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31 That provision is framed in terms corresponding to those used by the Court in judgments which, in interpreting Articles 30 and 36 of the Treaty, have recognized in Community law the principle of the exhaustion of the rights conferred by a trade mark. It reiterates the case-law of the Court to the effect that the owner of a trade mark protected by the legislation of a Member State cannot rely on that legislation to prevent the importation or marketing of a product which was put on the market in another Member State by him or with his consent (see, in particular, Case 16/74 Centrafarm v Winthrop [1974] ECR 1183, paragraphs 7 to 11; Case C-10/89 CNL-SUCAL v HAG GF [1990] ECR I-3711, paragraph 12 ("HAG II"); and Case C-9/93 IHT Internationale Heiztechnik v Ideal Standard [1994] ECR I-2789, paragraphs 33 and 34). | 33 On the basis of the second sentence of Article 36 of the Treaty the Court has consistently held:
"Inasmuch as it provides an exception to one of the fundamental principles of the common market, Article 36 in fact only admits of derogations from the free movement of goods where such derogations are justified for the purpose of safeguarding rights which constitute the specific subject-matter of this property.
In relation to trade marks, the specific subject-matter of the industrial property is the guarantee that the owner of the trade mark has the exclusive right to use that trade mark, for the purpose of putting products protected by the trade mark into circulation for the first time, and is therefore intended to protect him against competitors wishing to take advantage of the status and reputation of the trade mark by selling products illegally bearing that trade mark.
An obstacle to the free movement of goods may arise out of the existence, within a national legislation concerning industrial and commercial property, of provisions laying down that a trade mark owner' s right is not exhausted when the product protected by the trade mark is marketed in another Member State, with the result that the trade mark owner can [oppose] importation of the product into his own Member State when it has been marketed in another Member State.
Such an obstacle is not justified when the product has been put onto the market in a legal manner in the Member State from which it has been imported, by the trade mark owner himself or with his consent, so that there can be no question of abuse or infringement of the trade mark.
In fact, if a trade mark owner could prevent the import of protected products marketed by him or with his consent in another Member State, he would be able to partition off national markets and thereby restrict trade between Member States, in a situation where no such restriction was necessary to guarantee the essence of the exclusive right flowing from the trade mark" (see Case 16/74 Centrafarm v Winthrop [1974] ECR 1183, paragraphs 7 to 11). | 19 According to settled case-law, national courts may consider the validity of a Community act and, if they consider that the grounds put forward before them by the parties in support of invalidity are unfounded, they may reject them, concluding that the measure is completely valid. In so doing, they are not calling into question the existence of the Community measure (Case 314/85 Foto-Frost [1987] ECR 4199, paragraph 14). |
40
In that context, it should be pointed out that there is nothing to prevent a Member State from providing for the imposition of a fine for the infringement of a requirement such as that of submitting to the competent authorities a list of statements from purchasers of heating fuel sold. The power which a Member State has to impose such a penalty must be exercised in accordance with EU law and its general principles, including the principle of proportionality. In order to assess whether that penalty is consistent with that principle, it is for the national courts to take into account, inter alia, the nature and degree of seriousness of the infringement which that penalty seeks to sanction and also the means of establishing its amount (see, by analogy, judgment of 19 July 2012 in Rēdlihs, C‑263/11, EU:C:2012:497, paragraphs 44 to 47). | 46. Such penalties must not, however, go further than is necessary to attain those objectives (see, to that effect, Joined Cases C-95/07 and C-96/07 Ecotrade [2008] ECR I-3457, paragraphs 65 to 67, and Case C-284/11 EMS-Bulgaria Transport [2012] ECR, paragraph 67). | 36 The Court has held, in this respect, that a partial reduction of social charges devolving upon undertakings of a particular industrial sector constitutes aid within the meaning of Article 92(1) of the Treaty if that measure is intended partially to exempt those undertakings from the financial charges arising from the normal application of the general social security system, without there being any justification for this exemption on the basis of the nature or general scheme of this system (judgment in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 15; to the same effect, judgment in Case C-301/87 France v Commission [1990] ECR I-307, paragraph 41). |
81. However, it must be borne in mind that, if the grounds of a judgment of the Court of First Instance disclose an infringement of Community law but its operative part is shown to be well founded on other legal grounds, the appeal must be dismissed (see, Case C‑30/91 P Lestelle v Commission [1992] ECR I‑3755, paragraph 28; Case C‑210/98 P Salzgitter v Commission [2000] ECR I‑5843, paragraph 58; and Case C‑312/00 P Commission v Camar and Tico [2002] ECR I‑11355, paragraph 57). | 28 In that connection, it should be emphasized that if the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but the operative part appears well founded on other legal grounds, the appeal must be dismissed. | 137. In a situation such as that in the present case, the liability of Areva and Alstom, as parent companies, for the infringement committed is wholly derived from the liability of a subsidiary which belonged to those companies in succession (see, by analogy, Case C‑286/11 P Commission v Tomkins [2013] ECR, paragraphs 43 and 49). |
23 First, it should be recalled that it is for the Member States, by virtue of Article 5 of the EC Treaty, to ensure that Community regulations, particularly those concerning the common agricultural policy, are implemented within their territory. Similarly, it follows from Article 8(1) of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970 (1), p. 218), that Member States must take the measures necessary to recover sums lost as a result of irregularities or negligence. The exercise of any discretion to decide whether or not it would be expedient to demand repayment of Community funds unduly or irregularly granted would be inconsistent with that duty (Deutsche Milchkontor, paragraphs 17, 18 and 22). | 17 ACCORDING TO THE GENERAL PRINCIPLES ON WHICH THE INSTITUTIONAL SYSTEM OF THE COMMUNITY IS BASED AND WHICH GOVERN THE RELATIONS BETWEEN THE COMMUNITY AND THE MEMBER STATES , IT IS FOR THE MEMBER STATES , BY VIRTUE OF ARTICLE 5 OF THE TREATY , TO ENSURE THAT COMMUNITY REGULATIONS , PARTICULARLY THOSE CONCERNING THE COMMON AGRICULTURAL POLICY , ARE IMPLEMENTED WITHIN THEIR TERRITORY . IN SO FAR AS COMMUNITY LAW , INCLUDING ITS GENERAL PRINCIPLES , DOES NOT INCLUDE COMMON RULES TO THIS EFFECT , THE NATIONAL AUTHORITIES WHEN IMPLEMENTING COMMUNITY REGULATIONS ACT IN ACCORDANCE WITH THE PROCEDURAL AND SUBSTANTIVE RULES OF THEIR OWN NATIONAL LAW ; HOWEVER , AS THE COURT STATED IN ITS JUDGMENT OF 6 JUNE 1972 IN CASE 94/71 ( SCHLUTER & MAACK V HAUPTZOLLAMT HAMBURG-JONAS ( 1972 ) ECR 307 ), THIS RULE MUST BE RECONCILED WITH THE NEED TO APPLY COMMUNITY LAW UNIFORMLY SO AS TO AVOID UNEQUAL TREATMENT OF PRODUCERS AND TRADERS .
| 39. Thus, for a national measure to be classified as State aid, first, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer an advantage on the recipient; fourth, it must distort or threaten to distort competition (see to that effect, in particular, Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraphs 38 and 39; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 56; and Case C‑169/08 Presidente del Consiglio dei Ministri [2009] ECR I‑0000, paragraph 52). |
48. According to settled case-law, migrant workers are guaranteed certain rights linked to the status of worker even when they are no longer in an employment relationship (see, to that effect, Case 39/86 Lair [1988] ECR 3161, paragraph 36; Case C‑85/96 Martínez Sala [1998] ECR I-2691, paragraph 32; Case C‑35/97 Commission v France [1998] ECR I‑5325, paragraph 41; Case C‑413/01 Ninni‑Orasche [2003] ECR I‑13187, paragraph 34; and Case C‑138/02 Collins [2004] ECR I‑2703, paragraph 27). | 36 It is therefore clear that migrant workers are guaranteed certain rights linked to the status of worker even when they are no longer in an employment relationship . | 45. While the imposition of a penalty payment seems particularly suitable for the purpose of inducing a Member State to put an end as soon as possible to a breach of obligations which, in the absence of such a measure, would be likely to persist, the imposition of a lump sum is prompted more by the assessment of the consequences for private and public interests of the failure by the Member State concerned to comply with its obligations, in particular where the breach has persisted for a long period since the judgment initially establishing it was delivered (Case C‑304/02 Commission v France , paragraph 81). |
Le deuxième moyen concernant uniquement la troisième de ces conditions, il y a lieu de relever que, selon une jurisprudence
constante, sont considérées comme des aides d’État les interventions qui, sous quelque forme que ce soit, sont susceptibles
de favoriser directement ou indirectement des entreprises, ou qui doivent être considérées comme un avantage économique que
l’entreprise bénéficiaire n’aurait pas obtenu dans des conditions normales de marché (voir, en ce sens, arrêts Enirisorse,
C‑237/04, EU:C:2006:197, point 30; Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU:C:2006:208, point 59, ainsi que
Commission/Deutsche Post, C‑399/08 P, EU:C:2010:481, point 40). | 30. In this instance, although it is for the national court to make the final assessment in this respect, various aspects of the documents available to the Court indicate that Sotacarbo’s activity is liable to be of an economic nature. | 22 The Court stated at paragraph 22 of its judgment in Casarin, cited above, that, in order to determine whether the increase in the progression coefficient of the differential tax above the 18 CV threshold has a discriminatory or protective effect in the sense contemplated by Article 95 of the Treaty, it must be examined whether that increase may deter consumers from purchasing vehicles with a fiscal horsepower of over 18 CV, which are all of foreign manufacture, to the benefit of vehicles of domestic manufacture. |
46. Consequently, a measure by which the public authorities grant certain undertakings a tax exemption which, although not involving the transfer of State resources, places the recipients of the exemption in a more favourable financial position than that of other taxpayers amounts to State aid within the meaning of Article 87(1) EC. Likewise, a measure allowing certain undertakings a tax reduction or to postpone payment of tax normally due can amount to State aid ( Cassa di Risparmio di Firenze and Others , paragraph 132). | 132. Consequently, a measure by which the public authorities grant certain undertakings a tax exemption which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than other taxpayers amounts to State aid within the meaning of Article 87(1) EC. Likewise, a measure allowing certain undertakings a tax reduction or to postpone payment of tax normally due can amount to State aid ( Italy v Commission , paragraph 78). | 47. Moreover, where the Commission has adduced sufficient evidence to prove the relevant facts which occurred in the territory of the defendant Member State, it is for the latter to challenge in substance and in detail the information produced and the consequences flowing therefrom (see, to that effect, Case 272/86 Commission v Greece [1988] ECR 4875, paragraph 21, and Case C-365/97 Commission v Italy [1999] ECR I‑7773, paragraphs 84 and 86). |
63. Those findings are not vitiated by any error of law. It follows from the case-law that, in accordance with a principle common to the legal systems of the Member States whose origins may be traced back to Roman law, when legislation is amended, unless the legislature expresses a contrary intention, the continuity of the legal system must be ensured, and that that principle applies to amendments to the primary law of the European Union (see, to that effect, Klomp , paragraph 13). | 13 QUE , CONFORMEMENT A UN PRINCIPE COMMUN AUX SYSTEMES JURIDIQUES DES ETATS MEMBRES , DONT LES ORIGINES PEUVENT ETRE RETRACEES JUSQU ' AU DROIT ROMAIN , IL Y A LIEU , EN CAS DE CHANGEMENT DE LEGISLATION , D ' ASSURER , SAUF EXPRESSION D ' UNE VOLONTE CONTRAIRE PAR LE LEGISLATEUR , LA CONTINUITE DES STRUCTURES JURIDIQUES ; | 48. The explanatory notes to the CN and those to the HS are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see, inter alia, DFDS , cited above, paragraph 28). The content of those notes must therefore be compatible with the provisions of the CN and may not alter the meaning of those provisions (see, in particular, Case C-280/97 ROSE Electrotechnik [1999] ECR I-689, paragraph 23, and Case C-42/99 Eru Portuguesa [2000] ECR I-7691, paragraph 20). |
49
Accordingly, with respect to the examination, in the context of an appeal, of the General Court’s findings with regard to national law, the Court of Justice has jurisdiction only to determine whether that law was distorted (see judgments of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 79, and of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 44). | 79. Accordingly, as for the examination, in the context of an appeal, of the General Court’s assessment with regard to national law, the Court of Justice has jurisdiction only to determine whether that law was distorted (Case C‑82/01 P Aéroports de Paris v Commission [2002] ECR I‑9297, paragraph 63, and judgment of 21 December 2011 in Case C‑318/09 P A2A v Commission , paragraph 125). | 39. À cet égard, il convient de rappeler que la nécessité de parvenir à une interprétation du droit de l’Union qui soit utile au juge national implique que celui-ci définisse le cadre factuel et réglementaire dans lequel s’insèrent les questions qu’il pose ou que, à tout le moins, il explique les hypothèses factuelles sur lesquelles ces questions sont fondées. Ces exigences valent tout particulièrement dans le domaine de la concurrence, qui est caractérisé par des situations de fait et de droit complexes (voir, notamment, arrêt du 11 mars 2010, Attanasio Group, C‑384/08, Rec. p. I‑2055, point 32 et jurisprudence citée). |
74
In those circumstances, the referring courts, being bound for the purposes of the decisions to be given in the main proceedings by the interpretation of EU law given by the Court, must disapply, of their own motion, the temporal limitation which the Tribunal Supremo (Supreme Court) applied in its judgment of 9 May 2013, because that limitation does not appear to be compatible with that law (see, to that effect, judgments of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraphs 29 to 32; of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraphs 33 and 34; of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 36, and of 8 November 2016, Ognyanov, C‑554/14, EU:C:2016:835, paragraphs 67 to 70). | 32. In the light of the foregoing, the answer to the third question is that European Union law precludes a national court which is called upon to decide a case referred back to it by a higher court hearing an appeal from being bound, in accordance with national procedural law, by legal rulings of the higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those rulings are inconsistent with European Union law.
The questions regarding the interpretation of Articles 49 EC and 22 of Regulation No 1408/71 | 30. En l’absence d’harmonisation des moyens procéduraux de recours à la disposition des associations de protection des consommateurs pour faire cesser l’utilisation des clauses abusives tant dans l’intérêt des consommateurs que dans celui des concurrents professionnels, il appartient à l’ordre juridique interne de chaque É tat membre d’établir de telles règles, en vertu du principe d’autonomie procédurale, à condition toutefois qu’elles ne soient pas moins favorables que celles régissant des situations similaires soumises au droit interne (principe d’équivalence) et qu’elles ne rendent pas impossible en pratique ou excessivement difficile l’exercice des droits conférés aux associations de protection des consommateurs par le droit de l’Union (principe d’effectivité) (voir, par analogie, arrêts du 14 mars 2013, Aziz, C‑415/11, point 50, ainsi que du 18 avril 2013, Irimie, C‑565/11, point 23 et jurisprudence citée). |
33. Nevertheless, when implementing that provision, the Member States have a certain margin of discretion. The Member State of execution is entitled to pursue such an objective only in respect of persons who have demonstrated a certain degree of integration in the society of that Member State (see, to that effect, Wolzenburg , paragraphs 61, 67 and 73). | 61. When implementing Article 4 of Framework Decision 2004/584 and in particular paragraph 6 thereof, referred to in the decision for reference, the Member States have, of necessity, a certain margin of discretion. | 44
In such circumstances, it is necessary to take account of the facts of the case in point in order to determine whether the situation to which the dispute in the main proceedings relates falls within the scope of one or other of those freedoms of movement (see, to that effect, judgment of 13 November 2012, Test Claimants in the FII Group Litigation, C‑35/11, EU:C:2012:707, paragraphs 93 and 94). |
Or, une information qui s’avère incomplète, ambiguë ou trompeuse et qui peut induire le consommateur en erreur ne saurait être protégée au titre de la liberté d’expression et d’information de l’entrepreneur et de la liberté d’entreprendre de celui–ci (voir, en ce sens, arrêt du 17 décembre 2015, Neptune Distribution, C‑157/14, EU:C:2015:823, points 74 à 78). | 75. In those circumstances, the determination of the validity of the contested provisions must be carried out in accordance with the need to reconcile the requirements of the protection of those various fundamental rights protected by the EU legal order, and striking a fair balance between them (see, to that effect, judgment in Deutsches Weintor , C‑544/10, EU:C:2012:526, paragraph 47). | 51. It follows that, where the Regulation does not prescribe the consequences of certain facts, it is for the national court to apply, in principle, national law while taking care to ensure the full effectiveness of Community law, a task which may lead it to refrain from applying, if need be, a national rule preventing that or to interpret a national rule which has been drawn up with only a purely domestic situation in mind in order to apply it to the cross-border situation at issue (see inter alia, to this effect, Case 106/77 Simmenthal [1978] ECR 629, paragraph 16, Case C-213/89 Factortame and Others [1990] ECR I‑2433, paragraph 19, Case C‑453/99 Courage and Crehan [2001] ECR I-6297, paragraph 25, and Case C‑253/00 Muñoz and Superior Fruiticola [2002] ECR I‑7289, paragraph 28). |
47. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment (see, to that effect, Case 114/76 Bela-Mühle Bergmann [1977] ECR 1211, paragraph 7; Case 245/81 Edeka Zentrale [1982] ECR 2745, paragraphs 11 and 13; Case C‑122/95 Germany v Council [1998] ECR I‑973, paragraphs 68 and 71; and Case C‑535/03 Unitymark and North Sea Fishermen’s Organisation [2006] ECR I‑2689, paragraphs 53, 63, 68 and 71). | 11 AS THE COURT HELD IN ITS JUDGMENTS OF 19 OCTOBER 1977 IN JOINED CASES 117/76 AND 16/77 RUCKDESCHEL V HAUPTZOLLAMT HAMBURG-ST . ANNEN ( 1977 ) ECR 1753 AND IN JOINED CASES 124/76 AND 20/77 MOULINS ET HUILERIES DE PONT-A-MOUSSON ( 1977 ) ECR 1795 , THE PROHIBITION OF DISCRIMINATION CONTAINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY IS MERELY A SPECIFIC ENUNCIATION OF THE GENERAL PRINCIPLE OF EQUALITY WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW . THAT PRINCIPLE MEANS THAT LIKE SITUATIONS SHOULD NOT BE TREATED DIFFERENTLY UNLESS SUCH DIFFERENT TREATMENT IS OBJECTIVELY JUSTIFIED .
| 29 The Peter judgment cited above indicates, however, that restoration to the status quo ante is nevertheless subject to two conditions in order to reduce the differences between Member States' laws when applying the Community rules and thus to ensure uniformity in the implementation of the levy scheme. The first of those conditions is that application of the principle must not undermine the purposes of the milk quota scheme introduced by Regulation No 856/84. |
30. It is true that, in accordance with Articles 167 and 63 of Directive 2006/112, the right to deduct VAT invoiced is linked, as a general rule, to the actual performance of a taxable transaction (see Case C-536/03 António Jorge [2005] ECR I-4463, paragraphs 24 and 25) and the exercise of that right does not extend to VAT which is payable, under Article 203 of the directive, solely because it is entered on the invoice (see, inter alia, Case C-342/87 Genius [1989] ECR 4227, paragraphs 13 and 19, and Case C-35/05 Reemtsma Cigarettenfabriken [2007] ECR I-2425, paragraph 23). | 23. First of all, it should be recalled that, in paragraph 13 of Genius Holding , the Court found that the right to deduct may be exercised only in respect of taxes actually due, that is to say, the taxes corresponding to a transaction subject to VAT or paid in so far as they were due. It thus found that that right to deduct does not apply to VAT which is due, under Article 21(1)(c) of the Sixth Directive, solely because it is mentioned on the invoice (see, inter alia, Genius Holding , paragraph 19). In that regard, the Court subsequently upheld that case‑law in Case C‑454/98 Schmeink & Cofreth and Strobel [2000] ECR I‑6973, paragraph 53 and Joined Cases C‑78/02 to C‑80/02 Karageorgou and Others [2003] ECR I‑13295, paragraph 50). | 33. It is undisputed that the child benefits provided for by the German legislation at issue in the main proceedings meet the necessary conditions for being regarded as ‘family benefits’ within the meaning of Article 4(1)(u) of Regulation No 1408/71 (see also, in relation to the benefits provided for by Paragraph 62 of the EStG, Case C‑352/06 Bosmann [2008] ECR I‑3827, paragraphs 10 and 27). |
49. Notwithstanding the discretion which Member States have pursuant to Article 5 of that directive, legislation which does not incorporate the principle of recognition of documents issued by other Member States which certify that a vehicle has passed a roadworthiness test, as laid down in Article 3(2) of that directive, cannot be validated on the basis of that directive and must for that reason be assessed in the light of Article 34 TFEU (see, to that effect, Case C-297/05 Commission v Netherlands , paragraphs 67 to 71, and Case C-170/07 Commission v Poland , paragraphs 36 to 42). | 71. Therefore, it is necessary to ascertain, second, whether the requirement that vehicles which are more than three years old and which have previously been registered in another Member State must be submitted for testing as to their general condition prior to registration in the Netherlands constitutes a measure having equivalent effect to a quantitative restriction on imports, prohibited under Article 28 EC, and, if so, whether such a requirement may nevertheless be justified on grounds of the protection of interests referred to in Article 30 EC (see, to that effect, Case C‑150/00 Commission v Austria [2004] ECR I‑3887, paragraph 80). | 32. First, before the initial period of three years expires, that provision seeks to enable family members to be with a migrant worker, with a view to thus furthering, by means of family reunification, the employment and residence of the Turkish worker who is already legally integrated in the host Member State (see, inter alia, Case C‑65/98 Eyüp [2000] ECR I‑4747, paragraph 26; Case C-467/02 Cetinkaya [2004] ECR I‑10895, paragraph 25; and Bozkurt , paragraph 33). |
44. Given that this copy of the minutes was available to the Court of First Instance, which it accepted as being a certified true copy of the original, it was under no obligation whatsoever to adopt a further measure for taking evidence in order to obtain the original if it formed the view that such a measure was unnecessary to establish the truth (see, to that effect, Limburgse Vinyl Maatschappij , cited above, paragraph 404). | 404 Contrary to what Hoechst maintains, the Court of First Instance, which had at its disposal various items of documentary evidence to enable it to deal with the point in issue, was by no means obliged to adopt of its own motion any further measure for the taking of evidence. It would not have been obliged to adopt such a measure even if at the end of its assessment it had concluded that none of that evidence was of any probative value. It would in those circumstances have been entitled to rule in accordance with the rules governing the burden of proof. | 16 Finally, the Court has held that Directive 91/156 was validly adopted on the basis of Article 130s of the Treaty and not Article 100a, since the main object of the harmonization provided for in Article 1 of the directive was to ensure, with a view to protecting the environment, the effective management of waste in the Community, regardless of its origin, and it had only ancillary effects on the conditions of competition and trade (C-155/91 Commission v Council [1993] ECR I-939, paragraphs 20 and 21). It is therefore incorrect to consider the specific objectives of that directive to be the proper functioning of the internal market and the abolition of disparities in the treatment of economic operators. |
74. However, that does not in any way affect the existence of the right to those benefits and hence the corresponding obligation to pay to the competent institutions of the Member State whose legislation gives rise to such a right the contributions payable in return for the risk borne by that State under Regulation No 1408/71. As the Court has previously held, there is no rule of European Union law which requires the competent institution of a Member State to ascertain whether an insured person is likely to be able actually to receive all the benefits of a sickness insurance scheme before registering that person and collecting the corresponding contributions ( Molenaar , paragraph 41). | 41 There is no rule of Community law which requires the competent institution to ascertain whether an employed person is likely to be able to take advantage of all the benefits of a sickness insurance scheme before registering that person and collecting the appropriate contributions. The right to benefits must be assessed, on the basis of the conditions laid down by the legislation of the competent Member State, on the date when entitlement arises, so that the situation on the date when the contribution is payable is not relevant in that connection. That is true in particular of the employed person's residence, which is not definitively settled when he joins the scheme or pays contributions. | 37. As regards, in particular, the compensation granted by an employer to a worker on termination of his employment, the Court has already stated that such compensation is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances arising from such termination (see Barber , cited above, paragraph 13, and Case C‑33/89 Kowalska [1990] ECR I-2591, paragraph 10; and Seymour-Smith and Perez , cited above, paragraph 25). |
31. It is apparent from settled case-law that Article 141 EC, like its predecessor Article 119 of the EEC Treaty (which became Article 119 of the EC Treaty – Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), must be interpreted as meaning that whenever there is evidence of discrimination, it is for the employer to prove that the practice at issue is justified by objective factors unrelated to any discrimination based on sex (see, to that effect, inter alia, Danfoss , paragraphs 22 and 23; Case C-33/89 Kowalska [1990] ECR I-2591, paragraph 16; Hill and Stapleton , paragraph 43; and Joined Cases C‑4/02 and C-5/02 Schönheit and Becker [2003] ECR I-12575, paragraph 71). | 71. Therefore it is necessary to determine whether the statistics available indicate that a considerably higher percentage of women than men is affected by the provisions of the BeamtVG entailing a reduction in the pensions of civil servants who have worked part-time for at least a part of their career. Such a situation would be evidence of apparent discrimination on grounds of sex unless the provisions at issue were justified by objective factors unrelated to any discrimination based on sex. | 102. It must be remembered that the appraisal of the facts by the Court of First Instance does not, save where the clear sense of the evidence produced before it is distorted, constitute a question of law which is subject, as such, to review by the Court of Justice (see, inter alia , Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 330). |
29. According to settled case-law, the equal treatment rule laid down in Article 39 EC prohibits not only overt discrimination on grounds of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, in particular, Ioannidis , paragraph 26 and case-law cited). | 26. According to settled case-law, the principle of equal treatment prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result (see, inter alia, Case 152/73 Sotgiu [1974] ECR 153, paragraph 11, and Case C-209/03 Bidar [2005] ECR I-0000, paragraph 51). | 19 On that point, it should first be noted that, when the Association Council adopted the social provisions in Decision No 1/80, its aim was to go one stage further, guided by Articles 48, 49 and 50 of the Treaty, towards securing freedom of movement for workers. |
20. Firstly, it is appropriate to recall that Regulation No 2988/95 introduces, in accordance with Article 1 thereof, ‘general rules … relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to [EU] law’ and, as is apparent from the third recital in the preamble to that regulation, in order to ‘[counter] acts detrimental to the [EU’s] financial interests … in all areas’ (see judgments in Handlbauer , C‑278/02, EU:C:2004:388, paragraph 31 ; Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , C‑278/07 to C‑280/07, EU:C:2009:38, paragraph 20; and Pfeifer & Langen , C‑564/10, EU:C:2012:190, paragraph 36). | 36. It should be recalled that Article 1(1) of Regulation No 2988/95 lays down ‘general rules … relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law’ in order, as is made clear from the third recital of the regulation, to counter ‘acts detrimental to the Communities’ financial interests … in all areas’. | 109 In light of those considerations, it does not appear that the effects restrictive of competition such as those resulting for members of the Bar practising in the Netherlands from a regulation such as the 1993 Regulation go beyond what is necessary in order to ensure the proper practice of the legal profession (see, to that effect, Case C-250/92 DLG [1994] ECR I-5641, paragraph 35). |
18 In that regard, it has, on a number of occasions, stressed that a benefit is to be regarded as a social security benefit if it is granted to recipients without any individual and discretionary assessment of personal needs on the basis of a legally defined position and if it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (judgment in Hughes, cited above, paragraph 15). | 14 The Court has repeatedly held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of the particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation. | 41. Quant au plan de gestion provisoire du SIC «Is Arenas», à supposer même qu’il constitue une mesure appropriée au regard des exigences de l’article 6, paragraphe 2, de la directive «habitats», force est de constater qu’il a été approuvé après l’expiration du délai fixé dans l’avis motivé complémentaire. Or, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêt du 11 janvier 2007, Commission/Irlande, C‑183/05, Rec. p. I‑137, point 17). |
71. In any event, the good faith of a taxable person is relevant for the answer to be given to the national court only in so far as there is, on account of the conduct of that taxable person, a risk of a loss of tax revenues for the Member State concerned (see, to that effect, Collée , paragraphs 35 and 36). However, a failure to comply with accounting obligations, such as that at issue in the main proceedings, cannot be regarded as giving rise to a risk of loss of tax revenues, since, as stated in paragraph 56 of this judgment, in the context of the application of the reverse charge procedure, no tax is due in principle to the Exchequer. For those reasons, such a failure also cannot be treated as a transaction designed to evade tax or as a misuse of Community rules, since it was not intended to obtain a tax advantage to which there was no entitlement (see, to that effect, Collée , paragraph 39). | 39. However, in circumstances such as those of the main action, the use of an intermediary for the collection of a contractual commission cannot be likened to a transaction that is tainted by tax evasion or to the use of Community law for abusive ends if it is established that the transaction was not carried out for the purpose of obtaining a tax advantage to which there was no entitlement. | 27
The obligation to provide a guarantee, in such circumstances, could lead, in certain cases, to an outcome going beyond what is necessary to ensure the correct collection of VAT and the prevention of tax evasion (see, by analogy, judgment of 10 July 2008, Sosnowska, C‑25/07, EU:C:2008:395, paragraph 24 and the case-law cited). |
59. Next, it is necessary to bear in mind that, as Community law stands at present, no general provision or principle thereof requires that women should continue to receive full pay during maternity leave, provided that the amount of remuneration payable is not so low as to undermine the Community-law objective of protecting female workers, in particular before giving birth (see, to that effect, Gillespie and Others , paragraph 20). | 20 That being so, it follows that at the material time neither Article 119 of the EEC Treaty nor Article 1 of Directive 75/117 required that women should continue to receive full pay during maternity leave. Nor did those provisions lay down any specific criteria for determining the amount of benefit to be paid to them during that period. The amount payable could not, however, be so low as to undermine the purpose of maternity leave, namely the protection of women before and after giving birth. In order to assess the adequacy of the amount payable from that point of view, the national court must take account, not only of the length of maternity leave, but also of the other forms of social protection afforded by national law in the case of justified absence from work. There is nothing, however, to suggest that the main proceedings the amount of the benefit granted was such as to undermine the objective of protecting maternity leave. | 41 The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 25 and 26, Case 113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke and Benteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council [1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 9). |
18. Accordingly, the Court has ruled in particular that Article 49 EC precludes the application of national rules making reimbursement of medical costs incurred in another Member State subject to a system of prior authorisation where it is apparent that such a system deters, or prevents, insured persons from approaching providers of medical services established in Member States other than the State of insurance, save where the barrier to the freedom to provide services to which it gives rise is justifiable under one of the derogations allowed by the EC Treaty (see, in particular, Case C-158/96 Kohll [1998] ECR I-1931, paragraphs 35 and 36, and Smits and Peerbooms , paragraphs 69 to 75, and Müller-Fauré and Van Riet , paragraphs 44, 67 and 68). | 73 The Court has likewise recognised that, as regards the objective of maintaining a balanced medical and hospital service open to all, that objective, even if intrinsically linked to the method of financing the social security system, may also fall within the derogations on grounds of public health under Article 56 of the EC Treaty (now, after amendment, Article 46 EC), in so far as it contributes to the attainment of a high level of health protection (Kohll, paragraph 50). | 112. That is a fortiori the case when the national court is seised of a dispute concerning the application of domestic provisions which, as here, have been specifically enacted for the purpose of transposing a directive intended to confer rights on individuals. The national court must, in the light of the third paragraph of Article 249 EC, presume that the Member State, following its exercise of the discretion afforded it under that provision, had the intention of fulfilling entirely the obligations arising from the directive concerned (see Case C‑334/92 Wagner Miret [1993] ECR I-6911, paragraph 20). |
62. Basing its decision on paragraph 104 of Smits and Peerbooms and paragraph 90 of Müller-Fauré and van Riet , the Court held that, in order to determine whether treatment which is equally effective for the patient can be obtained without undue delay in the Member State of residence, the competent institution is required to have regard to all the circumstances of each specific case, taking due account not only of the patient’s medical condition at the time when authorisation is sought and, where appropriate, of the degree of pain or the nature of the patient’s disability which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history ( Inizan , paragraph 46). | 90. In order to determine whether treatment which is equally effective for the patient can be obtained without undue delay in an establishment having an agreement with the insured person's fund, the national authorities are required to have regard to all the circumstances of each specific case and to take due account not only of the patient's medical condition at the time when authorisation is sought and, where appropriate, of the degree of pain or the nature of the patient's disability which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history (see, to that effect, Smits and Peerbooms , paragraph 104). | 39. The Court has thus held that a company that is resident in a Member State and has a shareholding in a company resident in a third country giving it definite influence over the decisions of the latter company and enabling it to determine its activities may rely upon Article 63 TFEU in order to call into question the consistency with that provision of legislation of that Member State which relates to the tax treatment of dividends originating in the third country and does not apply exclusively to situations in which the parent company exercises decisive influence over the company distributing the dividends (see judgment in Test Claimants in the FII Group Litigation , EU:C:2012:707, paragraph 104). |
42. As regards the first argument relied on by Eventech, that there is preferential access to State-funded transport infrastructure for the use of which no payment is sought from Black Cabs, it is certainly true that, as stated by that company, the Court has held that the financing, by means of capital contributions made by the public authorities as a shareholder, to the construction of infrastructure which is to be commercially operated may involve the grant of State aid (see, to that effect, the judgment in Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission , C‑288/11 P, EU:C:2012:821, paragraphs 43 and 44). | 43. It is apparent from those findings that the General Court did not err in law in holding, essentially, that the Commission had correctly considered the construction of the new southern runway by FLH to constitute an economic activity and, consequently, the capital contributions, subject to the amount to be deducted from them in respect of expenses linked to the performance of public duties, to constitute State aid for the purpose of Article 87(1) EC. | 55 In considering that complaint, it must be borne in mind that, according to settled case-law, in order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of attaining the desired objective and whether they go beyond what is necessary for that purpose (see, in particular, Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraph 54). |
58. In that regard, in accordance with the Court’s settled case-law, when the amount of the fine is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 81(1) EC (see, to that effect, Case C-280/98 P Weig v Commission [2000] ECR I-9757, paragraphs 63 to 68, and Case C-291/98 P Sarrió v Commission [2000] ECR I-9991, paragraphs 97 to 100). | 66 Thus, in Enso Española v Commission, cited above, which, as the Commission has stated, is the most similar to the present case in that the Court of First Instance there also reduced the duration of the infringement to be taken into account in order to calculate the fine, but did not uphold any other argument by the applicant which would have justified a reduction of its fine, the Court fixed the fine at ECU 1 200 000, which corresponds approximately to the amount which would ensue if the Commission's method of calculation were applied (ECU 1 150 000). | 29. The Court has already held that, in those circumstances, evidence of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the European Union rules by creating artificially the conditions laid down for obtaining it (see, to that effect, Case C‑515/03 Eichsfelder Schlachtbetrieb [2005] ECR I‑7355, paragraph 39 and the case-law cited). |
18 It is sufficient to observe, on this point, that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 59). A request from a national court may be refused by the Court of Justice only where it is obvious that the interpretation of a Community rule or assessment of its validity which is sought bears no relation to the facts or purpose of the main action, or if the Court of Justice does not have before it the factual or legal material necessary to give a useful answer to the questions (see, in particular, Bosman, paragraph 61; Case C-60/98 Butterfly Music v CEMED [1999] ECR I-0000, paragraph 13). | 13 As to that, according to settled case-law (see, in particular, Case C-415/93 Union Royal Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraphs 59, 60 and 61), it is solely for the national court hearing the case, which must assume responsibility for the subsequent judicial decision, to determine, in particular, the need for a preliminary ruling in order to enable it to deliver judgment. The Court of Justice may refuse a request made by such a court only where it is quite obvious that the interpretation of Community law sought bears no relation to the actual facts of the main proceedings or their purpose, or where it does not have before it the factual or legal material necessary to give a useful answer to the questions submitted (see, in particular, Bosman, paragraph 61). Since that is not the position in the present case, the question referred for a preliminary ruling cannot be declared inadmissible for a reason relating to its lack of relevance to the circumstances of the case. | 63. Under Article 1(h) of Regulation No 659/1999, ‘interested party’ means inter alia any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, that is to say, in particular competing undertakings of the beneficiary of that aid. In other words, that term covers an indeterminate group of persons (see, to that effect, Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 16). |
55
In those circumstances, in order to satisfy itself that the contested transfer decision was adopted following a proper application of the take charge procedure laid down in that regulation, the court dealing with an action challenging a transfer decision must be able to examine the claims made by an asylum applicant who invokes an infringement of the provisions set out in Article 21(1) of that regulation (see, by analogy, judgment of 7 June 2016, Karim, C‑155/15, EU:C:2016:410, paragraph 26). | 26
Consequently, in order to satisfy itself that the contested transfer decision was adopted following a proper application of the process for determining the Member State responsible laid down in that regulation, the court dealing with an action challenging a transfer decision must be able to examine the claims made by an asylum applicant who invokes an infringement of the rule set out in the second subparagraph of Article 19(2) of that regulation. | 23. As regards the national legislation at issue in the main proceedings, the Court has held previously that only the objective of combating criminality linked to betting and gaming is capable of justifying restrictions on fundamental freedoms under those rules, provided that those restrictions comply with the principle of proportionality and in so far as the means employed are coherent and systematic (see, to that effect, Placanica and Others , paragraphs 52 to 55, and Costa and Cifone , paragraphs 61 to 63). |
35. It is true that nationals of a Member State cannot attempt, under cover of the rights created by the Treaty, improperly to circumvent their national legislation. They must not improperly or fraudulently take advantage of provisions of Community law (Case 115/78 Knoors [1979] ECR 399, paragraph 25; Case C-61/89 Bouchoucha [1990] ECR I-3551, paragraph 14; and Case C-212/97 Centros [1999] ECR I-1459, paragraph 24). | 14 However, as has been rightly pointed out by the French Government, the SNMOF and the SNMSRRF, the diploma from the European School of Osteopathy held by Mr Bouchoucha does not at present enjoy any mutual recognition within the Community . It cannot therefore be regarded as a professional qualification recognized by the provisions of Community law . Furthermore, according to Knoors, supra, it is not possible to disregard the legitimate interest which a Member State may have in preventing certain of its nationals, by means of facilities created under the Treaty, from attempting to evade the application of their national legislation as regards vocational training ( paragraph 25 ). | 35. Since the FEU Treaty abolished the reasoned opinion stage in infringement proceedings under Article 260(2) TFEU, the reference date for assessing whether there has been an infringement for the purpose of Article 260 TFEU is the date of expiry of the period prescribed in the letter of formal notice issued in accordance with the first subparagraph of Article 260(2) (Case C‑610/10 Commission v Spain EU:C:2012:781, paragraph 67, and Case C‑576/11 Commission v Luxembourg EU:C:2013:773, paragraph 29). |
En effet, ainsi que l’a rappelé le Tribunal aux points 381 et 383 de l’arrêt attaqué, il est de jurisprudence constante de
la Cour, d’une part, que, afin de vérifier si une filiale détermine de façon autonome son comportement sur le marché, il convient
de prendre en considération l’ensemble des éléments pertinents relatifs aux liens économiques, organisationnels et juridiques
qui unissent cette filiale à la société mère, lesquels peuvent varier selon les cas et ne sauraient donc faire l’objet d’une
énumération exhaustive. D’autre part, lorsqu’une société mère et sa filiale font partie d’une seule entreprise au sens de
l’article 101 TFUE, c’est non pas nécessairement une relation d’instigation relative à l’infraction entre la société mère
et la filiale, ni, à plus forte raison, une implication de la première dans ladite infraction, qui habilite la Commission
à adresser la décision imposant des amendes à la société mère, mais le fait que les sociétés concernées constituent une seule
entreprise, au sens de l’article 101 TFUE (arrêt du 29 septembre 2011, Elf Aquitaine/Commission, C‑521/09 P, EU:C:2011:620,
points 58 et 88). | 88. In that regard, it should be borne in mind – as the General Court indicated in substance in paragraphs 97, 152, 167 and 186 of the judgment under appeal and as follows, moreover, from paragraphs 53 to 55 above – that, where a parent company and its subsidiary form part of a single ‘undertaking’ for the purposes of Article 101 TFEU, the factor which entitles the Commission to address the decision imposing fines to the parent company is not necessarily a parent-subsidiary relationship in which the parent company instigates the infringement; nor, a fortiori , is it because of the parent company’s involvement in the infringement; rather, it is because the companies concerned constitute a single undertaking for the purposes of Article 101 TFEU. | 21. In that respect, although the Member States are competent, under Article 165(1) TFEU, as regards the content of teaching and the organisation of their respective education systems, they must exercise that competence in compliance with EU law and, in particular, in compliance with the Treaty provisions on the freedom to move and reside within the territory of the Member States, as conferred by Article 21(1) TFEU (see, Morgan and Bucher , paragraph 24 and the case-law cited, and Prinz and Seeberger , paragraph 26 and the case-law cited). |
90
In such circumstances, the rule imposing a time limit may — notwithstanding the fact that it constitutes, as a precondition for bringing judicial proceedings, a limitation on the right to an effective remedy before a court within the meaning of Article 47 of the Charter — be justified, in accordance with Article 52(1) of the Charter, to the extent that it is provided for by law, it respects the essence of that law, it is necessary, subject to the principle of proportionality, and it genuinely meets objectives of the public interest recognised by the EU or the need to protect the rights and freedoms of others (see, by analogy, judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraphs 61 to 71). | 61
In the present case, it is common ground in the case in the main proceedings that, by making the admissibility of a legal action brought by a person alleging infringement of his right to protection of personal data guaranteed by Directive 95/46 subject to the prior exhaustion of the administrative remedies available, the national legislation at issue introduces an additional step for access to the courts. As the Advocate General also stated in point 53 of her Opinion, such a procedural rule would delay access to a judicial remedy and could also cause additional costs to be incurred. | 54 That limitation is therefore also applicable to survivors' pensions. |
40. In that regard, it should be borne in mind that, whilst ‘medical care’ and ‘the provision of medical care’ must have a therapeutic aim, it does not necessarily follow that the therapeutic purpose of a service must be confined within a particularly narrow compass (see Case C‑76/99 Commission v France [2001] ECR I‑249, paragraph 23; Case C‑212/01 Unterpertinger [2003] ECR I‑13859, paragraph 40; and L.u.P. , paragraph 29). | 23 As the Advocate General noted in point 23 of his Opinion, that concept does not, however, call for an especially narrow interpretation since the exemption of activities closely related to hospital and medical care is designed to ensure that the benefits flowing from such care are not hindered by the increased costs of providing it that would follow if it, or closely related activities, were subject to VAT. | 39. In the light of the case law referred to in paragraphs 35 to 38 above, the functioning of the system of cooperation between the Court of Justice and the national courts established by Article 267 TFEU requires, as does the principle of primacy of EU law, the national court to be free to refer to the Court for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate, even at the end of an interlocutory procedure for the review of constitutionality (see, to that effect, Melki and Abdeli , EU:C:2010:363, paragraphs 51 and 52). |
61
The conditions for granting that derived right of residence must not be stricter than those provided for by Directive 2004/38 for the grant of a derived right of residence to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than that of which he is a national. Even though Directive 2004/38 does not cover a situation such as that mentioned in the preceding paragraph of this judgment, it must be applied, by analogy, to that situation (see, by analogy, judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraphs 50 and 61, and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraphs 54 and 55). | 54
However, the Court has held that, when a Union citizen returns to the Member State of which he is a national, the conditions for granting a derived right of residence, based on Article 21(1) TFEU, to a third-country national who is a family member of that Union citizen and with whom that citizen has resided, solely by virtue of his being a Union citizen, in the host Member State, those conditions should not, in principle, be more strict than those provided for by Directive 2004/38 for the grant of such a right of residence to a third-country national who is a family member of a Union citizen in a case where that citizen has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national (see, to that effect, judgment of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 50). | 73. Thus, a case such as the one at issue in the main proceedings is fundamentally different from the one which gave rise to the judgment in Genil 48 and Comercial Hostelera de Grandes Vinos (C‑604/11, EU:C:2013:344), which concerned a futures type of financial instrument, being a so-called ‘swap’ agreement aimed at protecting bank customers against fluctuations in variable interest rates to which they had been exposed as a result of a subscription for certain financial products with those banks. |
25. Article 3a(1)(b) of Directive 84/450 provides that, if comparative advertising is to be permitted, the comparison must relate to goods or services which meet the same needs or are intended for the same purpose. The Court has already held that that condition implies that the goods being compared must display a sufficient degree of interchangeability for consumers ( Lidl Belgium , paragraph 26, and Case C‑381 /05 De Landtsheer Emmanuel [2007] ECR I‑3115, paragraph 44). | 26. Article 3a(1)(b) of the Directive sets out that requirement, laying down that, if comparative advertising is to be permitted, the competing goods being compared must meet the same needs or be intended for the same purpose, that is to say they must display a sufficient degree of interchangeability for consumers. | 23 It is settled law that the exemptions provided for by Article 13 of the Sixth Directive constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (see Case 348/87 Stichting Uitvoering Financiële Acties [1989] ECR 1737, paragraph 11, and Case C-349/96 CPP [1999] ECR I-973, paragraph 15) and must be placed in the general context of the common system of VAT (see, to that effect, Case 235/85 Commission v Netherlands [1987] ECR 1471, paragraph 18). |
21. Under the case-law relating to Directive 85/384, which was repealed by Directive 2005/36, such a system of mutual recognition of the evidence of formal qualifications precludes the host Member State from imposing additional requirements for the recognition of professional qualifications which satisfy the conditions for qualification laid down by the EU rules (see, to that effect, Case C‑43/06 Commission v Portugal EU:C:2007:300, paragraphs 27 and 28, and Case C‑111/12 Ordine degli Ingegneri di Verona e Provincia and Others EU:C:2013:100, paragraphs 43 and 44). | 43. However, contrary to the position expressed by the Consiglio Nazionale degli Architetti, Pianificatori, Paesaggisti e Conservatori and the Ordine degli Architetti Pianificatori, Paesaggisti e Conservatori della Provincia di Verona, it cannot be inferred from that competence of the host Member State that Directive 85/384 authorises that Member State to subject the exercise of activities relating to buildings of artistic interest to an examination of the qualifications of the persons concerned in that field. | 30 Secondly, as is clear from the nomenclature of capital movements set out in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (repealed by the Treaty of Amsterdam) (OJ 1988 L 178, p. 5), capital movements include investments in real estate on the territory of a Member State by non-residents. That nomenclature still has the same indicative value for the purposes of defining the notion of capital movements (see Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraph 21, and Case C-464/98 Stefan [2001] ECR I-173, paragraph 5). |
46
It must first of all be recalled that the General Court alone has jurisdiction to examine how in each particular case the Commission assessed the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the General Court took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 101 TFEU and Article 23 of Regulation No 1/2003 and, second, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised in support of the claim for cancellation or reduction of the fine (see, inter alia, judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 128; of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 244; and of 5 December 2013, Solvay Solexis v Commission, C‑449/11 P, not published, EU:C:2013:802, paragraph 74). | 128 In the first place, it must be borne in mind that the Court of First Instance alone has jurisdiction to examine how in each particular case the Commission appraised the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 85 of the Treaty and Article 15 of Regulation No 17 and, second, to consider whether the Court of First Instance responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced (see, on the latter point, Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 31). | 74. Reliance on the mere temporary nature of the employment of staff of the public authorities does not meet those requirements and is therefore not, of itself, capable of constituting an ‘objective ground’ for the purposes of clause 4(1) of the framework agreement. If the mere temporary nature of an employment relationship were held to be sufficient to justify a difference in treatment as between fixed-term workers and permanent workers, the objectives of Directive 1999/70 and the framework agreement would be rendered meaningless and it would be tantamount to perpetuating a situation that is disadvantageous to fixed-term workers ( Gavieiro Gavieiro and Iglesias Torres , paragraphs 56 and 57, and the order in Montoya Medina , paragraphs 42 and 43). |
17. A medicinal product is essentially similar, within the meaning of Article 10(1)(a)(iii) of Directive 2001/83, to an original medicinal product where it satisfies the criteria of having the same qualitative and quantitative composition in terms of active principles, of having the same pharmaceutical form and of being bioequivalent, unless it is apparent in the light of scientific knowledge that it differs significantly from the original product as regards safety or efficacy (Case C‑368/96 Generics (UK) and Others [1998] ECR I‑7967, paragraph 36, concerning an equivalent provision in Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products (OJ, English Special Edition 1965-1966, p. 20). | 36 Having regard to the foregoing, the answer to the first part of the first question must be that Article 4.8(a)(iii) of Directive 65/65, as amended, is to be interpreted as meaning that a medicinal product is essentially similar to an original medicinal product where it satisfies the criteria of having the same qualitative and quantitative composition in terms of active principles, of having the same pharmaceutical form and of being bioequivalent, unless it is apparent in the light of scientific knowledge that it differs significantly from the original product as regards safety or efficacy. | 40. In that context, the Court has also held that any failure by the supplier of goods to meet the requirement to state when taxable activity commences cannot call into question the right of deduction to which the recipient of goods supplied is entitled in respect of the VAT paid for those goods. Accordingly, that recipient has a right to deduct even if the supplier of the goods is a taxable person who is not registered for VAT, where the invoices relating to the services supplied contain all of the information required by Article 22(3)(b) of the Sixth Directive, in particular the information necessary to identify the person who drew up those invoices and to ascertain the nature of the goods provided (see, to that effect, judgments in Dankowski , C‑438/09, EU:C:2010:818, paragraphs 33, 36 and 38, and in Tóth , C‑324/11, EU:C:2012:549, paragraph 32). |
29. It is in that particular context of a claim that there is a ‘family’ or ‘series’ of trade marks that the Court’s statement in paragraph 86 of Il Ponte Finanziaria v OHIM should be understood, according to which it is not possible, under Article 15(2)(a) of Regulation No 40/94, and consequently under Article 10(2)(a) of Directive 89/104, to extend, by means of proof of use, the protection enjoyed by a registered trade mark to another registered mark, the use of which has not been established, on the ground that the latter is merely a slight variation on the former. The use of one trade mark cannot be relied on in order to prove the use of another trade mark where the aim is to establish use of a sufficient number of trade marks of a single family. | 86. In any event, while it is possible, as a result of the provisions referred to in paragraphs 81 and 82 of the present judgment, to consider a registered trade mark as used where proof is provided of use of that mark in a slightly different form from that in which it was registered, it is not possible to extend, by means of proof of use, the protection enjoyed by a registered trade mark to another registered mark, the use of which has not been established, on the ground that the latter is merely a slight variation on the former. | 36. It is not disputed by the parties to the main proceedings or by the Austrian Government or the Commission that the main proceedings relate to the duration of employment relationships with an employer and that that duration must be taken into account to calculate the amount of the termination payment, which falls within the concept of pay (see, to that effect, Gruber , paragraph 22). |
46. However, it must be pointed out that the possibility of pleading the existence of mandatory rules under Article 7(2) of the Rome Convention does not affect the obligation of the Member States to ensure the conformity of those rules with European Union law. According to the case-law of the Court, the fact that national rules are categorised as public order legislation does not mean that they are exempt from compliance with the provisions of the Treaty; if it did, the primacy and uniform application of European Union law would be undermined. The considerations underlying such national legislation can be taken into account by European Union law only in terms of the exceptions to European Union freedoms expressly provided for by the Treaty and, where appropriate, on the ground that they constitute overriding reasons relating to the public interest (Joined Cases C‑369/96 and C‑376/96 Arblade and Others [1999] ECR I‑8453, paragraph 31). | 31 The fact that national rules are categorised as public-order legislation does not mean that they are exempt from compliance with the provisions of the Treaty; if it did, the primacy and uniform application of Community law would be undermined. The considerations underlying such national legislation can be taken into account by Community law only in terms of the exceptions to Community freedoms expressly provided for by the Treaty and, where appropriate, on the ground that they constitute overriding reasons relating to the public interest.
The questions referred | 34. Indeed, in certain situations, the excessive duration of the pre-litigation procedure is capable of making it more difficult for the Member State concerned to refute the Commission’s arguments and of thus infringing the rights of defence of that Member State. Nevertheless, it is for the Member State concerned to show that it has been so affected (Case C‑96/89 Commission v Netherlands [1991] ECR I‑2461, paragraph 16, and Case C‑546/07 Commission v Germany [2010] ECR I‑0000, paragraph 22). |
50. That discretion relating to the protection of public health is particularly wide where it is shown that there is still uncertainty in the current state of scientific research as to certain substances, such as vitamins, which are not as a general rule harmful in themselves but may have special harmful effects solely if taken to excess as part of the general diet, the composition of which cannot be foreseen or monitored (see Sandoz , paragraph 17, and Commission v Denmark , paragraph 43). | 43. That discretion relating to the protection of public health is particularly wide where it is shown that uncertainties continue to exist in the current state of scientific research as to certain substances, such as vitamins, which are not as a general rule harmful in themselves but may have special harmful effects solely if taken to excess as part of the general nutrition, the composition of which cannot be foreseen or monitored (see Sandoz , paragraph 17). | 14 In Case 228/87 Criminal proceedings against X [1988] ECR 5099, also concerning Directive 80/778, the Court held that derogations from the directive must be interpreted strictly (paragraph 10) and that the term "emergencies" within the meaning of Article 10(1) of the directive must be construed as meaning urgent situations in which the competent authorities are required to cope suddenly with difficulties in the supply of water intended for human consumption (paragraph 14). |
35. With regard to determining the precise nature of the benefit at issue in the main proceedings, it follows from the Court’s settled case-law that the requirement that EU law be applied uniformly implies that the concepts to which that law refers should not vary according to the particular features of each system of national law but rest upon objective criteria defined in a context specific to EU law. In accordance with that principle, the concepts of sickness and invalidity benefits in Article 4(1)(a) and (b) of Regulation No 1408/71 are to be determined, for the purpose of applying the regulation, not according to the type of national legislation containing the provisions giving those benefits, but in accordance with EU rules which define what those benefits shall consist of (see, to that effect, Case 69/79 Jordens-Vosters [1980] ECR 75, paragraph 6). | 6 IT IS WELL ESTABLISHED THAT THE REQUIREMENT THAT COMMUNITY LAW BE APPLIED UNIFORMLY WITHIN THE COMMUNITY IMPLIES THAT THE CONCEPTS TO WHICH THAT LAW REFERS SHOULD NOT VARY ACCORDING TO THE PARTICULAR FEATURES OF EACH SYSTEM OF NATIONAL LAW BUT REST UPON OBJECTIVE CRITERIA DEFINED IN A COMMUNITY CONTEXT . IN ACCORDANCE WITH THIS PRINCIPLE , THE CONCEPT OF ' ' SICKNESS AND MATERNITY BENEFITS ' ' APPEARING IN ARTICLE 4 ( 1 ) ( A ) OF REGULATION NO 1408/71 IS TO BE DETERMINED FOR THE PURPOSE OF APPLYING THE REGULATION NOT ACCORDING TO THE TYPE OF NATIONAL LEGISLATION CONTAINING THE PROVISIONS GIVING THOSE BENEFITS , BUT IN ACCORDANCE WITH COMMUNITY RULES WHICH DEFINE WHAT THOSE BENEFITS SHALL CONSIST OF .
| 12 It should be added that those two definitions cannot be regarded as strictly distinct from each other. As is stated in paragraph 22 of the judgment in Case 227/82 Van Bennekom [1983] ECR 3883, a substance which is endowed with "properties for treating or preventing disease in human beings or animals" within the meaning of the first Community definition but is not "presented" as such falls within the scope of the second Community definition of a medicinal product. |
42. That being so, for the purposes of assessing whether that obligation has been complied with, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the EC Treaty and that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since the level may vary from one Member State to another, Member States should be allowed a measure of discretion (see, to that effect, Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraph 51; Apothekerkammer des Saarlandes and Others , paragraph 19; and Blanco Pérez and Chao Gómez , paragraph 44). | 19. When assessing whether that obligation has been complied with, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the Treaty and that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since the level may vary from one Member State to another, Member States must be allowed discretion (see, to this effect, Case C-322/01 Deutscher Apothekerverband [2003] ECR I-14887, paragraph 103; Case C-141/07 Commission v Germany [2008] ECR I-0000, paragraph 51; and Hartlauer , paragraph 30). | 36 Nor, more generally, is the description `mountain' an indication of provenance as defined by the Court in its case-law on Articles 30 and 36 of the Treaty. According to that case-law, an indication of provenance is intended to inform the consumer that a product bearing such an indication comes from a particular place, region or country (judgment in Case C-3/91 Exportur [1992] ECR I-5529, paragraph 11). |
44. Since Article 3(1)(e) of the Directive is a preliminary obstacle that may prevent a sign consisting exclusively of the shape of a product from being registered, it follows that if any one of the criteria listed in that provision is satisfied, the sign cannot be registered as a trade mark. Nor, furthermore, can it ever acquire a distinctive character for the purposes of Article 3(3) through the use made of it (see Philips , paragraphs 74 to 76). | 74 Second, it must also be borne in mind that the grounds for refusal to register signs consisting of the shape of a product are expressly listed in Article 3(1)(e) of the Directive. Under that provision, signs which consist exclusively of the shape which results from the nature of the goods themselves, or the shape of the goods which is necessary to obtain a technical result, or the shape which gives substantial value to the goods cannot be registered or if registered are liable to be declared invalid. According to the seventh recital in the preamble to the Directive, those grounds for refusal have been listed in an exhaustive manner. | 34. When that comparison is being made, a distinction must be drawn between two categories of vehicles, with the first category comprising those which are sold second-hand during the two calendar years following their manufacture – the year of manufacture being considered to be the first calendar year – and the second category comprising those sold second-hand after that two-year period ( Brzeziński , paragraph 34). |
105. According to Milk Marque and the NFU, those measures cannot be justified under Articles 30 and 46 EC because aims of a purely economic nature, such as those envisaged by the Secretary of State, can never justify an obstacle to the fundamental principles of free movement (Case 288/83 Commission v Ireland [1985] ECR 1761, paragraph 28; Case C-288/89 Stichting Collectieve Antennevoorziening Gouda [1991] ECR I-4007, paragraph 11, and Case C-120/95 Decker [1998] ECR I-1831, paragraph 39) and recourse to Treaty derogations is not possible where the Community provides for harmonisation of the measures necessary to achieve the specific objective pursued by such derogations (Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 18), in the present case, the fixing of the target price and the common organisation of the market in milk and milk products. | 28 FINALLY , IRELAND MAY NOT RELY , IN SUPPORT OF THE MEASURE AT ISSUE , ON THE EXCEPTION OF PUBLIC POLICY PROVIDED FOR IN ARTICLE 36 OF THE TREATY . THAT PROVISION , AS THE COURT HAS CONSISTENTLY POINTED OUT IN ITS DECISIONS , MAY NOT BE RELIED ON BY A MEMBER STATE TO PROTECT ITS ECONOMIC INTERESTS ( SEE JUDGMENT OF 19 DECEMBER 1961 IN CASE 7/61 COMMISSION V ITALY ( 1961 ) ECR 317 , AND MOST RECENTLY , JUDGMENT OF 7 FEBRUARY 1984 IN CASE 238/82 DUPHAR V NETHERLANDS STATE ( 1984 ) ECR 523 , PARAGRAPH 23 ).
| 46. However, according to settled case-law, the need for a uniform interpretation of Community regulations makes it impossible for the text of a provision to be considered in isolation but requires, on the cont rary, that it should be interpreted and applied in the light of the versions existing in the other official languages (Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 46). |
40
Moreover, there is nothing in the file submitted to the Court to suggest that there is, in the present case, a particular measure allowing legal persons, which do not in any event fall within Article 5(2)(b) of Directive 2001/29, to request to be exempted from contributing to the financing of that compensation or, at least, to seek reimbursement (see, in that regard, judgments of 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraphs 25 to 31 and 37, and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 45) under the detailed rules that it is solely for the Member States to establish. | 28. The Court has held that a system for financing fair compensation such as that described in paragraphs 24 and 25 of this judgment is compatible with the requirements of a ‘fair balance’ only if the digital reproduction equipment, devices and media concerned are liable to be used for private copying and, therefore, are likely to cause harm to the author of the protected work. There is therefore, having regard to those requirements, a necessary link between the application of the private copying levy to the digital reproduction equipment, devices and media and their use for private copying, such that the indiscriminate application of the private copying levy to all types of digital reproduction equipment, devices and media, including in the case where they are acquired by persons other than natural persons for purposes clearly unrelated to private copying, does not comply with Article 5(2) of Directive 2001/29 ( Padawan , paragraphs 52 and 53). | 86. Il s’ensuit que, en application des articles 2, paragraphe 1, et 4, paragraphe 1, de la directive 85/337, et hormis les cas exceptionnels visés à l’article 2, paragraphe 3, de celle-ci, les projets qui relèvent de l’annexe I de cette directive doivent, en tant que tels, être soumis, avant d’être autorisés, à une évaluation systématique de leurs incidences sur l’environnement (voir, en ce sens, arrêts du 23 novembre 2006, Commission/Irlande, C‑486/04, Rec. p. I‑11025, point 45, ainsi que du 5 juillet 2007, Commission/Italie, C‑255/05, Rec. p. I‑5767, point 52). Il en résulte que les États membres ne disposent d’aucune marge d’appréciation à cet égard. |
24. In this respect, it should first of all be pointed out that, although, as the German, Netherlands, Austri an, Swedish and United Kingdom Governments as well as the Commission have observed, the Member States are competent, under Article 149(1) EC, as regards the content of teaching and the organisation of their respective education systems, it is none the less the case that that competence must be exercised in compliance with Community law (see, to that effect, Case C‑308/89 di Leo [1990] ECR I‑4185, paragraphs 14 and 15; Case C‑337/97 Meeusen [1999] ECR I‑3289, paragraph 25; Case C‑147/03 Commission v Austria [2005] ECR I‑5969, paragraphs 31 to 35, and Schwarz and Gootjes-Schwarz , paragraph 70) and, in particular, in compliance with the Treaty provisions on the freedom to move and reside within the territory of the Member States, as conferred by Article 18(1) EC (see, to that effect, Schwarz and Gootjes-Schwarz , paragraph 99). | 31. Under the first paragraph of Article 12 EC, within the scope of application of the Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality is to be prohibited. | 51. In the light of that objective, the one-year period with respect to the TIR carnet holder must therefore, as the Commission observes, be regarded as constituting a procedural rule which is directed only at the administrative authorities with a view to encouraging them to intervene as soon as possible (see, to that effect, SPKR , paragraph 34). |
42. More specifically, as regards the conditions relating to demographic density, the Court considered that the uniform application of those conditions, without any possibility of derogation, would lead, in certain rural areas where the population is generally dispersed and less numerous, to certain inhabitants concerned finding themselves beyond reasonable distance of a pharmacy and thus possibly being denied adequate access to pharmaceutical services (see, to that effect, Blanco Pérez and Chao Gómez , paragraph 97). | 97. That may be the case, first, in certain rural areas where the population is generally dispersed and less numerous. The effect of that special feature may be that, were the condition of the minimum number of 2 800 inhabitants to be uniformly applied, certain inhabitants concerned would find themselves beyond reasonable reach of a pharmacy and would thus be denied adequate access to pharmaceutical services. | 180. First, such obligations are the corollary to the prohibition on the abandonment, dumping or uncontrolled disposal of waste laid down in the second paragraph of Article 4 of the Directive, a provision already found to have been breached by Ireland in paragraph 176 of the present judgment (see Case C-1/03 Van de Walle and Others [2004] ECR I-0000, paragraph 56). |
39. Given that the freedom of establishment prohibits any discrimination based on the place in which companies or partnerships have their seat (see, to that effect, Saint-Gobain ZN , paragraph 35, and Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 40), it is not contested that the German tax legislation in issue in the main proceedings, which is comparable in this respect to the Belgian tax legislation that applied in the case resulting in the judgment in Case C‑513/04 Kerckhaert and Morres [2006] ECR I‑10967, paragraph 17, does not make any distinction between taxation of income derived from the profits of partnerships established in Germany, and taxation of income derived from the profits of partnerships established in another Member State which subjects the profits made by those partnerships in that State to a rate of tax below 30%. By applying the set-off method to such foreign partnerships, that legislation merely subjects, in Germany, the profits made by such partnerships to the same tax rate as profits made by partnerships established in Germany. | 17. Contrary to the arguments submitted by Mr and Mrs Kerckhaert-Morres, the case in the main proceedings differs from those which gave rise to the judgments cited above inasmuch as the Belgian tax legislation does not make any distinction between dividends from companies established in Belgium and dividends from companies established in another Member State. Under Belgian law both are taxed at an identical rate of 25% by way of income tax. | 27
That broad construction of the concept of a ‘decision’ taken by a contracting authority is confirmed by the fact that Article 1(1) of Directive 89/665 does not lay down any restriction with regard to the nature or content of the decisions it refers to. Moreover, a restrictive interpretation of that concept would be incompatible with the terms of Article 2(1)(a) of that directive which requires Member States to make provision for interim relief procedures in relation to any decision taken by the contracting authorities (see, to that effect, judgment of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 30 and the case-law cited). |
39. Consequently, the rules on jurisdiction derogating from the general principle cannot result in an interpretation which goes beyond the situations expressly envisaged in Regulation No 44/2001 (see, inter alia, Case 150/77 Bertrand [1978] ECR 1431, paragraph 17; Case C‑26/91 Handte [1992] ECR I‑3967, paragraph 14; Shearson Lehman Hutton , paragraph 16; Case C‑412/98 Group Josi [2000] ECR I‑5925, paragraph 49; and Freeport , paragraph 35). | 17TO THIS FINDING MUST BE ADDED THE FACT THAT THE COMPULSORY JURISDICTION PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 14 OF THE CONVENTION MUST , BECAUSE IT DEROGATES FROM THE GENERAL PRINCIPLES OF THE SYSTEM LAID DOWN BY THE CONVENTION IN MATTERS OF CONTRACT , SUCH AS MAY BE DERIVED IN PARTICULAR FROM ARTICLES 2 AND 5 ( 1 ), BE STRICTLY LIMITED TO THE OBJECTIVES PROPER TO SECTION 4 OF THE SAID CONVENTION .
| 71. Moreover, at the time of issuing the authorisation, it is not certain that all the cases of real and serious threats to the security of energy supply may be identified and taken into account (judgment in Case C‑207/07 Commission v Spain , paragraph 53). |
28. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre concerné telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts Commission/Grèce, C‑200/88, EU:C:1990:422, point 13, et Commission/Belgique, C‑317/14, EU:C:2015:63, point 34). | 34. It must be added that, in any event, the question whether a Member State has failed to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Commission v United Kingdom , C‑640/13, EU:C:2014:2457, paragraph 42 and the case-law cited). | 24
Nevertheless, as is clear from paragraph 20 of the present judgment, Article 4(1) of the Framework Directive, which lays down the requirement to ensure that an effective appeal mechanism exists, is an expression of the principle, enshrined in Article 47 of the Charter, of effective judicial protection of an individual’s rights under EU law (see, to that effect, judgment of 13 March 2007, Unibet, C‑432/05, EU:C:2007:163, paragraph 44); that principle must be respected in every case. |
50
It is the Court’s settled case-law that the meaning and scope of terms, for which EU law gives no definition, must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part (judgments of 10 March 2005, EasyCar, C‑336/03, EU:C:2005:150, paragraph 21, and of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 19 and the case-law cited) and it being precluded that, where there are doubts, the text of a provision be considered in isolation in one of its language versions (see, to that effect, judgments of 16 July 2009, Horvath, C‑428/07, EU:C:2009:458, paragraph 35 and the case-law cited, and of 11 June 2015, Pfeifer & Langen, C‑51/14, EU:C:2015:380, paragraph 34). | 35. Also, it is clear from settled case-law that the need for a uniform interpretation of the provisions of Community law means that, in cases of doubt, the text of a provision should not be considered in isolation in one of its versions, but requires, on the contrary, that it should be interpreted and applied in the light of the versions existing in the other official languages (Case C-321/96 Mecklenburg [1998] ECR I‑3809, paragraph 29, and Case C-311/06 Consiglio Nazionale degli Ingegneri [2009] ECR I‑0000, paragraph 53). The expression ‘ particularités topographiques ’ in the French version of Regulation No 1782/2003 must therefore be compared, for example, with the expression ‘landscape features’ in the English version of that regulation. | 24
As regards the installations which, in certain sectors of activity, receive greenhouse gas emission allowances free of charge in accordance with Article 10a(11) of Directive 2003/87, the quantity of those allowances allocated is to decrease gradually from 2013, with a view to reaching the abolition of free allowances in 2027 (judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 82). |
38. In order to alleviate such unequal treatment, Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are the subject of long delay may receive the same compensation, namely that laid down in Article 5(1)(c)(iii) of that regulation, as passengers whose flights are cancelled (see Sturgeon and Others , paragraph 61). | 61. In those circumstances, the Court finds that passengers whose flights are delayed may rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. | 37. As regards the first objection, although the Court has no jurisdiction under Article 234 EC to apply a rule of Community law to a particular case and thus to judge a provision of national law by reference to such a rule it may, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of that provision (Case 20/87 Gauchard [1987] ECR 4879, paragraph 5, and Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99 Reisch and Others [2002] ECR I-2157, paragraph 22). |
35. Second, it follows from the second recital in the preamble to Regulation No 40/94 as amended that the objective of that regulation is the creation of a Community regime for trade marks to which uniform protection is given and which produce their effects throughout the entire area of the European Union (see, to that effect, Case C‑235/09 DHL Express France [2011] ECR I‑0000, paragraph 41). | 41. In addition, it follows from the second recital in the preamble to Regulation No 40/94 that the objective pursued by that regulation involves the creation of Community arrangements for trade marks to which uniform protection is given and which produce their effects throughout the entire area of the European Union. | 63. Accordingly, the practice in question, adopted by a dominant undertaking, constitutes an abuse within the meaning of Article 102 TFEU, where, given its effect of excluding competitors who are at least as efficient as itself by squeezing their margins, it is capable of making more difficult, or impossible, the entry of those competitors onto the market concerned (see, to that effect, Deutsche Telekom v Commission , paragraph 253). |
22. As the Court has held on a number of occasions, the justification for the prohibition of customs duties and any charges having an equivalent effect lies in the fact that any pecuniary charge, however small, imposed on goods by reason of the fact that they cross a frontier, constitutes an obstacle to the movement of goods which is aggravated by the resulting administrative formalities. It follows that any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier and is not a customs duty in the strict sense constitutes a charge having an equivalent effect to a customs duty within the meaning of Articles 23 EC and 25 EC, even if it is not imposed on behalf of the State (see, inter alia , Case 158/82 Commission v Denmark [1983] ECR 3573, paragraph 18; and Case 18/87 Commission v Germany [1988] ECR 5427, paragraph 5). | 18 THE COURT HAS CONSISTENTLY HELD THAT ANY PECUNIARY CHARGE , WHATEVER ITS DESIGNATION OR MODE OF APPLICATION , WHICH IS IMPOSED UNILATERALLY ON GOODS BY REASON OF THE FACT THAT THEY CROSS A FRONTIER , AND WHICH IS NOT A CUSTOMS DUTY IN THE STRICT SENSE , CONSTITUTES A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY WITHIN THE MEANING OF ARTICLES 9 , 12 , 13 AND 16 OF THE TREATY , EVEN IF IT IS NOT IMPOSED ON BEHALF OF THE STATE .
| 20. It should be borne in mind, next, that Directive 2005/29 in principle fully harmonises at Community level the rules relating to unfair business‑to-consumer commercial practices, so that, as Article 4 thereof expressly provides, Member States may not adopt more restrictive rules than those provided for in the directive, even in order to achieve a higher level of consumer protection (see Case C-304/08 Plus Warenhandelsgesellschaft [2010] ECR I-217, paragraph 41 and the case-law cited). |
65. Since the Court has already ruled that the standstill clause in Article 13 of Decision No 1/80 is of the same kind as that contained in Article 41(1) of the Additional Protocol and that the objective pursued by those two clauses is identical (see Case C‑37/98 Savas [2000] ECR I‑2927, paragraph 50, and Abatay and Others , paragraphs 70 to 74), the interpretation set out in the preceding paragraph must be equally valid as regards the standstill obligation which is the basis of Article 13 in relation to freedom of movement for workers. | 72. Moreover, they pursue the same objective, which is to create conditions conducive to the gradual establishment of freedom of movement for workers, of the right of establishment and of freedom to provide services by prohibiting national authorities from creating new obstacles to those freedoms so as not to make the gradual achievement of those freedoms more difficult between the Member States and the Republic of Turkey. | 104
The essential legal criterion for ascertaining whether an agreement involves a restriction of competition ‘by object’ is the finding that such an agreement reveals in itself a sufficient degree of harm to competition for it to be considered that it is not appropriate to assess its effects (see, inter alia, judgment of 26 November 2015, Maxima Latvija, C‑345/14, EU:C:2015:784, paragraph 20). |
41. In this case, it is not obvious that the interpretation of Community law requested is not necessary for the referring court. Such a reply might be useful to it if its national law were to require that a Portuguese national must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation ( Guimont , cited above, paragraph 23, and Reisch and Others , cited above, paragraph 26). | 26 In this case, it is not obvious that the interpretation of Community law requested is not necessary for the referring court. Such a reply might be useful to it if its national law were to require that an Austrian national must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation (Guimont, cited above, paragraph 23). | 80. Since Directive 2001/83 contains specific rules on the advertising of medicinal products, it constitutes a special rule as compared with the general rules concerning protection of consumers against unfair commercial practices by undertakings towards them, such as those provided for in Directive 2005/29 (see, by analogy, judgment in Gintec , C‑374/05, EU:C:2007:654, paragraph 31). |
32. Second, it must be noted that the declared intention of the parties concerning the VAT liability of a transaction must be taken into consideration in the course of an overall assessment of the circumstances of a transaction, provided that it is supported by objective evidence ( J.J. Komen en Zonen Beheer Heerhugowaard , paragraph 33 and the case-law cited). | 33. As regards the argument that it is also necessary to take into consideration the common intention of the parties which, it is said, was to create a new building, it must be noted that the Court has already held that the declared intention of the parties concerning the VAT liability of a transaction must be taken into consideration, in the course of an overall assessment of the circumstances of a transaction, provided that it is supported by objective evidence (see, to that effect, Case 268/83 Rompelman [1985] ECR 655, paragraph 24, and Case C-444/10 Schriever [2011] ECR I-11071, paragraph 38). | 27. It is necessary to recall, at the outset, that the deduction system established by the directive is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. Thus, the common system of VAT seeks to ensure complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject, in principle, to VAT (see Case C‑408/98 Abbey National [2001] ECR I‑1361, paragraph 24 and the case‑law cited). |
79. Finally, it may be seen from the contested decision that, despite the contacts between the German Government and the appellants on the one side and the Commission on the other revealing persistent differences of opinion as to whether that provision was applicable, no specific argument was put forward during the administrative procedure (see Case C-156/98 Germany v Commission , paragraphs 104 to 108). | 106 In its relations with the Commission, the German Government has referred to Article 92(2)(c) of the Treaty on various occasions since 1990, insisting on the importance of that provision to the revival of the new Länder. | 45 Furthermore, whilst the foregoing is sufficient for the present action to succeed, it should be recalled that, according to settled case-law, the principle of fiscal neutrality, to which the Commission has also referred, precludes, inter alia, economic operators carrying on the same activities from being treated differently as far as the levying of VAT is concerned (Gregg, cited above, paragraph 20). |
21 The Court added that since the judgment in Bilka included no limitation of its effects in time, the direct effect of Article 119 could be relied upon in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and that that could be done as from 8 April 1976, the date of the Defrenne judgment in which the Court held for the first time that Article 119 had direct effect, whilst limiting the effects in time of that interpretation (Vroege, paragraph 30 and Fisscher, paragraph 27). | 30 Moreover, since the Court' s judgment in the Bilka case included no limitation in time, the direct effect of Article 119 can be relied upon in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and this may be done as from 8 April 1976, the date of the Defrenne judgment in which the Court held for the first time that Article 119 has direct effect. | 10. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêt du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9 et jurisprudence citée). |
44. That Article 6 does not prescribe a specific measure to be taken in the event of a breach of the prohibition of discrimination, but leaves Member States free to choose between the different solutions suitable for achieving the objective of the directive, depending on the different situations which may arise (Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 18, and Marshall , paragraph 23). | 18 ARTICLE 6 REQUIRES MEMBER STATES TO INTRODUCE INTO THEIR NATIONAL LEGAL SYSTEMS SUCH MEASURES AS ARE NECESSARY TO ENABLE ALL PERSONS WHO CONSIDER THEMSELVES WRONGED BY DISCRIMINATION ' ' TO PURSUE THEIR CLAIMS BY JUDICIAL PROCESS ' ' . IT FOLLOWS FROM THE PROVISION THAT MEMBER STATES ARE REQUIRED TO ADOPT MEASURES WHICH ARE SUFFICIENTLY EFFECTIVE TO ACHIEVE THE OBJECTIVE OF THE DIRECTIVE AND TO ENSURE THAT THOSE MEASURES MAY IN FACT BE RELIED ON BEFORE THE NATIONAL COURTS BY THE PERSONS CONCERNED . SUCH MEASURES MAY INCLUDE , FOR EXAMPLE , PROVISIONS REQUIRING THE EMPLOYER TO OFFER A POST TO THE CANDIDATE DISCRIMINATED AGAINST OR GIVING THE CANDIDATE ADEQUATE FINANCIAL COMPENSATION , BACKED UP WHERE NECESSARY BY A SYSTEM OF FINES . HOWEVER THE DIRECTIVE DOES NOT PRESCRIBE A SPECIFIC SANCTION ; IT LEAVES MEMBER STATES FREE TO CHOOSE BETWEEN THE DIFFERENT SOLUTIONS SUITABLE FOR ACHIEVING ITS OBJECTIVE .
| 33. Therefore, if the national legislation at issue falls under Article 49 EC, it will not be necessary for the Court to rule on the interpretation of Article 18 EC ( Stylianakis , paragraph 20, and ITC , paragraph 65). |
19. Consequently, Article 40 of the EEA Agreement and Annex XII thereto are applicable to a dispute such as that before the referring court, which relates to a transaction between nationals of States which are party to that Agreement. According to settled case-law, the Court may give an interpretation of those provisions where a reference is made by a court of a Member State of the European Union with regard to the scope within that Member State of an agreement which forms an integral part of the EU legal system (see Case C-321/97 Andersson and Wåkerås-Andersson [1999] ECR I-3551, paragraphs 26 to 31; Case C-300/01 Salzmann [2003] ECR I-4899, paragraph 65; and Case C‑452/01 Ospelt and Schlössle Weissenberg [2003] ECR I‑9743, paragraph 27). | 27 Consequently, the Court has, in principle, jurisdiction to give a preliminary ruling on the interpretation of the EEA Agreement where such a question is raised before a court or tribunal of one of the Member States. | 32 The Court has held that 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 (see Walrave, paragraph 18, and Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 83). |
35. Where, without initiating the formal review procedure under Article 88(2) EC, the Commission finds, on the basis of Article 88(3) EC, that aid is compatible with the common market, the persons intended to benefit from those procedural guarantees may secure compliance therewith only if they are able to challenge that decision before the Community judicature ( Cook v Commission , paragraph 23, Matra v Commission , paragraph 17, and Commission v Sytraval and Brink’s France , paragraph 40). For those reasons, the Court declares to be admissible an action for the annulment of such a decision brought by a person who is concerned within the meaning of Article 88(2) EC where he seeks, by instituting proceedings, to safeguard the procedural rights available to him under the latter provision ( Cook v Commission , paragraphs 23 to 26, and Matra v Commission , paragraphs 17 to 20). | 24 The parties concerned, within the meaning of Article 93(2) of the Treaty, have been defined by the Court as the persons, undertakings or associations whose interests might be affected by the grant of the aid, in particular competing undertakings and trade associations (Case 323/82 Intermills v Commission [1984] ECR 3809, at paragraph 16). | 42. It is settled case-law that, in the interests of legal certainty and for ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and the notes to the sections or chapters (see, in particular, Case C‑183/06 RUMA [2007] ECR I-1559, paragraph 27, and Joined Cases C‑208/06 and C‑209/06 Medion and Canon Deutschland [2007] ECR I‑7963, paragraph 34). |
130 That argument is based on a misreading of the provisions and a misunderstanding of their logic. As was stated in paragraph 33 of the present judgment, the applicability to an agreement of Article 85 of the Treaty does not prevent Article 86 of the Treaty being applied to the conduct of the parties to the same agreement, provided that the conditions for the application of each provision are fulfilled. More particularly, the grant of an exemption under Article 85(3) does not prevent application of Article 86 of the Treaty (see, to that effect, Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 11). | 11 For the reasons given in, respectively, points 20 to 31, points 42 to 69 and points 76 to 86 of the Advocate General' s Opinion, the first, second and third pleas in law must be dismissed as unfounded.
The fourth plea in law | 19. The terms used to specify those exemptions are to be interpreted strictly, since the exemptions constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person. However, that requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 should be construed in such a way as to deprive them of their intended effect (Case C-284/03 Temco Europe [2004] ECR I-11237, paragraph 17; Horizon College , paragraph 16; and Canterbury Hockey Club and Canterbury Ladies Hockey Club , paragraph 17). |
25. In accordance with settled case-law, in the absence of European Union rules in the field 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 European Union law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render practically impossible or excessively difficult the exercise of rights conferred by European Union law (principle of effectiveness) (see, in particular, Case C-432/05 Unibet [2007] ECR I-2271, paragraph 43; Joined Cases C-222/05 to C-225/05 van der Weerd and Others [2007] ECR I-4233, paragraph 28 and the case-law cited; and Case C‑2/06 Kempter [2008] ECR I‑411, paragraph 57). | 43. In that regard, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Case 33/76 Rewe , paragraph 5; Comet , paragraphs 13 to 16; Peterbroeck , paragraph 12; Courage and Crehan , paragraph 29; Eribrand , paragraph 62; and Safalero , paragraph 49). | 61THE POWER TO ESTABLISH PERMANENT RULES FOR FISHING BELONGS THEREFORE TO THE COMMUNITY AS SUCH AND , ACCORDING TO THE SETTLED CASE-LAW OF THE COURT , AS EXPRESSED IN PARTICULAR IN PARAGRAPH 31 OF THE DECISION IN THE JUDGMENT OF 31 MARCH 1971 IN CASE 22/70 , COMMISSION V COUNCIL ( 1971 ) ECR 263 , THIS POWER IS AN EXCLUSIVE ONE .
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34. In that regard, as the Advocate General has observed in points 40 and 41 of his Opinion, in order to assess whether that employer-employee relationship exists, it is necessary to check whether the person concerned performs his activities in his own name, on his own behalf and under his own responsibility, and whether he bears the economic risk associated with carrying out those activities. In order to find that the activities at issue are independent, the Court has thus taken into account the complete absence of any employer-employee relationship between public authorities and operators who were not integrated into the public administration, as well as the fact that such operators acted on their own account and under their own responsibility, were free to arrange how they performed their work and themselves received the emoluments which made up their income (see, to that effect, judgments in Commission v Netherlands , 235/85, EU:C:1987:161, paragraph 14; Heerma , C‑23/98, EU:C:2000:46, paragraph 18; and van der Steen , C‑355/06, EU:C:2007:615, paragraphs 21 to 25). | 14 ARTICLE 4 ( 4 ) EXCLUDES ALL PERSONS WHO ARE BOUND TO AN EMPLOYER BY A CONTRACT OF EMPLOYMENT OR BY ANY OTHER LEGAL TIES CREATING THE RELATIONSHIP OF EMPLOYER AND EMPLOYEE AS REGARDS WORKING CONDITIONS, REMUNERATION AND EMPLOYER' S LIABILITY . NOTARIES AND BAILIFFS, HOWEVER, ARE NOT BOUND TO THE PUBLIC AUTHORITIES AS EMPLOYEES SINCE THEY ARE NOT INTEGRATED INTO THE PUBLIC ADMINISTRATION . THEY CARRY OUT THEIR ACTIVITIES ON THEIR OWN ACCOUNT AND ON THEIR OWN RESPONSIBILITY; THEY ARE FREE, SUBJECT TO CERTAIN LIMITS IMPOSED BY STATUTE, TO ARRANGE HOW THEY SHALL PERFORM THEIR WORK AND THEY THEMSELVES RECEIVE THE EMOLUMENTS WHICH MAKE UP THEIR INCOME . THE FACT THAT THEY ARE SUBJECT TO DISCIPLINARY CONTROL UNDER THE SUPERVISION OF THE PUBLIC AUTHORITIES ( A SITUATION TO BE FOUND IN OTHER REGULATED PROFESSIONS ) AND THE FACT THAT THEIR REMUNERATION IS DETERMINED BY STATUTE ARE NOT SUFFICIENT GROUNDS FOR REGARDING THEM AS PERSONS WHO ARE BOUND BY LEGAL TIES TO AN EMPLOYER WITHIN THE MEANING OF ARTICLE 4 ( 4 ). | 78. For an argument based on such a justification to succeed, the Court requires, however, that a direct link be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy, with the direct nature of that link falling to be examined in the light of the objective pursued by the rules in question (see Papillon , paragraph 44 and the case-law cited). |
27 Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with respect to the same kind of charges or dues. That principle cannot, however, be interpreted as obliging a Member State to extend its most favourable rules governing reimbursement to all actions for repayment of charges or dues levied in breach of Community law (Edis, cited above, paragraph 36, SPAC, cited above, paragraph 20 and Case C-228/96 Aprile, cited above, paragraph 20). | 20 Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with respect to the same kind of charges or dues. That principle cannot, however, be interpreted as obliging a Member State to extend its most favourable rules governing repayment to all actions for repayment of charges or dues levied in breach of Community law (Edis, cited above, paragraph 36). | 34. Therefore, although the Convention defining the Statute of the European Schools constitutes, as far as the European Union is concerned, an act of one of the institutions of the European Union, within the meaning of point (b) of the first paragraph of Article 267 TFEU, it is also governed by international law and, more specifically, as regards its interpretation, by the international law of treaties (see, to that effect, judgment in Brita , C‑386/08, EU:C:2010:91, paragraph 39). |
47. It should also be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions are appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, inter alia, Case 137/85 Maizena [1987] ECR 4587, paragraph 15; Case C-339/92 ADM Ölmühlen [1993] ECR I-6473, paragraph 15; and Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, paragraph 59). | 59 In this connection, it should be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions are appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (Maizena, cited above, paragraph 15; and Case C-339/92 ADM Ölmühlen [1993] ECR I-6473, paragraph 15). | 27. In that regard, it should first be recalled that it follows from the Court’s case-law that the social objective of Directive 80/987 is to guarantee employees a minimum of protection at European Union level in the event of the employer’s insolvency through payment of outstanding claims resulting from contracts of employment or employment relationships and relating to pay for a specific period (see Case C‑19/01, C‑50/01 and C‑84/01 Barsotti and Others [2004] ECR I‑2005, paragraph 35, and Visciano , paragraph 27). |
39. In that regard, a system of undistorted competition can be guaranteed only if equality of opportunity is secured as between the various economic operators (see Case C-462/99 Connect Austria [2003] ECR I-5197, paragraph 83). | 83. The Court has consistently ruled that a system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators (Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 51, and GB-Inno-BM , cited above, paragraph 25). | 34. According to that case-law, the Commission is entitled, if necessary by adopting a decision, to compel an undertaking to provide all necessary information concerning such facts as may be known to it but may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (Case 374/87 Orkem v Commission [1989] ECR 3283, paragraphs 34 and 35; Joined Cases C‑204/00 P, C‑205/00 P, C-211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 61 and 65; and Joined Cases C‑65/02 P and C‑73/02 P ThyssenKrupp v Commission [2005] ECR I‑6773, paragraph 49). |
9. In that regard, it is sufficient to recall, first, that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify the failure to observe obligations and deadlines laid down in a directive (see, inter alia, C-70/06 Commission v Portugal [2008] ECR I-1, paragraph 22, and judgment of 11 December 2008 in Case C‑330/08 Commission v France , paragraph 16). | 22. According to settled case‑law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify the failure to observe obligations arising under Community law (see Commission v Germany , paragraph 38 and the case‑law cited). | 115. It is settled case-law that complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness cannot lead to the judgment being set aside and are therefore nugatory (see, in particular, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 148). |
70. In that respect, it is to be borne in mind that, according to settled case-law, in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is therefore the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumptions (see, inter alia, Case C-555/10 Commission v Austria [2013] ECR I-0000, paragraph 62, and Case C-556/10 Commission v Germany [2013] ECR I-0000, paragraph 66, and the case-law cited). | 62. According to settled case-law, in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is therefore the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumptions (see, inter alia, Case C-494/01 Commission v Ireland [2005] ECR I-3331, paragraph 41; Case C-335/07 Commission v Finland [2009] ECR I-9459, paragraph 46: and the judgment of 10 December 2009 in Case C-390/07 Commission v United Kingdom , paragraph 43). | 17. Although the referring court does not refer directly to the fundamental rules and general principles of EU law in the order for reference, it is settled case-law that in order to provide a useful answer to a national court which has referred a question to it, the Court may deem it necessary to consider rules of EU law to which the national court has not referred in its request for a preliminary ruling (see, to that effect, judgment in Medipac — Kazantzidis , C‑6/05, EU:C:2007:337, paragraph 34). |
In that judgment, the Court, taking into account the case-law according to which, when the amount of the fine is determined, the application of different methods of calculation cannot result in discrimination between the undertakings which have participated in the same infringement of Article 101 TFEU (judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 58), reduced the fine imposed on a participant in an infringement, in order to take account of the fact that the Commission, by incorrectly applying the method it had chosen to determine the amount of the fine, had imposed on another participant in the same cartel a fine which reduced the relative size of that participant’s contribution to the infringement (judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraphs 70 to 80). | 80. In those circumstances, in the light of all the considerations of fact and law in the present case, the amount of the fine imposed on Guardian in Article 2 of the decision at issue must be reduced by 30% and set at EUR 103 600 000.
Costs | 29. Thus, where engagement in the sporting activity must be assessed in the light of the Treaty provisions relating to freedom of movement for workers or freedom to provide services, it will be necessary to determine whether the rules which govern that activity satisfy the requirements of Articles 39 EC and 49 EC, that is to say do not constitute restrictions prohibited by those articles ( Deliège , paragraph 60). |
32
In that regard, it should be recalled that Article 34 of Regulation No 1829/2003 permits a Member State to adopt emergency measures under that provision, subject to compliance not only with the substantive conditions laid down in that article but also with the procedural conditions provided for in Article 54 of Regulation No 178/2002 (see, to that effect, judgment of 8 September 2011, Monsanto and Others, C‑58/10 to C‑68/10, EU:C:2011:553, paragraphs 66 to 69). | 68. It should also be noted that Article 53 of Regulation No 178/2002 concerns emergency measures which may be taken by the Commission, with the adoption of such measures by the Member States coming under Article 54 of that regulation. | 123 In that regard, it is sufficient to note that that argument, as put forward, is irrelevant. The Spanish Government has not alleged the existence of circumstances comparable to those in other Member States nor has it explained in what way its control system was superior to that of certain other Member States (see Case C-242/97 Belgium v Commission [2000] ECR I-3421, paragraphs 130 and 131). |
47. Moreover, where the Commission has adduced sufficient evidence to prove the relevant facts which occurred in the territory of the defendant Member State, it is for the latter to challenge in substance and in detail the information produced and the consequences flowing therefrom (see, to that effect, Case 272/86 Commission v Greece [1988] ECR 4875, paragraph 21, and Case C-365/97 Commission v Italy [1999] ECR I‑7773, paragraphs 84 and 86). | 84 Accordingly, the Commission has adduced sufficient evidence to show that biological and chemical waste has been discharged into the watercourse which bisects the San Rocco valley. | 35. As regards ‘sound and fair marketable quality’, it must be observed that Article 13 of Regulation No 3665/87 appears in Chapter 1, entitled ‘Entitlement to refund’, of Title 2, entitled ‘Exports to non-member countries’, which shows that ‘sound and fair marketable quality’ is a material condition required for the payment of refunds (see the judgment in Fleisch-Winter , C‑309/04, EU:C:2005:732, paragraph 28). |
30. Furthermore, the scope of the principle of the protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which have arisen under earlier rules (see, to that effect, Pokrzeptowicz-Meyer , paragraph 55). | 55 It follows from settled case-law that the scope of the principle of the protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which arose under the earlier rules (see, among other cases, Case 278/84 Germany v Commission [1987] ECR 1, paragraph 36, and Case C-60/98 Butterfly Music [1999] ECR I-3939, paragraph 25). | 38. The Court has however also accepted that a taxable person has a right to deduct even where there is no direct and immediate link between a particular input transaction and one or more output 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 (Case C‑98/98 Midland Bank [2000] ECR I‑4177, paragraph 31; Case C‑465/03 Kretztechnik [2005] ECR I‑4357, paragraph 36; and Becker , paragraph 20). That may be the case, inter alia, if it is established that the taxable person himself acquired the client base at issue in the course of his activity as a managing director of a newly formed partnership and the costs resulting from that acquisition had to be considered as forming part of the general costs relating to his activity as managing director. |
29. Furthermore, a failure to observe that condition laid down in Article 8(1) of that regulation deprives of its substance the procedural guarantee accorded to Member States by the fifth point of Article 5(2)(c) of Regulation No 729/70 and the fifth subparagraph of Article 7(4) of Regulation No 1258/1999, which limits the period in respect of which expenditure can be refused financing by the EAGGF (see, to that effect, inter alia, Case C‑158/00 Luxembourg v Commission [2002] ECR I‑5373, paragraph 24, and Case C‑300/02 Greece v Commission [2005] ECR I‑1341, paragraph 70). | 70. In accordance with the Court’s case-law, the Commission is bound, in its relations with the Member States, to respect the conditions it has imposed on itself by implementing regulations (see Case C‑170/00 Finland v Commission , paragraph 34). A failure to observe those conditions may, depending on its significance, deprive of its efficacy the procedural guarantee accorded to Member States by Article 5(2)(c) of Regulation No 729/70, which limits the period for which expenditure can be refused financing by the EAGGF (see in particular, Case C‑158/00 Luxembourg v Commission [2002] ECR I‑5373, paragraph 24). | 54
Nevertheless, it is settled case-law of the Court that fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (judgment of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 63 and the case-law cited). |
36. The intended use of a product may also constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see Case C-459/93 Thyssen Haniel Logistic [1995] ECR I-1381, paragraph 13). | 13 In this connection it should be noted that the intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product' s objective characteristics and properties (see the judgment in Case 36/71 Henck [1972] ECR 187, at paragraph 4). | 38. Such a difference in treatment cannot be explained by an objective difference in situation. Under legislation of a Member State which seeks to tax unrealised capital gains generated within its territory, the situation of a company which transfers assets to a permanent establishment located in another Member State is, as regards the taxation of the capital gains related to those transferred assets which were generated in the former Member State prior to that transfer, comparable to that of a company which makes a similar transfer to a permanent establishment located within the territory of that Member State (see, to that effect, judgment in Commission v Germany , C‑591/13, EU:C:2015:230, paragraph 60). |
31
In those circumstances, the meaning and scope of the term ‘judicial authority’, within the meaning of Article 6(1) of the Framework Decision, cannot be left to the assessment of each Member State (see, by analogy, judgments of 17 July 2008, Kozłowski, C‑66/08, EU:C:2008:437, paragraph 43, and of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraph 38). | 43. Since the objective of the Framework Decision, as indicated in paragraph 31 of this judgment, is to put in place a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of criminal proceedings, based on the principle of mutual recognition – a surrender which the executing judicial authority can oppose only on one of the grounds for refusal provided for by the Framework Decision – the terms ‘staying’ and ‘resident’, which determine the scope of Article 4(6), must be defined uniformly, since they concern autonomous concepts of Union law. Therefore, in their national law transposing Article 4(6), the Member States are not entitled to give those terms a broader meaning than that which derives from such a uniform interpretation. | 30. In the first place, the objective of Directive 65/65, which essentially seeks to protect consumers by ensuring that public health is safeguarded, warrants such a wide definition, which gives that directive a broad scope. As the Court stated in paragraph 17 of Van Bennekom , the criterion of the ‘presentation’, which stems from the first subparagraph of Article 1(2) of the directive in question, is designed to catch not only medicinal products having a genuine therapeutic or medical effect but also those which are not sufficiently effective or do not have the effect which consumers would be entitled to expect from the way in which they are presented, in order to protect the consumer not only from harmful or toxic medicinal products, but also from a variety of products used instead of the proper remedies. The objective of Directive 95/59, recalled in p aragraph 17 of this judgment, is completely different and does not warrant such a broad definition. |
24
The term ‘closely related’, contained in Article 132(1)(i) of Directive 2006/112, is not defined therein. Nevertheless, it is clear from the wording of that provision that it relates to the supply of services which are closely linked to ‘children’s or young people’s education, school or university education, vocational training or retraining’. Thus, a supply of services can be regarded as ‘closely related’ to those latter services only where they are actually supplied as services ancillary to the education provided by the relevant establishment, which constitutes the principal supply (see, to that effect, judgments of 14 June 2007, Horizon College, C‑434/05, EU:C:2007:343, paragraphs 27 and 28 and the case-law cited, and 25 March 2010, Commission v Netherlands, C‑79/09, not published, EU:C:2010:171, paragraph 50). | 50. L’article 132, paragraphe 1, sous b), g), et i), de la directive 2006/112 ne comporte aucune définition des notions d’opérations «étroitement liées» y figurant. Néanmoins, il ressort des termes mêmes des dispositions en question dudit article 132 que celles-ci ne visent pas les prestations de services qui ne présentent aucun lien avec, respectivement, «l’hospitalisation et les soins de santé», «l’aide et la sécurité sociales» ainsi que «l’éducation de l’enfance ou de la jeunesse, l’enseignement scolaire ou universitaire, la formation ou le recyclage professionnel». Dès lors, des prestations de services ne sauraient être considérées comme «étroitement liées» à ces dernières prestations que lorsqu’elles sont effectivement fournies en tant que prestations accessoires à celles-ci, lesquelles constituent les prestations principales (voir, en ce sens, arrêt Horizon College, précité, points 27 et 28 ainsi que jurisprudence citée). | 44. Toutefois, la jurisprudence de l’Union qui porte sur des restrictions à l’exercice des libertés de circulation au sein de l’Union ne saurait être intégralement transposée aux libertés garanties par l’accord EEE, dès lors que l’exercice de ces dernières s’inscrit dans un contexte juridique différent (voir, en ce sens, arrêt du 19 juillet 2012, A, C‑48/11, non encore publié au Recueil, point 34). |
40. It is apparent from the Commission Proposal (COM(73) 950 final) which resulted in the adoption of the Sixth Directive that the EU legislature, by adopting the second subparagraph of Article 4(4) of that directive, intended, either in the interests of simplifying administration or with a view to combating abuses such as, for example, the splitting-up of one undertaking among several taxable persons so that each might benefit from a special scheme, to ensure that Member States would not be obliged to treat as taxable persons those whose ‘independence’ is purely a legal technicality (see, to that effect, judgment in Commission v Sweden , C‑480/10, EU:C:2013:263, paragraph 37). | 37. As regards the objectives pursued by Article 11 of the VAT Directive, it is apparent from the Commission Proposal which resulted in the adoption of Directive 77/388 that, by adopting the second subparagraph of Article 4(4) of the Sixth Directive, which was replaced by Article 11 of the VAT Directive, the European Union legislature intended, either in the interests of simplifying administration or with a view to combating abuses such as, for example, the splitting-up of one undertaking among several taxable persons so that each might benefit from a special scheme, to ensure that Member States would not be obliged to treat as taxable persons those whose ‘independence’ is purely a legal technicality ( Commission v Ireland , paragraph 47). | 12 As the Court has already held, in particular in its judgment in Case 250/85 Brother v Council [1988] ECR 5683, at paragraph 16, the division of production and sales activities within a group made up of legally distinct companies can in no way alter the fact that the group is a single economic entity which organizes in that way activities that, in other cases, are carried on by what is in legal terms as well a single entity. |
77 It should be borne in mind that, in the context of competition law, the Court has held that the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed (see, in particular, Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Poucet and Pistre, cited above, paragraph 17; and Fédération Française des Sociétés d'Assurance, cited above, paragraph 14). | 14 In the context of competition law, the Court has held that the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, in particular, the judgments in Case C-41/90 Hoefner and Elser [1991] ECR I-1979, paragraph 21, and Poucet and Pistre, cited above, paragraph 17). | 51. In that regard, the Court has held that, even though an act adopted by a Community institution does not lay down a rule of law which that institution is bound to observe, but merely lays down a rule of conduct indicating the practice to be followed, that institution may not depart from it without giving the reasons which have led it to do so (see, to that effect, Case 148/73 Louwage v Commission [1974] ECR 81, paragraph 12; Case 190/82 Blomefield v Commission [1983] ECR 3981, paragraph 20; Case 343/82 Michael v Commission [1983] ECR 4023, paragraph 14; and Joined Cases 129/82 and 274/82 Lux v Court of Auditors [1984] ECR 4127, paragraph 20). |
75. The Court has consistently held that Article 1(2) of Directive 91/439 provides for mutual recognition, without any formality, of driving licences issued by Member States. That provision imposes on Member States a clear and precise obligation, which leaves no room for discretion as to the measures to be adopted in order to comply with it (see, to that effect, Awoyemi , paragraphs 41 and 42; Case C‑246/00 Commission v Netherlands [2003] ECR I‑7485, paragraphs 60 and 61; Kapper , paragraph 45; Wiedemann and Funk , paragraph 50; Zerche and Others , paragraph 47; and Weber , paragraph 26; order in Case C‑227/05 Halbritter [2006] ECR I‑49, paragraph 25; order in Case C‑340/05 Kremer [2006] ECR I‑98, paragraph 27). | 47. The Court has consistently held that Article 1(2) of Directive 91/439 provides for mutual recognition, without any formality, of driving licences issued by Member States. That provision imposes on Member States a clear and precise obligation, which leaves no room for discretion as to the measures to be adopted in order to comply with it (judgments in Case C‑230/97 Awoyemi [1998] ECR I‑6781, paragraphs 41 and 43; Case C‑246/00 Commission v Netherlands [2003] ECR I‑7485, paragraphs 60 and 61; and Kapper , paragraph 45; orders of 6 April 2006 in Case C‑227/05 Halbritter [2006] ECR I‑0049, and of 28 September 2006 in Case C‑340/05 Kremer [2006] ECR I‑0098). | 37 As all the other pleas advanced by the appellant have been rejected, the plea concerning costs must, by virtue of that provision, be rejected as inadmissible (see Case C-396/93 P Henrichs v Commission [1995] ECR I-2611, paragraphs 65 and 66, and the order in Case C-140/96 P Dimitriadis v Court of Auditors [1997] ECR I-5635, paragraph 56). |
49 The rest of the case-law referred to by KCH is not decisive. In most of the cases referred to, the penalty is examined in the light of the principle of proportionality rather than the principle `nulla poena sine culpa' (cases cited above, Thyssen v Commission, paragraphs 18 to 22; Schumacher, paragraphs 25 to 31; Cereol Italia, paragraphs 13 to 27; National Farmers' Union and Others, paragraphs 49 to 55; and Molkereigenossenschaft Wiedergeltingen, paragraphs 33 to 45). As for the judgment in Estel v Commission, in paragraphs 38 to 43 of which the Court held that a steel company penalised by the Commission for having exceeded the production quota imposed on it had committed an error which was not excusable and that, accordingly, the Commission had not breached the principle `nulla poena sine culpa', that judgment was delivered in an area far removed from agricultural regulations and without the Court ruling explicitly on whether the penalty in question was of a criminal nature or not. | 42 IT ALSO FOLLOWS FROM THE FACTS THAT ESTEL COULD HAVE AVOIDED EXCEEDING ITS QUOTAS AND BEING FINED IN CONSEQUENCE , SINCE IT WAS STILL IN A POSITION TO ADAPT ITS PRODUCTION PROGRAMME EVEN ON THE SUPPOSITION THAT IT BECAME COGNIZANT OF THE COMMISSION ' S POSITION ONLY AS A RESULT OF THE LATTER ' S LETTER TO EUROFER DATED 10 NOVEMBER 1981 . | 43. As a preliminary point, it should be noted that the conditions applicable to the supply of medicinal products to the public are not harmonised under European Union law as it currently stands. Accordingly, Member States may impose conditions for supplying medicinal products to the public within the limits laid down in the FEU Treaty (see recital 21 in the preamble to Directive 2011/62/EU of the European Parliament and of the Council of 8 June 2011 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use, as regards the prevention of the entry into the legal supply chain of falsified medicinal products (OJ 2011 L 174, p. 74)). Consequently, the regime applicable to persons entrusted with the retail supply of medicinal products varies from one Member State to another (Case C-531/06 Commission v Italy [2009] ECR I-4103, paragraph 38). |
73. Although regulations imposing anti-dumping duties are legislative in nature and scope, in that they apply to all economic operators, they may nevertheless be of individual concern not only to Community producers, as complainants ( Fediol v Commission , paragraphs 27 to 30), but also, in certain circumstances, to the producers and exporters of the product in question who are alleged to be dumping, and, in certain circumstances, to importers of that product (Joined Cases C-133/87 and C-150/87 Nashua Corporation and Others v Commission and Council [1990] ECR I-719, paragraphs 14 to 20). | 15 The same is true of those importers whose resale prices were taken into account for the construction of export prices and who are consequently concerned by the findings relating to the existence of dumping ( see judgments of 29 March 1979 in Case 118/77 ISO (( 1979 )) ECR 1277, paragraph 15, and of 21 February 1984 Allied Corporation I, cited above, paragraph 15 ). | 50. It follows from settled case-law that the measures prohibited by Article 63(1) TFEU, as restrictions on the movement of capital, include those which are such as to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (Case C‑370/05 Festersen [2007] ECR I‑1129, paragraph 24, and Case C‑101/05 A [2007] ECR I‑11531, paragraph 40). |
79. As to the remainder, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes in primary or secondary legislation (see, inter alia, Case C-323/01 Commission v Italy [2002] ECR I-4711, paragraph 8, and Case C-23/05 Commission v Luxembourg [2005] ECR I-9535, paragraph 9). | 9. By contrast, as regards the fields to which the Directive applies with the exception of that of doctors in training, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-323/01 Commission v Italy [2002] ECR I‑4711, paragraph 8, and Case C-322/00 Commission v Netherlands [2003] ECR I-11267, paragraph 50). | 37. Any provision of a national legal system and any legislative, administrative or judicial practice that might impair the effectiveness of EU law by withholding from the national court with jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions that might prevent EU rules from having full force and effect are incompatible with those requirements, which are the very essence of EU law (see Simmenthal , EU:C:1978:49, paragraph 22; Factortame and Others , C‑213/89, EU:C:1990:257, paragraph 20; and Åkerberg Fransson , EU:C:2013:105, paragraph 46 and the case-law cited). This would be the case in the event of a conflict between a provision of EU law and a national law, if the solution of the conflict were to be reserved to an authority with a discretion of its own, other than the court called upon to apply EU law, even if such an impediment to the full effectiveness of EU law were only temporary (see Simmenthal , EU:C:1978:49, paragraph 23, and Melki and Abdeli , EU:C:2010:363, paragraph 44). |
50
Accordingly, the procedure is necessarily vitiated, regardless of any possible detrimental consequences for the appellants that could result from that infringement (see, to that effect, judgments of 6 November 2012, Commission v Éditions Odile Jacob, C‑553/10 P and C‑554/10 P, EU:C:2012:682, paragraphs 46 to 52, and of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 36). | 36
As regards the claims alleging infringement of essential procedural requirements and of Regulation No 1 and Article 3 TEU and Article 41(4) of the Charter, it is clear from the case-law of the Court of Justice, referred to by the General Court in paragraph 115 of the judgment under appeal, that the use of the language laid down in Article 3 of Regulation No 1 does not constitute an essential procedural requirement, within the meaning of Article 263 TFEU, the infringement of which necessarily affects the validity of any document addressed to a person in another language (see, to that effect, judgment of 15 July 1970 in ACF Chemiefarma v Commission, 41/69, EU:C:1970:71, paragraphs 47 to 52). According to that case-law, where an institution sends a person within the jurisdiction of a Member State a document which is not drawn up in the language of that State, such a process vitiates the procedure only if it gives rise to harmful consequences for that person in the course of the administrative procedure. | 46. 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 (Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 80, and Spain v Council , paragraph 98). |
29
In this connection, the Court has already held that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of his since the effectiveness of citizenship of the Union would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus denying him the genuine enjoyment of the substance of the rights conferred by virtue of his status (see, to this effect, judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraphs 43 and 44; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraphs 66 and 67; of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 71; of 8 May 2013, Ymeraga and Others, C‑87/12, EU:C:2013:291, paragraph 36; and of 10 October 2013, Alokpa and Moudoulou, C‑86/12, EU:C:2013:645, paragraph 32). | 66. It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole. | 66. Similarly, although Article 8(2) of Directive 91/439 does not permit the Member State of normal residence to refuse to recognise a driving licence issued by another Member State just because the holder has earlier had a previous licence withdrawn in the Member State of normal residence, that provision does nevertheless allow that State, as recalled in paragraphs 58 and 59 above, subject to observance of the principle of territoriality of criminal and police laws, to restrict, suspend, withdraw or cancel the new licence if that is warranted, according to the law of the host Member State, by the holder’s conduct after the issue of the new licence. |
73. It must, however, be held that the situation at issue in the main proceedings is not covered by that rule against overlapping or, moreover, by that laid down by Article 76 of Regulation No 1408/71 since it does not concern a hypothetical overlapping of entitlements laid down by the legislation of the Member State of residence of the child concerned and of those resulting from the legislation of the Member State of employment designated as the competent State under that regulation (see, to that effect, Bosmann , paragraph 24, and Schwemmer , paragraphs 43 and 51) | 51. On those points, it should however be remembered that Article 10 of Regulation No 574/72, as both its heading and its wording demonstrate, is intended only to resolve cases of overlapping of rights to family benefits where they are simultaneously due, irrespective of conditions of insurance or employment, in both the relevant child’s Member State of residence and, in application either of the national legislation of another Member State or of Article 73 of Regulation No 1408/71, in the Member State of employment (see, to that effect, Bosmann , paragraph 24). | 66. In that connection, it should be recalled that the direct application of a regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law, strict compliance with that obligation being an indispensable condition for the simultaneous and uniform application of regulations throughout the European Union (see, to that effect, Variola , paragraph 10). Accordingly, Regulation No 110/2008 must apply independently of the rules transposing Directive 89/104 into the national legal order.
Costs |
40. In that context, the Court has also held that any failure by the supplier of goods to meet the requirement to state when taxable activity commences cannot call into question the right of deduction to which the recipient of goods supplied is entitled in respect of the VAT paid for those goods. Accordingly, that recipient has a right to deduct even if the supplier of the goods is a taxable person who is not registered for VAT, where the invoices relating to the services supplied contain all of the information required by Article 22(3)(b) of the Sixth Directive, in particular the information necessary to identify the person who drew up those invoices and to ascertain the nature of the goods provided (see, to that effect, judgments in Dankowski , C‑438/09, EU:C:2010:818, paragraphs 33, 36 and 38, and in Tóth , C‑324/11, EU:C:2012:549, paragraph 32). | 38. It follows from the foregoing that Articles 18(1)(a) and 22(3)(b) of the Sixth Directive must be interpreted as meaning that a taxable person has the right to deduct VAT paid in respect of services supplied by another taxable person who is not registered for VAT, where the relevant invoices contain all the information required by Article 22(3)(b), in particular the information needed to identify the person who drew up those invoices and to ascertain the nature of the services provided.
The second part of the questions referred for a preliminary ruling | 63. In that context, the Court has already had the opportunity to interpret that provision as meaning that it is a matter for national courts, when they find that contract terms are unfair, to draw all the consequences that follow under national law, in order that the consumer will not be bound by those terms (see Asturcom Telecomunicaciones , paragraph 58; order in Case C-76/10 Pohotovosť [2010] ECR I-11557, paragraph 62; and Pereničová and Perenič , paragraph 30). As has been pointed out in paragraph 40 of this judgment, that is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them. |
61. As the Belgian Government points out, that case-law concerns the interpretation of provisions of the Protocol which exempt officials and other servants of the Communities from national taxes on salaries, wages and emoluments paid to them. That exemption relates specifically to servants of the Communities and is limited to national taxes which could be charged on the income arising from performance of their functions, which is subject to Community tax. By contrast, in the present case there is no tax at the Community level and, in addition, only the provisions of the Protocol that exempt the Communities themselves from all direct taxes are in issue (see, to that effect, AGF Belgium , paragraph 14). | 14. First, as the Commission points out, that judgment concerned the interpretation of provisions of the Protocol which exempt officials and other servants of the Communities from national taxes on salaries, wages and emoluments paid to them. That exemption relates specifically to servants of the Communities and is limited to national taxes which could be charged on the income arising from performance of their functions, which is subject to Community tax. In the present case the provisions of the Protocol in issue are those which exempt the Communities themselves from all direct taxes and provide, furthermore, for the amount of indirect taxes or sales taxes included in purchases made by them in certain circumstances to be remitted or refunded. | 51. There is such distortion where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect (Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 37, and Case C‑413/08 P Lafarge v Commission [2010] ECR I‑5361, paragraph 17). |
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). | 7 IN THAT REGARD IT MUST BE EMPHASIZED THAT, SINCE IT DEROGATES FROM THE FUNDAMENTAL RULE OF FREEDOM OF ESTABLISHMENT, ARTICLE 55 OF THE TREATY MUST BE INTERPRETED IN A MANNER WHICH LIMITS ITS SCOPE TO WHAT IS STRICTLY NECESSARY IN ORDER TO SAFEGUARD THE INTERESTS WHICH IT ALLOWS THE MEMBER STATES TO PROTECT . | 146. Consequently, in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations whose performance may still be required by the non-member country which is party to it (see, to that effect, inter alia, Joined Cases C-364/95 and C-365/95 T. Port [1998] ECR I-1023, paragraph 60). |
22
Furthermore, according to settled case-law of the Court, VAT exemptions are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, inter alia, judgments of 26 June 1990, Velker International Oil Company, C‑185/89, EU:C:1990:262, paragraph 19; 16 September 2004, Cimber Air, C‑382/02, EU:C:2004:534, paragraph 25; 14 September 2006, Elmeka, C‑181/04 to C‑183/04, EU:C:2006:563, paragraphs 15 and 20, and 19 July 2012, A, C‑33/11, EU:C:2012:482, paragraph 49). | 15. Furthermore, interpreting Article 15(4)(a) of the Sixth Directive as referring only to vessels used on the high seas is consistent with the case-law of the Court of Justice, which calls for VAT exemptions to be interpreted strictly, since they constitute exceptions to the general principle that turnover tax is to be levied on each service supplied for consideration by a taxable person (see in particular Case C-185/89 Velker International Oil Company [1990] ECR I-2561, paragraph 19, and Case C-382/02 Cimber Air [2004] ECR I-8379, paragraph 25). | 21 As the Court held in Case C-57/96 Meints v Minister van Landbouw, Natuurbeheer en Visserij [1997] ECR I-6689, paragraph 50, that argument disregards the wording of Regulation No 1612/68. It is expressly stated in the fourth recital in the preamble to that regulation that the right of free 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'. The Court deduced from that and ruled, in Meints, that a Member State may not make the grant of a social advantage within the meaning of Article 7 of the Regulation dependent on the condition that the beneficiaries be resident within its territory. |
46. The transfer of the place of effective management of a company of one Member State to another Member State cannot mean that the Member State of origin has to abandon its right to tax a capital gain which arose within the ambit of its powers of taxation before the transfer (see, to that effect, Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraph 59). The Court has thus held that, in accordance with the principle of fiscal territoriality linked to a temporal component, namely the taxpayer’s residence for tax purposes within national territory during the period in which the capital gains arise, a Member State is entitled to charge tax on those gains at the time when the taxpayer leaves the country (see N , paragraph 46). Such a measure is intended to prevent situations capable of jeopardising the right of the Member State of origin to exercise its powers of taxation in relation to activities carried on in its territory, and may therefore be justified on grounds connected with the preservation of the allocation of powers of taxation between the Member States (see Marks & Spencer , paragraph 46; Oy AA , paragraph 54; and Case C‑311/08 SGI [2010] ECR I‑487, paragraph 60). | 59. It must be held in that regard, first, that to require the Member State in which the company making the distribution is resident to ensure that profits distributed to a non-resident shareholder are not liable to a series of charges to tax or to economic double taxation, either by exempting those profits from tax at the level of the company making the distribution or by granting the shareholder a tax advantage equal to the tax paid on those profits by the company making the distribution, would mean in point of fact that that State would be obliged to abandon its right to tax a profit generated through an economic activity undertaken on its territory. | 30. As a preliminary point, it should be recalled that because certain activities may present a specific risk of exposure to hazardous agents, processes or working conditions for a pregnant worker or for one who is breastfeeding or who has recently given birth, such as those listed in Annex I to Directive 92/85, endangering safety or health, the European Union legislature, by adopting Directive 92/85, introduced the requirement to evaluate and communicate risks and a prohibition on the exercise of certain activities (see, to that effect, Case C‑203/03 Commission v Austria [2005] ECR I‑935, paragraph 44). |
100. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the EU (see, to that effect, Musique Diffusion française and Others v Commission , paragraph 129, and Dansk Rørindustri and Others v Commission , paragraph 242). | 129 IN FIXING THE AMOUNT OF THE FINES REGARD MUST BE HAD TO THE DURATION OF THE INFRINGEMENTS ESTABLISHED AND TO ALL THE FACTORS CAPABLE OF AFFECTING THE ASSESSMENT OF THE GRAVITY OF THE INFRINGEMENTS , SUCH AS THE CONDUCT OF EACH OF THE UNDERTAKINGS , THE ROLE PLAYED BY EACH OF THEM IN THE ESTABLISHMENT OF THE CONCERTED PRACTICES , THE PROFIT WHICH THEY WERE ABLE TO DERIVE FROM THOSE PRACTICES , THEIR SIZE , THE VALUE OF THE GOODS CONCERNED AND THE THREAT THAT INFRINGEMENTS OF THAT TYPE POSE TO THE OBJECTIVES OF THE COMMUNITY .
| 22
According to settled case-law, the principle of equal treatment and the obligation of transparency entail, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority (see, to that effect, judgments of 24 November 2005 in ATI EAC e Viaggi di Maio and Others, C‑331/04, EU:C:2005:718, paragraph 22, and 24 May 2016 in MT Højgaard and Züblin, C‑396/14, EU:C:2016:347, paragraph 37 and the case-law cited). |
80. As a preliminary point, it is appropriate to observe, first, that the purpose of Article 2 of the Directive is to define the types of signs of which a trade mark may consist (Case C-273/00 Sieckmann [2002] ECR I-11737, paragraph 43), irrespective of the goods or services for which protection might be sought (see to that effect Sieckmann , paragraphs 43 to 55, Libertel , paragraphs 22 to 42, and Case C-283/01 Shield Mark [2003] ECR I-0000, paragraphs 34 to 41). It provides that a trade mark may consist inter alia of " words" and " letters" , provided that they are capable of distinguishing the goods or services of one undertaking from those of other undertakings. | 28. Furthermore, as the Court has held, a graphic representation within the meaning of Article 2 of the Directive must enable the sign to be represented visually, particularly by means of images, lines or characters, so that it can be precisely identified (Case C-273/00 Sieckmann [2002] ECR I-11737, paragraph 46). | 34. It is necessary to point out, in this regard, that the regulation, as is apparent from recital 2 in the preamble thereto, has, admittedly, the objective of improving and expediting the transmission of judicial documents between Member States (see, in this sense, Case C-14/07 Weiss und Partner [2008] ECR I-3367, paragraph 46, and Roda Golf & Beach Resort , paragraph 54). |
32 Those conditions are described in detail in paragraphs 44 to 51 of the same judgment. First of all, under the general rule, stated in Articles 1 and 2 of Decision 89/688, octroi de mer is to apply in principle to all products whether imported into or produced in the French overseas departments. | 44 In the first place, it must be borne in mind that Decision 89/688 was adopted by the Council on the basis of Articles 227(2) and 235 of the Treaty, following the Poseidom decision. The programme provided for in the Poseidom decision steps up Community support for the French overseas departments with a view to promoting their economic and social development, since they suffer from a serious structural lack of development. | 28
Although Article 7 of the Charter cannot be interpreted as depriving the Member States of the margin of appreciation available to them when examining applications for family reunification, the provisions of Directive 2003/86 must nonetheless, in the course of such an examination, be interpreted and applied in the light of — inter alia — Article 7 of the Charter, as is moreover apparent from recital 2 in the preamble to that directive, which requires the Member States to examine applications for reunification with a view to promoting family life (see, to that effect, judgment in O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraphs 79 and 80). |
18 In order to determine whether a body is a court or tribunal for the purposes of that provision, 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 procedure before it is inter partes, whether it applies rules of law, and whether it is independent (Case 61/65 Vaassen (née Göbbels) [1966] ECR 261; Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, paragraph 23, and Joined Cases C-69/96 to C-79/96 Garofalo and Others v Ministero della Sanità [1997] ECR I-5603, paragraph 19). | 19 In order to answer that question, it is necessary to consider the conditions governing the function of the Consiglio di Stato when it acts in the context of that particular procedure, having regard to the criteria which this Court has laid down for interpreting the concept of `court or tribunal' for the purposes of Article 177 of the Treaty, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether procedure before it is inter partes, whether it applies rules of law, and whether it is independent (see, most recently, Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961, paragraph 23). | 45. It should be remembered, as a preliminary point, that, according to the Court’s settled case-law, the choice of legal basis for a Community measure must rest on objective factors which are amenable to judicial review, including in particular the aim and the content of the measure (see Case C‑178/03 Commission v Parliament and Council , paragraph 41, and Case C‑155/07 Parliament v Council [2008] ECR I‑0000, paragraph 34). |
57. Article 49 TFEU requires the abolition of restrictions on the freedom of establishment. Therefore, even though, according to their wording, the Treaty provisions on freedom of establishment are aimed at ensuring that foreign nationals are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation (see Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 31, and Case C‑371/10 National Grid Indus [2011] ECR I‑12273, paragraph 35). | 31. Even though, according to their wording, the provisions concerning freedom of establishment are directed to ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated under its legislation (see, in particular, ICI , cited above, paragraph 21). | 22. On this point, it must be observed that, contrary to the submissions of the German and Netherlands Governments, the situation of a national of a Member State who, like Mr Schempp, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation (see, to that effect, Case C‑200/02 Zhu and Chen [2004] ECR I‑0000, paragraph 19). |
41. It is also clear from the case-law that it is the documents referred to in Article 3(5) of Regulation No 3665/87, namely, the export declaration or any other document used during export, which are capable of forming the legal basis of a refund and triggering the system of checks of the request for refund which may lead to the application of a sanction in accordance with Article 11(1) (see, to that effect, Case C-385/03 Käserei Champignon Hofmeister , cited above, paragraphs 23, 29 and 36). | 23. As regards the interpretation of Article 3 of that regulation, it is appropriate to note, as the Advocate General stated in paragraph 38 of her Opinion, that it does not ne cessarily follow from that article that the amount of the refund requested is to be calculated from the information provided in the export declaration alone. More particularly, Article 3(5) does not specify the title of the document which must be filed to qualify for an export refund. It refers only to ‘the document used for export’. In addition, the second subparagraph of Article 3(5) provides for the situation in which ‘the document mentioned in this paragraph is the export declaration’. It follows that the document which must be submitted in order to obtain a refund is not necessarily the export declaration. | 49. The unlimited jurisdiction conferred on the Courts of the European Union by Article 91(1) of the Staff Regulations entrusts the Courts of the Union with the task of providing a complete solution to the disputes brought before it ( Weißenfels v Parliament , paragraph 67, and Case C‑197/09 RX‑II M v EMEA [2009] ECR I‑0000, paragraph 56). |
62. It should be noted at the outset that the objectives of safeguarding the balanced allocation of the power to impose taxes between Member States and the prevention of tax avoidance are linked. Conduct involving the creation of wholly artificial arrangements which do not reflect economic reality, with a view to escaping the tax normally due on the profits generated by activities carried out on national territory is such as to undermine the right of the Member States to exercise their tax jurisdiction in relation to those activities and jeopardise a balanced allocation between Member States of the power to impose taxes ( Cadbury Schweppes and Cadbury Schweppes Overseas , paragraphs 55 and 56, and Test Claimants in the Thin Cap Group Litigation , paragraphs 74 and 75). | 74. In order for a restriction on the freedom of establishment to be justified on the ground of prevention of abusive practices, the specific objective of such a restriction must be to prevent conduct involving the creation of wholly artificial arrangements which do not reflect economic reality, with a view to escaping the tax normally due on the profits generated by activities carried out on national territory ( Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 55). | 48. It follows, in particular, that Regulation No 2252/2004 does not require a Member State to guarantee in its legislation that biometric data will not be used or stored by that State for purposes other than those mentioned in Article 4(3) of that regulation (see, to that effect, judgment in Schwarz , C‑291/12, EU:C:2013:670, paragraph 61). |
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