by sale or otherwise’, that concept should be interpreted in accordance with those Treaties as a form of distribution which entails a transfer of ownership.
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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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28
Identification of one of the connecting factors recognised by the case-law set out in paragraph 25 of the present judgment must therefore make it possible to establish the jurisdiction of the court objectively best placed to determine whether the elements that constitute liability of the person sued do in fact exist, so that only the court within whose jurisdiction the relevant connecting factor is situated may validly be seised (see judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 75 and the case-law cited).
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75. Identification of one of the linking factors recognised by the case-law set out in paragraph 72 above must therefore make it possible to establish the jurisdiction of the court objectively best placed to determine whether the elements that constitute liability do in fact exist, so that only the court within whose jurisdiction the relevant linking factor is situated may validly be seised (judgment in CDC Hydrogen Peroxide , C‑352/13, EU:C:2015:335, paragraph 41 and the case-law cited).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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61. It also follows from settled case-law that a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation (see, inter alia, Case 106/77 Simmenthal [1978] ECR 629, paragraphs 21 to 24; Case 130/78 Salumificio di Cornuda [1979] ECR 867, paragraphs 23 to 27; and Case C-213/89 Factortame and Others [1990] ECR I-2433, paragraphs 19 to 21).
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22ACCORDINGLY ANY PROVISION OF A NATIONAL LEGAL SYSTEM AND ANY LEGISLATIVE , ADMINISTRATIVE OR JUDICIAL PRACTICE WHICH MIGHT IMPAIR THE EFFECTIVENESS OF COMMUNITY LAW BY WITHHOLDING FROM THE NATIONAL COURT HAVING JURISDICTION TO APPLY SUCH LAW THE POWER TO DO EVERYTHING NECESSARY AT THE MOMENT OF ITS APPLICATION TO SET ASIDE NATIONAL LEGISLATIVE PROVISIONS WHICH MIGHT PREVENT COMMUNITY RULES FROM HAVING FULL FORCE AND EFFECT ARE INCOMPATIBLE WITH THOSE REQUIREMENTS WHICH ARE THE VERY ESSENCE OF COMMUNITY LAW .
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23 The answer to the third question must therefore be that Article 11(A)(1)(a) of the Sixth Directive is to be interpreted as meaning that, when a supplier has sold a voucher to a buyer at a discount and promised subsequently to accept that voucher at its face value in full or part payment of the price of goods purchased by a customer who was not the buyer of the voucher, and who does not normally know the actual price at which the voucher was sold by the supplier, the consideration represented by the voucher is the sum actually received by the supplier upon the sale of the voucher.
The other questions
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21. The referring court considers, first of all, referring to the judgment in Eggers (13/78, EU:C:1978:182, paragraph 25), that the provisions in question of Law No 8/2013 may constitute measures whose effect is equivalent to quantitative restrictions contrary to EU law, since a presumption of quality which is linked to a requirement that the whole or part of the production process should take place on national territory, thereby restricting or treating unfavourably a process some or all of the phases whereof are carried out in other Member States, is incompatible with the single market.
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25HOWEVER DESIRABLE MAY BE THE INTRODUCTION OF A POLICY ON QUALITY BY A MEMBER STATE , SUCH A POLICY CAN ONLY BE DEVELOPED WITHIN THE COMMUNITY BY MEANS WHICH ARE IN ACCORDANCE WITH THE FUNDAMENTAL PRINCIPLES OF THE TREATY .
CONSEQUENTLY , THE MEMBER STATES ARE EMPOWERED TO LAY DOWN QUALITY STANDARDS FOR PRODUCTS MARKETED ON THEIR TERRITORY AND MAY MAKE THE USE OF DESIGNATIONS OF QUALITY SUBJECT TO COMPLIANCE WITH SUCH STANDARDS , BUT ONLY ON THE CONDITION THAT SUCH STANDARDS AND DESIGNATIONS - UNLIKE THE POSITION IN THE CASE OF REGISTERED DESGINATIONS OF ORIGIN AND INDICATIONS OF ORIGIN - ARE NOT LINKED TO A REQUIREMENT THAT THE PRODUCTION PROCESS FOR THE PRODUCTS IN QUESTION BE CARRIED ON WITHIN THE COUNTRY BUT ARE DEPENDENT SOLELY ON THE EXISTENCE OF THE INTRINSIC OBJECTIVE CHARACTERISTICS WHICH GIVE THE PRODUCTS THE QUALITY REQUIRED BY LAW .
A PRESUMPTION OF QUALITY WHICH IS LINKED TO A REQUIREMENT THAT THE WHOLE OR PART OF THE PRODUCTION PROCESS SHOULD TAKE PLACE ON NATIONAL TERRITORY , THEREBY RESTRICTING OR TREATING UNFAVOURABLY A PROCESS SOME OR ALL OF THE PHASES WHEREOF ARE CARRIED OUT IN OTHER MEMBER STATES IS , ALWAYS EXCEPTING THE RULES RELATING TO REGISTERED DESIGNATIONS OF ORIGIN AND INDICATIONS OF ORIGIN , INCOMPATIBLE WITH THE COMMON MARKET .
THIS IS MORE PARTICULARLY THE CASE WHERE THE REQUIREMENT THAT THE WHOLE OR PART OF THE PRODUCTION PROCESS SHOULD TAKE PLACE ON NATIONAL TERRITORY IS , IN SUBSTANCE , JUSTIFIED ONLY BY A RULE WHICH , BY INTRODUCING THE PRINCIPLE OF ' ' UNDIVIDED RESPONSIBILITY ' ' , IS INTENDED TO FACILITATE QUALITY CONTROLS WHEREAS SUCH CONTROLS MAY BE CARRIED OUT JUST AS EFFECTIVELY BY MEANS WHICH ARE LESS RESTRICTIVE OF TRADE BETWEEN MEMBER STATES .
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Or, le Tribunal a, au point 67 de l’arrêt attaqué, relevé le caractère subsidiaire de l’analyse relative à ladite qualification
en précisant, à bon droit, que, dans l’hypothèse où les autorités allemandes n’auraient pas commis une erreur manifeste d’appréciation
en retenant une telle qualification, ce fait n’entraînerait pas à lui seul l’annulation de la décision litigieuse. En effet,
pour prononcer une telle annulation, encore faudrait-il que les versements de contributions pour le maintien d’une réserve
de capacités en cas d’épizootie n’aient pas constitué un avantage économique pour la ZT, au sens des conditions dégagées dans
l’arrêt Altmark Trans et Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415).
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44. Nevertheless, the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to confirm its own 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 facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 19; and Conseil général de la Vienne , paragraph 20).
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21 THE REPLY TO THE FIRST QUESTION MUST ACCORDINGLY BE THAT WHILST , ACCORDING TO THE INTENDED ROLE OF ARTICLE 177 , AN ASSESSMENT OF THE NEED TO OBTAIN AN ANSWER TO THE QUESTIONS OF INTERPRETATION RAISED , REGARD BEING HAD TO THE CIRCUMSTANCES OF FACT AND OF LAW INVOLVED IN THE MAIN ACTION , IS A MATTER FOR THE NATIONAL COURT IT IS NEVERTHELESS FOR THE COURT OF JUSTICE , IN ORDER TO CONFIRM ITS OWN JURISDICTION , TO EXAMINE , WHERE NECESSARY , THE CONDITIONS IN WHICH THE CASE HAS BEEN REFERRED TO IT BY THE NATIONAL COURT .
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118. Relevant considerations in this respect include factors such as the seriousness of the infringement and the length of time for which the infringement has persisted since the delivery of the judgment establishing it (see, to that effect, judgment in Commission v Italy , EU:C:2011:740, paragraph 94), and the relevant Member State’s ability to pay (see judgment in Commission v Spain , EU:C:2014:316, paragraph 80).
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47. As is apparent both from the wording of Article 4(2) of the Rome Convention, which makes express provision for the application of Article 4(5), and from the Court’s case-law, that presumption may be disregarded when the requirements of Article 4(5) are met (see, to that effect, judgment in ICF , EU:C:2009:617, paragraphs 63 and 64).
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64. In the light of those considerations, the answer to the fifth question must be that Article 4(5) of the Convention must be construed as meaning that, where it is clear from the circumstances as a whole that the contract is more closely connected with a country other than that determined on the basis of one of the criteria set out in Article 4(2) to (4) of the Convention, it is for the court to disregard those criteria and apply the law of the country with which the contract is most closely connected.
Costs
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45. In that regard, it must be remembered that, as derogations from the fundamental rule of freedom of establishment, Articles 45 EC and 55 EC must be interpreted in a manner which limits their scope to what is strictly necessary for safeguarding the interests which those provisions allow the Member States to protect (Case 147/86 Commission v Greece [1988] ECR 1637, paragraph 7, and Case C-114/97 Commission v Spain [1998] ECR I-6717, paragraph 34).
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