sent0
stringlengths 36
32.8k
⌀ | sent1
stringlengths 8
29.9k
| hardneg
stringlengths 8
32.8k
|
|---|---|---|
42. Even if the system of penalties in the case in the main proceedings is a system of strict liability, it must be recalled that, according to the case-law of the Court, such a system is not, in itself, disproportionate to the objectives pursued, if that system is such as to encourage the persons concerned to comply with the provisions of a regulation and where the objective pursued is a matter of public interest which may justify the introduction of such a system (see judgment in Urbán , EU:C:2012:64, paragraph 48 and the case-law cited).
|
48. According to the Court, the imposition of a system of strict liability is not disproportionate in relation to the objectives pursued if that system is such as to encourage the persons concerned to comply with the provisions of a regulation and where the objective pursued is a matter of public interest which may justify the introduction of such a system (see, to that effect, Hansen , paragraph 19).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
19
The Court has already ruled that legislation of a Member State which makes the application of an inheritance tax advantage, such as a tax-free allowance, dependent on the place of residence of the deceased person or the heir, or on the location of the assets contained in the estate, constitutes a restriction on the free movement of capital prohibited by Article 63(1) TFEU when it has the result that inheritances involving non-residents or containing assets located in another Member State are subject to a higher tax liability than that imposed on inheritances involving only residents or containing only assets located in the Member State of taxation, and which, therefore, has the effect of reducing the value of the inheritance (see, to that effect, judgments of 17 January 2008 in Jäger, C‑256/06, EU:C:2008:20, paragraphs 30 to 35; of 17 October 2013 in Welte, C‑181/12, EU:C:2013:662, paragraphs 23 to 26; of 3 September 2014 in Commission v Spain, C‑127/12, not published, EU:C:2014:2130, paragraphs 57 to 60; and of 4 September 2014 in Commission v Germany, C‑211/13, not published, EU:C:2014:2148, paragraphs 40 to 43).
|
43. Force est de constater que ladite législation, qui fait dépendre l’application d’un abattement sur la base imposable des biens transmis du lieu de résidence du défunt, ou du donateur et du bénéficiaire, aux dates respectivement susmentionnées, aboutit à ce que les successions ou les donations entre non-résidents comprenant de tels biens soient soumises à une charge fiscale plus lourde que celle qui grève celles-ci lorsque l’une au moins des parties impliquées avait sa résidence sur le territoire allemand à ces mêmes dates et, partant, a pour effet de diminuer la valeur de la succession ou de la donation (voir arrêts Mattner, EU:C:2010:216, points 27 et 28, ainsi que Welte, EU:C:2013:662, point 25).
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
25. Article 2(4) of the Directive thus authorises national measures relating to access to employment which give a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men. The aim of that provision is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and, thus, in accordance with Article 141(4) EC, to prevent or compensate for disadvantages in the professional career of the persons concerned (see, to that effect, Case C-450/93 Kalanke [1995] ECR I-3051, paragraph 19, and Case C-407/98 Abrahamsson and Anderson [2000] ECR I-5539, paragraph 48).
|
48 The clear aim of such criteria is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and, thus, in accordance with Article 141(4) EC, to prevent or compensate for disadvantages in the professional career of persons belonging to the under-represented sex.
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
33 As regards the limitation in time of the effects of Article 119 of the Treaty, it should be recalled first that, in Case 43/75 Defrenne v Sabena [1976] ECR 455 (`Defrenne II'), paragraph 40, the Court held that the principle of equal pay contained in Article 119 may be relied upon before the national courts and that those courts have a duty to ensure protection of the rights which that provision vests in individuals. However, in paragraphs 74 and 75 of the same judgment, the Court made it clear that, by virtue of overriding considerations of legal certainty affecting all the interests involved, both public and private, the direct effect of Article 119 could not be relied on in order to support claims relating to pay periods prior to the date of that judgment, namely 8 April 1976, except as regards those workers who had already brought legal proceedings or made an equivalent claim.
|
75 THEREFORE , THE DIRECT EFFECT OF ARTICLE 119 CANNOT BE RELIED ON IN ORDER TO SUPPORT CLAIMS CONCERNING PAY PERIODS PRIOR TO THE DATE OF THIS JUDGMENT , EXCEPT AS REGARDS THOSE WORKERS WHO HAVE ALREADY BROUGHT LEGAL PROCEEDINGS OR MADE AN EQUIVALENT CLAIM .
|
22. La République française reconnaît que, à l’expiration du délai prévu dans l’avis motivé, le 22 mai 2010, elle n’avait pas adopté les mesures nécessaires pour transposer les dispositions de la directive 2003/96. Cette dernière aurait été transposée par la loi n° 2010-1488.
|
44. Where an application is made seeking access to personal data, within the meaning of Article 2(a) of Regulation No 45/2001, the provisions of that regulation, and in particular Article 8(b) thereof, become applicable in their entirety (see the judgments in Commission v Bavarian Lager , C‑28/08 P, EU:C:2010:378, paragraph 63, and Strack v Commission , C‑127/13 P, EU:C:2014:2250, paragraph 101).
|
63. It follows that, where a request based on Regulation No 1049/2001 seeks to obtain access to documents including personal data, the provisions of Regulation No 45/2001 become applicable in their entirety, including Articles 8 and 18 thereof.
|
23. In order to reply to the question as reformulated, it must be observed that it is clear from Article 13B(f) of the Sixth Directive that gambling is in principle to be exempted from VAT but that the Member States retain the power to lay down the conditions and limitations of that exemption ( Fischer , paragraph 25).
|
16. Even if it were to be accepted that the tax regime at issue in the main proceedings has restrictive effects on the free movement of capital, such effects would have to be seen as an unavoidable consequence of any restriction on freedom of establishment and they do not justify an examination of that regime in the light of Article 56 EC (see, to that effect, Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I-7995, paragraph 33; Case C-452/04 Fidium Finanz [2006] ECR I-9521, paragraphs 48 and 49; and Case C-524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I-2107, paragraph 34).
|
34. If, as submitted by the claimants in the main proceedings, it were to be accepted that that legislation has restrictive effects on the freedom to provide services and the free movement of capital, such effects must be seen as an unavoidable consequence of any restriction on freedom of establishment and do not justify an independent examination of that legislation in the light of Articles 49 EC and 56 EC (see, to that effect, Case C-36/02 Omega [2004] ECR I‑9609, paragraph 27; Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 33; and Case C-452/04 Fidium Finanz [2006] ECR I-0000, paragraphs 48 and 49).
|
S’agissant du grief tiré de l’atteinte au droit de propriété et de la violation du principe de proportionnalité, il importe
de rappeler que le droit de propriété n’est pas une prérogative absolue et que son exercice peut faire l’objet de restrictions
justifiées par des objectifs d’intérêt général poursuivis par l’Union (voir arrêt du 16 novembre 2011, Bank Melli Iran/Conseil,
C‑548/09 P, EU:C:2011:735, point 113).
|
63. However, it is settled law that Article 43 EC precludes any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to hinder or to render less attractive the exercise by EU citizens of the freedom of establishment that is guaranteed by the Treaty (see, inter alia, Case C‑299/02 Commission v Netherlands [2004] ECR I‑9761, paragraph 15, and Case C‑140/03 Commission v Greece [2005] ECR I‑3177, paragraph 27).
|
27. According to settled case-law, Article 43 EC precludes any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Community nationals of the freedom of establishment that is guaranteed by the Treaty (see, in particular, Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32, and Case C‑299/02 Commission v Netherlands [2004] ECR I‑0000, paragraph 15).
|
49. As regards, last, the third justification, relating to the risk of tax avoidance, it must be accepted that the possibility of transferring the losses incurred by a non-resident company to a resident company entails the risk that within a group of companies losses will be transferred to companies established in the Member States which apply the highest rates of taxation and in which the tax value of the losses is therefore the highest.
|
13. The concept of ‘genuine use’ within the meaning of Article 12(1) of the directive must be understood to denote use that is not merely token, serving solely to preserve the rights conferred by the mark. Such use must be actual use, consistent with the essential function of a trade mark, which is to guarantee the identity of the origin of goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin (Case C‑40/01 Ansul [2003] ECR I‑2439, paragraphs 35 and 36).
|
36. "Genuine use" must therefore be understood to denote use that is not merely token, serving solely to preserve the rights conferred by the mark. Such use must be consistent with the essential function of a trade mark, which is to guarantee the identity of the origin of goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin.
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
48. However, when giving a preliminary ruling the Court may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, inter alia, Case C-79/01 Payroll and Others [2002] ECR I-8923, paragraph 29).
|
29 Although, as regards the division of jurisdiction between the Community judicature and national courts, it is in principle for the national court to determine whether those conditions are fulfilled in the case pending before it, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, for example, Haim, cited above, paragraph 58).
|
49 In the first place, it should be remembered that the rule in Article 45(1), on which Mr Lafuente Nieto seeks to rely, concerns the acquisition, retention or recovery of the right to benefits and not the calculation of the amount of benefits, the rules for which are set out in Article 46 et seq.
|
31. Therefore, the fact that the Commission set out in detail the complaints that it had already made in more general terms in the reasoned opinion did not alter the subject-matter of the alleged infringement, and thus had no effect on the scope of the proceedings (see, to that effect, Case C‑185/00 Commission v Finland [2003] ECR I‑14189, paragraphs 84 to 87; Case C-171/08 Commission v Portugal , paragraph 29; and Case C‑543/08 Commission v Portugal [2010] ECR I‑0000, paragraph 23).
|
84. Admittedly, the Commission mentioned the consequences for the Swedish market in mineral oils of the Republic of Finland ' s alleged failure to fulfil its obligations for the first time is its application. However, that fact, which is intended to demonstrate the inadequacy of the monitoring system put in place by Finnish law does not alter either the definition or the basis of the alleged failure to fulfil obligations.
|
36 While it is true that the WTO agreements, as the Portuguese Government observes, differ significantly from the provisions of GATT 1947, in particular by reason of the strengthening of the system of safeguards and the mechanism for resolving disputes, the system resulting from those agreements nevertheless accords considerable importance to negotiation between the parties.
|
44. Or, les conditions d’application établies à ladite disposition sont exhaustives et, partant, une législation nationale ne peut prévoir, sur le fondement de cette même disposition, que la base d’imposition est la valeur normale de l’opération dans des cas autres que ceux qui y sont énumérés (arrêts du 26 avril 2012, Balkan and Sea Properties et Provadinvest, C‑621/10 et C‑129/11, non encore publié au Recueil, point 51, ainsi que Orfey Balgaria, précité, point 47).
|
51. It follows from the foregoing that the conditions of application laid down in Article 80(1) of the VAT Directive are exhaustive and, consequently, that national legislation cannot on the basis of that provision provide that the taxable amount is to be the open market value of the transaction in cases other than those listed in that provision, in particular where the supplier or acquirer has a full right of deduction of VAT.
|
À cet égard, il importe de relever que la Cour a jugé qu’il ne saurait être exigé de la Commission que, après avoir établi que la société mère doit être tenue pour responsable de l’infraction commise par sa filiale, elle apporte la démonstration que chaque filiale composant le groupe ne détermine pas de manière autonome son comportement sur le marché. L’imputation d’une infraction commise par une filiale à la société mère et l’interdiction d’infliger une amende excédant 10 % du chiffre d’affaires de l’entreprise concernée constituent deux questions distinctes répondant à des finalités différentes. Le cas échéant, c’est à la société qui considère que le chiffre d’affaires consolidé ne reflète pas la réalité économique qu’il appartient de présenter les éléments de nature à réfuter l’existence d’un pouvoir de contrôle de la société mère (arrêt du 26 novembre 2013, Groupe Gascogne/Commission, C‑58/12 P, EU:C:2013:770, point 57).
|
70. In that connection it is important to bear in mind that a restrictive measure can be considered to be suitable for securing the attainment of the objective pursued only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner (see, to that effect, Case C‑169/07 Hartlauer [2009] ECR I‑1721, paragraph 55; Joined Cases C‑171/07 and C-172/07 Apothekerkammer des Saarlandes and Others [2009] ECR I-4171, paragraph 42; and Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I-7633, paragraphs 59 to 61).
|
60. In the present case, it is thus necessary to examine in particular whether the restriction of the provision of games of chance via the internet, imposed by the national legislation at issue in the main proceedings, is suitable for achieving the objective or objectives invoked by the Member State concerned, and whether it does not go beyond what is necessary in order to achieve those objectives. In any event, those restrictions must be applied without discrimination (see, to that effect, Placanica and Others , paragraph 49).
|
47 Furthermore, it must be regarded as undisputed that, as the Advocate General rightly pointed out in paragraphs 136 to 138 of his Opinion with respect to the clause on the ownership and control of airlines, the amendments made to the agreement in its entirety in 1995 affect the scope of the provisions, such as that clause, which were not formally modified by the amendments or were modified only to a limited extent.
|
64. Inasmuch as a citizen of the Union must be granted, in all Member States, the same treatment in law as that accorded to nationals of those Member States who find themselves in the same situation, it would be incompatible with the right to freedom of movement were a citizen to receive, in the host Member State, treatment less favourable than that which he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement (see, by analogy, on treatment in the Member State of which the citizen of the Union is a national, Pusa , paragraph 18; Schwarz and Gootjes-Schwarz , paragraph 88; and Case C‑318/05 Commission v Germany [2007] ECR I-6957, paragraph 127).
|
18. In that a citizen of the Union must be granted in all Member States the same treatment in law as that accorded to the nationals of those Member States who find themselves in the same situation, it would be incompatible with the right of freedom of movement were a citizen, in the Member State of which he is a national, to receive treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement ( D’Hoop , paragraph 30).
|
11 THE FACT THAT THE THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF THE REGULATION PERMITS THE COMPETENT AUTHORITIES TO REQUIRE OTHER DOCUMENTS WHEN THEY CONSIDER , IN VIEW OF THE PARTICULAR CIRCUMSTANCES IN THE COUNTRY OF DESTINATION , THAT PROOF OF COMPLETION OF CUSTOMS FORMALITIES IS INSUFFICIENT SHOWS THAT SUCH PROOF AMOUNTS ONLY TO REBUTTABLE EVIDENCE THAT THE OBJECTIVE OF THE VARIABLE EXPORT REFUNDS HAS IN FACT BEEN ATTAINED .
|
37. That said, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. Consequently, even if, formally, the referring court has referred only to Directives 2003/9, 2004/83 and 2005/85, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (see, to that effect, judgments in Fuß , C‑243/09, EU:C:2010:609, paragraphs 39 and 40, and Hadj Ahmed , C‑45/12, EU:C:2013:390, paragraph 42).
|
39. It must be recalled in this regard that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of European Union law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (see, to that effect, inter alia, Case C‑45/06 Campina [2007] ECR I‑2089, paragraphs 30 and 31; Joined Cases C‑329/06 and C‑343/06 Wiedemann and Funk [2008] ECR I‑4635, paragraph 45; and Case C‑66/09 Kirin Amgen [2010] ECR I‑0000, paragraph 27).
|
20IT IS CLEAR FROM THE RULES COMMON TO THE LAWS OF THE MEMBER STATES THAT THE SALE OF GOODS ON INSTALMENT CREDIT TERMS IS TO BE UNDERSTOOD AS A TRANSACTION IN WHICH THE PRICE IS DISCHARGED BY WAY OF SEVERAL PAYMENTS OR WHICH IS LINKED TO A FINANCING CONTRACT .
|
65. According to settled case-law, a measure of general application such as a regulation can be of individual concern to natural and legal persons only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (see, inter alia , Case C-451/98 Antillean Rice Mills v Council [2001] ECR I-8949, paragraph 49; Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 36, and Case C-312/00 P Commission v Camar and Tico [2002] ECR I-11355, paragraph 73).
|
73. According to the Court's consistent case-law a measure of general application such as a regulation can be of individual concern to natural and legal persons only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (see, particularly, Case C-451/98 Antillean Rice Mills v Council [2001] ECR I-8949, paragraph 49, and Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 36).
|
6 The Greek Government contends that the complaints formulated in the summary report are unfounded.
|
88. Thus, it has been held that EU law does not prohibit a Member State from preventing the imposition of a series of charges to tax on dividends received by a resident company by applying rules which exempt those dividends from tax when they are paid by a resident company, while preventing those dividends from being liable to a series of charges to tax through an imputation method when they are paid by a non-resident company, provided, however, that the tax rate applied to foreign-sourced dividends is not higher than the rate applied to nationally-sourced dividends and that the tax credit is at least equal to the amount paid in the State of the company making the distribution, up to the limit of the tax charged in the Member State of the company receiving the dividends (see Test Claimants in the FII Group Litigation , paragraphs 48 and 57; Haribo Lakritzen Hans Riegel and Österreichische Salinen , paragraph 86; and order of 23 April 2008 in Case C‑201/05 Test Claimants in the CFC and Dividend Group Litigation [2008] ECR I‑2875, paragraph 39).
|
48. Thus, Community law does not, in principle, prohibit a Member State from avoiding the imposition of a series of charges to tax on dividends received by a resident company by applying rules which exempt those dividends from tax when they are paid by a resident company, while preventing, through an imputation system, those dividends from being liable to a series of charges to tax when they are paid by a non-resident company.
|
39. First, to accept that such reproductions may be made from an unlawful source would encourage the circulation of counterfeited or pirated works, thus inevitably reducing the volume of sales or of other lawful transactions relating to the protected works, with the result that a normal exploitation of those works would be adversely affected.
|
38. In that regard, the Court has stated that, even if the element common to the marks at issue cannot be regarded as dominating the overall impression, it must be taken into account in the assessment of the similarity of those marks, to the extent that it constitutes in itself the earlier mark and retains an independent distinctive role in the trade mark consisting, inter alia, of that element, for which registration is sought. Where a common element retains an independent distinctive role in the composite sign, the overall impression produced by that sign may lead the public to believe that the goods or services at issue come, at the very least, from companies which are linked economically, in which case a likelihood of confusion must be held to be established (judgment in Medion , C‑120/04, EU:C:2005:594, paragraphs 30 and 36, and order in ecoblue v OHIM and Banco Bilbao Vizcaya Argentaria , C‑23/09 P, EU:C:2010:35, paragraph 45).
|
30. However, beyond the usual case where the average consumer perceives a mark as a whole, and notwithstanding that the overall impression may be dominated by one or more components of a composite mark, it is quite possible that in a particular case an earlier mark used by a third party in a composite sign including the name of the company of the third party still has an independent distinctive role in the composite sign, without necessarily constituting the dominant element.
|
25 The court of the place where the publisher of the defamatory publication is established must therefore have jurisdiction to hear the action for damages for all the harm caused by the unlawful act.
|
90
Next, whilst it is true that recital 5 of Regulation No 384/96 states that the language of the WTO Anti-Dumping Agreement should be brought into EU legislation ‘as far as possible’, that expression must be understood as meaning that, even if the EU legislature intended to take into account the rules of that agreement when adopting Regulation No 384/96, it did not, however, show the intention of transposing each of those rules in that regulation (judgment in Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 52).
|
52. Nor is the finding called in question by the fact that recital 5 of the basic regulation states that the rules of the Anti-Dumping Agreement should be brought into EU legislation ‘as far as possible’. As the Advocate General observed in points 44 and 46 of her Opinion, that expression must be understood as meaning that even if the EU legislature intended to take into account the rules of the Anti-Dumping Agreement when adopting the basic regulation, it did not, however, show the intention of transposing all those rules in that regulation. The conclusion that the purpose of Article 2(7) of the basic regulation is to implement the particular obligations created by Article 2 of the Anti-Dumping Agreement can therefore in no case be based in isolation on the wording of recital 5 of the basic regulation.
|
23 However, as the Court has repeatedly stated, the public policy exception, like all derogations from a fundamental principle of the Treaty, must be interpreted restrictively.
|
51. As regards discrimination as referred to in Article 2(1)(a) and (b) of Directive 2006/54, the refusal to provide maternity leave in the situation outlined by the referring tribunal constitutes direct discrimination on grounds of sex within the meaning of Article 2(1)(a) if the fundamental reason for that refusal applies exclusively to workers of one sex (see, to that effect, Case C‑177/88 Dekker [1990] ECR I‑3941, paragraph 10; Case C‑421/92 Habermann-Beltermann [1994] ECR I‑1657, paragraph 14; and Case C‑506/06 Mayr [2008] ECR I‑1017, paragraph 50).
|
50. It is true that workers of both sexes can be temporarily prevented from carrying out their work on account of the medical treatment they must receive. Nevertheless, the treatment in question in the main proceedings – namely a follicular puncture and the transfer to the woman’s uterus of the ova removed by way of that follicular puncture immediately after their fertilisation – directly affects only women. It follows that the dismissal of a female worker essentially because she is undergoing that important stage of in vitro fertilisation treatment constitutes direct discrimination on grounds of sex.
|
25 By judgment of 5 October 1994 in Case C-280/93 Germany v Council [1994] ECR I-4973, the Court dismissed the action brought by the Federal Republic of Germany for the annulment of Regulation No 404/93.
|
56. That is true all the more so since, in the absence of any precise indications to that effect in Regulation No 6/2002, the European Union legislature cannot be regarded as having intended to limit the assessment of designs to a direct comparison ( PepsiCo v Grupo Promer Mon Graphic , paragraph 57).
|
57. That is true all the more so since, in the absence of any precise indications to that effect in the context of Regulation No 6/2002, the European Union legislature cannot be regarded as having intended to limit the assessment of potential designs to a direct comparison.
|
86. Nevertheless, as the Advocate General indicated in point 158 of her Opinion, the Kingdom of the Netherlands would have needed at least to show why it opted for the ‘three out of six years’ rule, to the exclusion of all other representative elements. It should be pointed out in that regard that the rule is too exclusive. By requiring specific periods of residence in the territory of the Member State concerned, the ‘three out of six years’ rule prioritises an element which is not necessarily the sole element representative of the actual degree of attachment between the party concerned and that Member State.
|
61. Where such a difference in treatment flows from the need to take account of objective requirements relating to the post which the recruitment procedure is intended to fill and which are unrelated to the fixed-term nature of the worker’s employment relationship, it is capable of being justified for the purposes of clause 4(1) and/or (4) of the framework agreement (see, to that effect, Rosado Santana , paragraph 79).
|
79. Where, in a selection procedure, such a difference in treatment flows from the need to take account of objective requirements relating to the post which that procedure is intended to fill and which are unrelated to the fixed-term nature of the interim civil servant’s employment relationship, it is capable of being justified for the purposes of clause 4(1) and/or (4) of the framework agreement.
|
30. La Cour a également précisé que, dès l’acquittement d’une taxe d’immatriculation dans un État membre, le montant de cette taxe s’incorpore dans la valeur du véhicule. Ainsi, lorsqu’un véhicule immatriculé dans l’État membre concerné est, par la suite, vendu en tant que véhicule d’occasion dans ce même État membre, sa valeur marchande comprend le montant résiduel de la taxe d’immatriculation et sera égale à un pourcentage, déterminé par la dépréciation de ce véhicule, de sa valeur initiale (arrêt du 5 octobre 2006, Nádasdi et Németh, C‑290/05 et C‑333/05, Rec. p. I‑10115, point 54).
|
36. It is settled case-law that the wording used in one language version of a provision of European Union law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of European Union law (see Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 16; and Case C‑187/07 Endendijk [2008] ECR I‑2115, paragraph 23).
|
23. According to settled case-law, the wording used in one language version of a Community provision cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of Community law (see Case C-149/97 Institute of the Motor Industry [1998] ECR I-7053, paragraph 16).
|
17 However, Article 3(1)(a) of Directive 79/7 does not refer to a statutory scheme which, on certain conditions, provides persons with means below a legally defined limit with a special benefit designed to enable them to meet their needs.
|
39. It follows therefrom that, in order to fall within the scope of Directive 2001/83, the product in question, firstly, must satisfy the conditions laid down in Article 2(1) of that directive and, secondly, must not fall within one of the exceptions expressly provided for in Article 3 of that directive (see, to that effect, judgment in Octapharma France , C‑512/12, EU:C:2014:149, paragraph 38).
|
38. However, although plasma intended for transfusion which is prepared by a method involving an industrial process comes within the material scope of Directive 2001/83, as amended by Directive 2004/27, with respect to its processing, storage and distribution, the product in question, in order to be subject to the provisions of that directive, must none the less also satisfy the conditions laid down in Article 2 of that directive and be able to be regarded as a medicinal product for human use within the meaning of Article 1(2) of Directive 2001/83, as amended by Directive 2004/27.
|
23. The interpretation of the concept of parody must, in any event, enable the effectiveness of the exception thereby established to be safeguarded and its purpose to be observed (see, to that effect, judgment in Football Association Premier League and Others , C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 163).
|
34. According to settled case-law, medical services supplied for consideration fall within the scope of the provisions on the freedom to provide services (see, in particular, Kohll , paragraph 29, and Elchinov , paragraph 36), there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, paragraph 41; Müller‑Fauré and van Riet , paragraph 38; Watts , paragraph 86, and Case C‑512/08 Commission v France [2010] ECR I‑0000, paragraph 30).
|
41 It is settled case-law that medical activities fall within the scope of Article 60 of the Treaty, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment (see Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16, Case C-159/90 Society for the Protection of Unborn Children Ireland [1991] ECR I-4685, paragraph 18, and Kohll, paragraphs 29 and 51).
|
58. En effet, il ressort de la jurisprudence que l’obligation de récupération imposée par une décision de la Commission concernant un régime d’aides individualise suffisamment tous les bénéficiaires du régime en question en ce qu’ils sont exposés, dès le moment de l’adoption de cette décision, au risque que les avantages qu’ils ont perçus soient récupérés, et se trouvent ainsi affectés dans leur situation juridique. En particulier, l’éventualité que, ultérieurement, les avantages déclarés illégaux ne soient pas récupérés auprès de leurs bénéficiaires n’exclut pas que ceux-ci soient considérés comme individuellement concernés (arrêt Comitato «Venezia vuole vivere» e.a./Commission, précité, point 56).
|
58 In this regard, where the Commission intends to adopt safeguard measures on the basis of Article 109(1) of the OCT Decision it must, in so far as the circumstances of the case permit, inquire into the negative effects which its decision might have on the economy of the OCT concerned as well as on the undertakings concerned (see Antillean Rice Mills and Others v Commission, cited above, paragraph 25).
|
25 As to the substance of the plea of inadmissibility, it must be noted that the Court deduced from Article 130(3) of the Act concerning the conditions of accession of the Hellenic Republic and the adjustments to the Treaties (OJ 1979 L 291, p. 17) that when adopting safeguard measures the Commission must, in so far as the circumstances of the case permit, inquire into the negative effects which its decision might have on the economy of that Member State as well as on the undertakings concerned, and concluded therefrom that those undertakings were to be considered as individually concerned by that decision (see Piraiki-Patraiki, paragraphs 28 and 31).
|
159. It follows that, in order to be capable of preventing registration of a new sign, the sign relied on in opposition must actually be used in a sufficiently significant manner in the course of trade and its geographical extent must not be merely local, which implies, where the territory in which that sign is protected may be regarded as other than local, that the sign must be used in a substantial part of that territory.
|
38. Thus, a ‘longer’ national limitation period within the meaning of Article 3(3) of Regulation No 2988/95 must, inter alia, not go clearly beyond what is necessary to achieve the objective of protecting the European Union’s financial interests (see, to this effect, Case C-221/09 AJD Tuna [2011] ECR I-0000, paragraph 79 and the case-law cited).
|
79. For the rest, the principle of proportionality, which is one of the general principles of European Union law, requires that measures implemented through a provision of European Union law be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, to that effect, Case C‑210/03 Swedish Match [2004] ECR I‑11839, paragraph 47, and Case C-558/07 S.P.C.M. and Others [2009] ECR I-5783, paragraph 41).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
159. On the other hand, if an undertaking has directly taken part in one or more of the forms of anti-competitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk (judgment in Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 44).
|
44. On the other hand, if an undertaking has directly taken part in one or more of the forms of anti-competitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk.
|
40. However, women taking maternity leave provided for by Article 8 of that directive are in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or with that of a woman actually at work (see Case C‑342/93 Gillespie and Others [1996] ECR I‑475, paragraph 17, and Case C‑147/02 Alabaster [2004] ECR I‑3101, paragraph 46).
|
19. The Court has, however, subsequently acknowledged that a defaulting Member State may rely on the expiry of a limitation period as a defence against legal proceedings, even though by the date on which the actions in question were brought that Member State had not yet correctly transposed the directive in question, ruling that the solution established in Emmott had been justified by the circumstances particular to that case, in which a time-bar had had the result of depriving the applicant in the main proceedings of any opportunity whatever to invoke her right to equal treatment under a directive (see Case C‑338/91 Steenhorst-Neerings [1993] ECR I‑5475; Case C‑410/92 Johnson [1994] ECR I‑5483; Fantask and Others , paragraphs 50 to 52; Case C‑30/02 Recheio – Cash & Carry [2004] ECR I‑6051; and Danske Slagterier , paragraphs 53 to 56).
|
55. It is not apparent either from the documents before the court or from the hearing which took place in the oral procedure that, in the main proceedings, the existence of the time-limit at issue had the result, as in the proceedings which gave rise to the judgment in Emmott , of depriving the injured parties of any opportunity whatsoever to rely on their rights before the national courts.
|
74. Removing unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful and seeks to re-establish the previous situation ( Italy and SIM 2 Multimedia , paragraph 66).
|
17. Furthermore, it follows from case-law that, where a directive expressly provides that the measures transposing it are to contain a reference to it or are to be accompanied by such a reference on the occasion of their official publication, it is in any event necessary to adopt a specific measure transposing the directive (see Case C-360/95 Commission v Spain [1997] ECR I-7337, paragraph 13; Case C‑361/95 Commission v Spain [1997] ECR I‑7351, paragraph 15; and judgment of 1 October 2009 in Case C‑502/08 Commission v Spain , paragraph 21).
|
13 As regards, second, the provisions of the Directive which the Kingdom of Spain considers to have been transposed by rules in force before the end of the period laid down by the Commission, it must be observed that, as the Commission has rightly pointed out, it is necessary in this case to adopt a specific measure transposing the Directive, since the second paragraph of Article 1 of the Directive expressly requires Member States to ensure that their measures transposing the Directive include a reference to it or that such reference is made when they are officially published (see, to the same effect, Case C-137/96 Commission v Germany [1997] ECR I-0000, paragraph 8). The measures on which the Kingdom of Spain relies, however, mentioned in paragraph 8 above, do not meet that requirement.
|
19 The basic principle of the VAT system is that it is intended to tax only the final consumer. Consequently, the taxable amount serving as a basis for the VAT to be collected by the tax authorities cannot exceed the consideration actually paid by the final consumer which is the basis for calculating the VAT ultimately borne by him.
|
38 Lastly, there is nothing in the material produced to the Court to suggest that the courts in the United Kingdom, if called upon to interpret section 4(1)(e), would not do so in the light of the wording and the purpose of the Directive so as to achieve the result which it has in view and thereby comply with the third paragraph of Article 189 of the Treaty (see, in particular, Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 26). Moreover, section 1(1) of the Act expressly imposes such an obligation on the national courts.
|
26 It must also be borne in mind that, as the Court has consistently held since its judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. The judgments of the Court in Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8, and Case C-334/92 Wagner Miret v Fondo de Garantía Salarial [1993] ECR I-6911, paragraph 20, make it clear that, when applying national law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty.
|
31. It is apparent from the order for reference that the goods which are the subject-matter of these proceedings were presented to the relevant customs office, covered by a summary declaration pending the assignment of a customs-approved treatment or use and, therefore, had the status of goods in temporary storage. Furthermore, it is common ground that those goods were unlawfully removed from customs supervision following a theft, which took place at the time when they had just been unloaded from the vessel and placed on the quayside by Seaport Terminals.
|
57. Consequently, that right of veto, in so far as it confers on the Portuguese State an influence over the management and control of GALP which is not justified by the size of its shareholding in that company, is liable to discourage traders from other Member States from making direct investments in GALP’s share capital since it would not be possible for them to be involved in the management and control of that company in proportion to the value of their shareholdings (see, inter alia, Case C‑112/05 Commission v Germany , paragraphs 50 to 52; Case C‑171/08 Commission v Portugal , paragraph 60; and Case C‑543/08 Commission v Portugal , paragraph 56).
|
56. Therefore, the creation of those golden shares must be regarded as being attributable to the State and, consequently, falls within the scope of Article 56(1) EC.
|
29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
|
30 Thus, in paragraphs 7 and 8 of Hoffmann-La Roche, the Court considered that the proprietor's right to oppose the repackaging of pharmaceutical products bearing its mark is, having regard to that risk to the guarantee of origin, related to the specific subject-matter of the mark. According to that case-law, it is the repackaging of the trade-marked pharmaceutical products in itself which is prejudicial to the specific subject-matter of the mark, and it is not necessary in that context to assess the actual effects of the repackaging by the parallel importer.
|
8IT IS ACCORDINGLY JUSTIFIED UNDER THE FIRST SENTENCE OF ARTICLE 36 TO RECOGNIZE THAT THE PROPRIETOR OF A TRADE-MARK IS ENTITLED TO PREVENT AN IMPORTER OF A TRADE-MARKED PRODUCT , FOLLOWING REPACKAGING OF THAT PRODUCT , FROM AFFIXING THE TRADE-MARK TO THE NEW PACKAGING WITHOUT THE AUTHORIZATION OF THE PROPRIETOR .
|
55. Second, it is contrary to the principle of mutual recognition for a host Member State to refuse to recognise a driving licence issued by another Member State on the ground that, according to the information supplied by the host Member State, the holder of that licence did not, at the date of its issue, satisfy the necessary conditions for obtaining it (see, to that effect, the order in Da Silva Carvalho , paragraph 22, and Kapper , paragraph 47).
|
43. As regards such a circumstance, it must be observed that, in accordance with a consistent line of cases (see, in particular, Case C‑189/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 240 to 242), the gravity of an infringement is assessed in the light of numerous factors, in respect of which the Commission has a margin of discretion. In taking into consideration, in accordance with the Guidelines referred to above, when determining the amount of the fine, the fact that there are aggravating circumstances, the Commission is merely carrying out its task of ensuring compliance with the Community competition rules.
|
242. 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 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 (see Musique Diffusion française and Others v Commission , paragraph 129).
|
84. Under Article 13(2) TEU, the European Union’s institutions are to practise mutual sincere cooperation. That sincere cooperation, however, is exercised within the limits of the powers conferred by the Treaties on each institution. The obligation resulting from Article 13(2) TEU is therefore not such as to change those powers (judgment in Parliament v Council , C‑48/14, EU:C:2015:91, paragraphs 57 and 58).
|
59
A party cannot, consequently, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment of 3 September 2015 in Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 57 and the case-law cited).
|
57. According to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would in effect allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment in Nexans and Nexans France v Commission , C‑37/13 P, EU:C:2014:2030, paragraph 45 and the case-law cited).
|
12 FURTHERMORE , IT MUST BE NOTED THAT WHILST MEASURES OF A PURELY PREPARATORY CHARACTER MAY NOT THEMSELVES BE THE SUBJECT OF AN APPLICATION FOR A DECLARATION THAT THEY ARE VOID , ANY LEGAL DEFECTS THEREIN MAY BE RELIED UPON IN AN ACTION DIRECTED AGAINST THE DEFINITIVE ACT FOR WHICH THEY REPRESENT A PREPARATORY STEP .
|
67. Although the Court held in that judgment that the contested decision, which authorised the transitional measures under the 2000-2006 aid scheme, did not infringe the principle of equal treatment because it treated the undertakings in the first and second categories differently, it did not in any way rule on the compatibility of that decision or of the 1997 decision with other principles, such as, in particular, the principles of the protection of legitimate expectations and legal certainty. On the contrary, it stated in paragraph 44 of its judgment that, although Nuova Agricast had, in the main proceedings, put forward other grounds of invalidity of the contested decision, it was inappropriate to extend the examination of the validity of that decision in the light of those other grounds of invalidity, which had not been referred to by the national court.
|
44. That being so, even though Nuova Agricast put forward other grounds of invalidity as regards the contested decision in the main proceedings, it is inappropriate to extend the inquiry into the validity of that decision to those other grounds of invalidity, which the national court has not referred to (see, by way of analogy, Ordre des barreaux francophones et germanophone and Others , paragraphs 17 to 19).
Admissibility
|
63 Furthermore, any difficulty or doubt concerning a certificate must be brought to the attention of the authorities of the exporting State by the importing Member State. That cooperation, which is necessary in order to achieve the objectives of the directive, cannot be established with authorities who are not recognized either by the Community or by its Member States. It would be impossible for an importing State to address enquiries to the departments or officials of an entity which is not recognized, for instance concerning contaminated products or certificates that are incorrect or have been interfered with. Clearly only the authorities of the Republic of Cyprus are in a position to take action following complaints connected with the contamination of plant products exported from Cyprus.
|
18. Accordingly, services fall within the concept of an ‘activity closely related’ to hospital or medical care appearing in Article 13A(1)(b) of that directive only when they are actually supplied as a service ancillary to the hospital or medical care received by the patients in question and constituting the principal service ( Dornier , paragraph 35).
|
35. Accordingly, the Court finds that psychotherapeutic treatment given in an out-patient facility of a foundation governed by private law by qualified psychologists who are not doctors is an activity " closely related" to hospital or medical care within the meaning of Article 13A(1)(b) of the Sixth Directive only when such treatment is actually given as a service ancillary to the hospital or medical care received by the patients in question and constituting the principal service.
The term of " medical care"
─ Observations submitted to the Court
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
54. As the Italian Government and the Commission have correctly observed, where the authorities of the exporting State have been misled by the exporters, the issue of incorrect EUR.1 certificates cannot be regarded as constituting an error on the part of those authorities themselves. In this respect, it follows from well-established case-law that only errors that are attributable to acts of the competent authorities confer entitlement to the waiver of post-clearance recovery of customs duties. In the absence of such an error, Article 220(2)(b) of the Customs Code does not allow the person liable to claim a legitimate expectation (see, inter alia, Faroe Seafood and Others , paragraphs 91 and 92, and Agrover , paragraph 31). In those circumstances, Afasia’s arguments alleging a case of force majeure serve no purpose.
|
31. As regards the first of those conditions, it should be noted that Article 220(2)(b) of the Customs Code is intended to protect the legitimate expectation of the person liable for payment that all the information and criteria on which the decision to recover or not to recover customs duties is based are correct. The legitimate expectations of the person liable attract the protection provided for in that article only if it was the competent authorities ‘themselves’ which created the basis for those expectations. Thus, only errors attributable to acts of the competent authorities create entitlement to the waiver of subsequent recovery of customs duties (see, by analogy, Mecanarte , paragraphs 19 and 23).
|
29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
|
22. As regards the question whether national legislation falls within the scope of one or other of the freedoms of movement, it is clear from what is now well established case-law that the purpose of the legislation concerned must be taken into consideration (see, to that effect, Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraphs 31 to 33; Case C‑452/04 Fidium Finanz [2006] ECR I‑9521, paragraphs 34 and 44 to 49; Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑0000, paragraphs 37 and 38; Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑0000, paragraph 36; and Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007 ] ECR I‑0000, paragraphs 26 to 34).
|
29. In the first place, in the case of the legislation in force prior to the amendments made in 1998, the relevant provisions of ICTA applied to loans granted by a non-resident company to a resident subsidiary of which the former company owned 75% of the capital or where each of the companies was a 75% subsidiary of a third company.
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
39. The Austrian Government ' s argument that, in the absence of a mathematically certain method of calculating tolls or user charges, Articles 7(b) of Directive 93/89 and 7(4) of Directive 1999/62 may not be relied upon cannot be accepted. According to the Court ' s settled case-law, discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Commission v Austria , paragraph 70). That criterion is sufficient to establish whether the prohibition of discrimination laid down in those provisions has been infringed in the case in the main proceedings, by making a comparison of the tolls charged for the various journeys under consideration ( Commission v Austria , paragraphs 79 to 88, 112 and 115).
|
84 Similarly, the Austrian Government's argument that any comparison between vehicles with more than three axles and those with up to three axles would be inappropriate since the former, by reason of their greater weight and more powerful engines, are more detrimental to the environment, cannot be accepted.
|
42. In that regard, whilst this provision is primarily designed to prevent the proprietor of a trade mark from prohibiting competitors from using one or more descriptive terms forming part of his trade mark in order to indicate certain characteristics of their products (see, for example, Joined Cases C‑108/97 and C‑109/97 Windsurfing Chiemsee [1999] ECR I‑2779, paragraph 28), its wording is in no way specific to such a situation.
|
29. La Cour a ainsi déjà jugé que, en matière de taxation des véhicules automobiles, cette disposition du traité vise à garantir la parfaite neutralité des impositions intérieures au regard de la concurrence entre produits se trouvant déjà sur le marché national et produits importés (arrêts du 11 décembre 1990, Commission/Danemark, C‑47/88, Rec. p. I‑4509, point 9, et du 29 avril 2004, Weigel, C‑387/01, Rec. p. I‑4981, point 66).
|
9 It should also be noted that, as the Court has consistently held ( see most recently the judgment in Case 252/86 Bergandi v Directeur général des impôts [1988] ECR 1343 ) that the aim of Article 95 as a whole is to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States . Thus Article 95 must guarantee the complete neutrality of internal taxation as regards competition between domestic products and imported products .
|
68. That analysis is confirmed by the content of the recitals in the preamble to the Directive and by the observations submitted during the procedure.
|
189. As the Court has repeatedly held, a measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 24; Case C-156/93 Parliament v Commission [1995] ECR I-2019, paragraph 31; and Case C-48/96 P Windpark Groothusen v Commission [1998] ECR I-2873, paragraph 52, and Case C-110/97 Netherlands v Council [2001] ECR I-8763, paragraph 137).
|
24 Furthermore, the Court has consistently held ( see in particular judgments in Joined Cases 140, 146, 221 and 226/82 Walzstahl-Vereinigung and Thyssen v Commission [1984] ECR 951, paragraph 27, and Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 30 ) that a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case .
|
39 It is clear from Article 3(1) of Directive 75/439, as amended that, by its reference to `technical, economic and organisational constraints', the Community legislature did not intend to provide limited exceptions to a rule having general application, but to define the scope and content of a positive obligation to give priority to the processing of waste oils by regeneration.
|
30. If the plant protection product concerned must be regarded as having already been authorised in the Member State of importation, the competent authorities of that State must allow the product concerned to have the benefit of the marketing authorisation issued to the plant protection product already on the market, unless that is precluded by considerations relating to the effective protection of human and animal health and of the environment (see, to that effect, Smith & Nephew and Primecrown , paragraphs 29 and 32, and British Agrochemicals Association , paragraph 36). Accordingly, a plant protection product introduced into the territory of a Member State as a parallel import cannot, automatically or absolutely and unconditionally, have the benefit of a marketing authorisation issued to a plant protection product already on the market of that State.
|
29 If, on completion of its examination, the competent authority of the Member State of importation finds that all the abovementioned criteria are satisfied, the proprietary medicinal product to be imported must be regarded as having already been placed on the market in the Member State of importation and, consequently, must be entitled to benefit from the marketing authorization issued for the proprietary medicinal product already on the market, unless there are countervailing considerations relating to the effective protection of the life and health of humans.
|
37 The decisions of United Kingdom courts and tribunals relied on by the Commission in support of its second complaint predate the judgment of the House of Lords cited by the United Kingdom, which was delivered on 16 March 1989 and which, as the Commission concedes, holds that the UK Regulations must, as far as possible, be interpreted in accordance with the wording and objectives of the directive and with the Court' s interpretation thereof. The Commission does not cite any judicial decision which is later than that judgment and incompatible with Article 1(1) of the directive, as interpreted by the Court.
|
40
The Member States are, therefore, free to set the objectives of their policy on betting and gaming and, where appropriate, to define in detail the level of protection sought. However, the restrictive measures that the Member States impose must satisfy the conditions laid down in the case-law of the Court as regards, inter alia, their justification by overriding reasons in the general interest and their proportionality (judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraph 40 and the case-law cited).
|
40
The Member States are therefore free to set the objectives of their policy on betting and gambling and, where appropriate, to define in detail the level of protection sought. However, the restrictive measures that the Member States impose must satisfy the conditions laid down in the case-law of the Court as regards inter alia their justification by overriding reasons in the general interest and their proportionality (see, to that effect, judgment of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 59 and the case-law cited).
|
80. Ledit principe ne peut être invoqué que dans la mesure où la Communauté elle-même a créé au préalable une situation susceptible d’engendrer une confiance légitime (voir arrêt du 10 janvier 1992, Kühn, C‑177/90, Rec. p. I‑35, point 14).
|
58. The Court has held, by way of exception, that, despite the absence of implementing measures adopted at the national level, the applicant may be ‘directly concerned’ within the meaning of the fourth paragraph of Article 230 EC where other factors, including the purely hypothetical power not to give effect to the contested decision, imply the existence of direct concern in its regard (see, to that effect, Dreyfus v Commission , paragraphs 47 and 52, and Piraiki‑Patraiki and Others v Commission , paragraphs 7 and 9 to 10).
|
47 It is necessary, therefore, to determine whether the letter sent by the Commission to the VEB on 1 April 1993 is of direct and individual concern to the applicant.
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
31 It follows from that principle, as well as from the rule that, in order to give rise to the right to deduct, the goods or services purchased must have a direct and immediate link with the output transactions in respect of which VAT is deductible, that there was a right to deduct the VAT borne by those goods or services because the expenditure incurred in acquiring them was a component of the cost of those output transactions. The expenditure must therefore form part of the costs of the output transactions in respect of which VAT is deductible which use the goods and services acquired (Midland Bank, paragraph 30, and Abbey National, paragraph 28).
|
30 It follows from that principle as well as from the rule enshrined in paragraph 19 of the judgment in BLP Group, cited above, according to which, in order to give rise to the right to deduct, the goods or services acquired must have a direct and immediate link with the taxable transactions, that the right to deduct the VAT charged on such goods or services presupposes that the expenditure incurred in obtaining them was part of the cost components of the taxable transactions. Such expenditure must therefore be part of the costs of the output transactions which utilise the goods and services acquired. That is why those cost components must generally have arisen before the taxable person carried out the taxable transactions to which they relate.
|
21 Since this case concerns a situation where the trade mark has been assigned for one State only and the question whether the solution in HAG II regarding the splitting of a mark as a result of sequestration also applies in the event of splitting by voluntary act, it should be noted first, as the United Kingdom pointed out, that national trade-mark rights are not only territorial but also independent of each other.
|
81
Thus, it is following a schematic interpretation of the relevant EU rules that the Court of Justice interpreted those rules as meaning that, as from 2000, the Commission is required to comply with a legal time limit when adopting a decision on financial corrections (see judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 56 to 82, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 56 to 82).
|
81. In addition, concerning more particularly Regulation No 1386/2002, the purpose of which is to lay down the procedure for implementing Regulation No 1164/94, as amended, of which the provision at issue in the present dispute forms part, the view advanced by the Commission, and affirmed by the General Court in paragraphs 33 and 36 of the judgment under appeal, that Article 18 of Regulation No 1386/2002 merely fixes the date when the time-limit for taking a decision under Article H(2) of Annex II to Regulation No 1164/94, as amended, starts to run, cannot be accepted, since the European Union legislature could not have set the starting point for a time-limit for adopting a decision under Article H if such a time-limit did not exist.
|
75. In that regard, it is clear from the Court’s case-law that an economic activity within the meaning of the Sixth Directive need not consist of a single act but may consist of a series of consecutive acts (see Case 268/83 Rompelman [1985] ECR 655, paragraph 22, and Case C‑32/03 Fini H [2005] ECR I‑1599, paragraph 21).
|
112 Referring to GB-Inno-BM, cited above, Albany considers, however, that the fact that the Fund fulfils a dual role, as manager of the pension scheme and as the authority vested with the power to grant exemptions, might give rise to arbitrary exercise of the power of exemption.
|
28 Accordingly, it must first be stated, in reply to the national court' s questions, that Articles 3(f), 90 and 86 of the EEC Treaty preclude a Member State from granting to the undertaking which operates the public telecommunications network the power to lay down standards for telephone equipment and to check that economic operators meet those standards when it is itself competing with those operators on the market for that equipment.
The free movement of goods
|
24. For such a justification to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, inter alia, Case C‑347/04 Rewe Zentralfinanz [2007] ECR I‑2647, paragraph 62 and the case-law cited).
|
60. As regards the risk of serious difficulties, it must be observed, to begin with, that in the present case the interpretation of European Union law given by the Court in this judgment relates to the concept of ‘unfair term’ used in Article 3(1) of Directive 93/13 and to the criteria which the national court may or must apply when examining the contractual term at issue from the point of view of the provisions of Directive 93/13, taking into account the provisions of Directive 2003/55. It is for the national court to determine in the light of those criteria whether a particular contractual term is actually unfair in the circumstances of the case ( VB Pénzügyi Lízing , paragraph 44, and Invitel , paragraph 22).
|
22. It should be noted, in this regard, that the jurisdiction of the Court of Justice extends to the interpretation of the concept of ‘unfair term’ used in Article 3(1) of the Directive and in the annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of the Directive, bearing in mind that it is for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case (Case C‑137/08 VB Pénzügyi Lízing [2010] ECR I‑10847, paragraph 44). It is thus clear that the Court of Justice must limit itself, in its response, to providing the referring court with the indications which the latter must take into account in order to assess whether the term at issue is unfair.
|
30. On the other hand, the legal situation is completely different where an undertaking is caught exclusively – in competition matters – by the application of Community law and the law of one or more Member States on competition, that is to say, where a cartel is confined exclusively to the territorial scope of application of the legal system of the European Community.
|
15. According to settled case-law, the rule laid down in Article 5(3) of the Convention is based on the existence of a particularly close connecting factor between a dispute and courts other than those for the place where the defendant is domiciled, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (see, inter alia, Case 21/76 Bier (‘ Mines de Potasse d’Alsace ’) [1976] ECR 1735, paragraph 11, and Case C-167/00 Henkel [2002] ECR I‑8111, paragraph 46).
|
46 The rule of special jurisdiction laid down in Article 5(3) of the Brussels Convention is based on the existence of a particularly close connecting factor between a dispute and the courts for the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (see to that effect, inter alia, Mines de Potasse d'Alsace, paragraphs 11 and 17; Dumez France and Tracoba, paragraph 17; Shevill and Others, paragraph 19, and Marinari, paragraph 10). The courts for the place where the harmful event occurred are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence. Those considerations are equally relevant whether the dispute concerns compensation for damage which has already occurred or relates to an action seeking to prevent the occurrence of damage.
|
54. À l’égard de ces arguments, il convient de relever qu’il n’est pas nécessaire, pour démontrer que la transposition d’une directive est insuffisante ou inadéquate, d’établir les effets réels de la législation nationale de transposition. En effet, c’est le texte même de cette législation qui porte en lui le caractère insuffisant ou défectueux de la transposition (voir, en ce sens, arrêts du 21 septembre 1999, Commission/Irlande, C‑392/96, Rec. p. I‑5901, point 60, et du 20 novembre 2008, Commission/Irlande, précité, point 59).
|
41. However, the Court may examine whether the Court of First Instance has responded to the parties' pleas and given proper grounds for its judgment (see, to that effect, Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraphs 119 to 122).
|
121 As the Advocate General observed in point 61 of his Opinion, although the Court of First Instance is required to give reasons for its decisions, it is not obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence. In that regard, the appellant has not proved, or even asserted, that the arguments referred to in paragraph 119 of this judgment meet those requirements or that they were supported by evidence which was distorted by the Court of First Instance, or that in its assessment of that evidence the Court of First Instance contravened the rules of procedure or general legal principles concerning the burden of proof or the taking of evidence.
|
40. Furthermore, it follows from Articles 2 and 3 of Directive 2003/9 that the directive provides for only one category of asylum seekers, comprising all third-country nationals or stateless persons who make an application for asylum. No provision can be found in the directive such as to suggest that an application for asylum can be regarded as having been lodged only it if is submitted to the authorities of the Member State responsible for the examination of that application.
|
53. In this context, the Court has held with reference to migrant workers that neither the FEU Treaty, in particular Article 45 TFEU, nor Regulation No 1408/71 gives those workers the option to waive in advance the benefit of the mechanism introduced inter alia by Article 28(1) of that regulation (Case C‑160/96 Molenaar [1998] ECR I‑843, paragraph 42).
|
42 Recognition of a right to exemption would amount, moreover, to accepting, as regards the scope of the risks covered by sickness insurance, a difference in the treatment of insured persons according to whether or not they resided on the territory of the State in which they were insured. To offer a migrant worker the possibility of choosing exemption would be equivalent, for the competent State, to asking him to waive in advance the benefit of the mechanism introduced by Articles 19(1), 25(1) and 28(1) of Regulation No 1408/71. No such consequence can arise either from the Treaty, in particular Articles 6 and 48(2) thereof, or from that regulation.
|
43. As the Advocate General pointed out in paragraph 33 of his Opinion, Article 50a clearly means that an application can be regarded as having been ‘lodged’ only when its addressee receives it. It is not therefore sufficient that an application was posted within the time‑limit.
|
47. As is apparent both from the wording of Article 4(2) of the Rome Convention, which makes express provision for the application of Article 4(5), and from the Court’s case-law, that presumption may be disregarded when the requirements of Article 4(5) are met (see, to that effect, judgment in ICF , EU:C:2009:617, paragraphs 63 and 64).
|
63. However, where it is clear from the circumstances as a whole that the contract is more closely connected with a country other than that identified on the basis of the presumptions set out in Article 4(2) to (4) of the Convention, it is for that court to refrain from applying Article 4(2) to (4).
|
44. It follows that the latter exception must be interpreted as relating only to activities which are carried out in the course of private or family life of individuals (see Lindqvist , paragraph 47). That clearly does not apply to the activities of Markkinapörssi and Satamedia, the purpose of which is to make the data collected accessible to an unrestricted number of people.
|
31
In order to answer the questions put by the referring court, it should be recalled that, according to the case-law, the existence of an economic activity establishes, pursuant to Article 9(1) of the VAT Directive, the status of ‘taxable person’, to whom that directive gives the right to deduct (see, to that effect, judgment of 3 March 2005, Fini H, C‑32/03, EU:C:2005:128, paragraph 19).
|
19. The Court observes, first of all, that Article 4(1) of the Sixth Directive defines ‘taxable person’ by reference to the term ‘economic activity’. It is the existence of such an activity which establishes the status of ‘taxable person’ to whom the Sixth Directive gives the right to deduct.
|
18 The answer to the first question must therefore be that Protocol 3 to the EEC-Austria Agreement is to be interpreted as meaning that where the exporting State, having been requested to check the EUR.1 certificate of origin, does not succeed in establishing the correct origin of the goods, it must conclude that they are of unknown origin and therefore that the EUR.1 certificate and the preferential tariff have been wrongly granted.
The second question
|
72. By contrast, the Court has accepted the relevance of the argument that a prohibition on television advertising deprived a trader of the only effective form of promotion which would have enabled it to penetrate a national market (see De Agostini and TV-Shop , paragraph 43). Furthermore, the Court has found that in the case of products such as alcoholic beverages, the consumption of which is linked to traditional social practices and to local habits and customs, prohibiting all advertising directed at consumers in the form of advertisements in the press, on the radio and on television, the direct mailing of unsolicited material or the placing of posters on the public highway is liable to impede access to the market for products from other Member States more than it impedes access for domestic products, with which consumers are instantly more familiar (see Case C-405/98 Gourmet International Products [2001] ECR I-1795, paragraphs 21 and 24).
|
21 Even without its being necessary to carry out a precise analysis of the facts characteristic of the Swedish situation, which it is for the national court to do, the Court is able to conclude that, in the case of products like alcoholic beverages, the consumption of which is linked to traditional social practices and to local habits and customs, a prohibition of all advertising directed at consumers in the form of advertisements in the press, on the radio and on television, the direct mailing of unsolicited material or the placing of posters on the public highway is liable to impede access to the market by products from other Member States more than it impedes access by domestic products, with which consumers are instantly more familiar.
|
50
Regulation No 2201/2003 is based on judicial cooperation and mutual trust (judgment of 9 November 2010, Purrucker, C‑296/10, EU:C:2010:665, paragraph 81), which lead to mutual recognition of judicial decisions, the cornerstone for the creation of a genuine judicial area (judgment of 15 July 2010, Purrucker, C‑256/09, EU:C:2010:437, paragraph 70).
|
30. In order to determine whether or not a matter falls within the scope of that regulation, the factors which characterise the nature of the legal relationships between the parties to the dispute or the subject-matter thereof must be examined (judgment in flyLAL-Lithuanian Airlines , C‑302/13, EU:C:2014:2319, paragraph 26 and the case-law cited).
|
26. The scope of Regulation No 44/2001 is, like that of the Brussels Convention, limited to ‘civil and commercial matters’. In order to determine whether a matter falls within the scope of Regulation No 44/2001, the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject-matter thereof must be examined (see, to that effect, judgments in Sapir and Others , C‑645/11, EU:C:2013:228, paragraphs 32 and 34 and the case-law cited, and in Sunico and Others , EU:C:2013:545, paragraphs 33 and 35 and the case-law cited).
|
389. It maintains that both the Court of First Instance, at paragraph 617 of the judgment in HFB and Others v Commission , and the Commission, at the hearing and at points 110 and 180 of the grounds of the contested decision, acknowledged that the appellants’ cooperation and admissions, although only partial, satisfied in principle the conditions for the application of the first indent of Section D, point 2, of the Leniency Notice.
|
32
It follows that the object of an appeal brought against the judgment under appeal can only be to call into question at least one of those two aspects of the decision of the General Court, contesting either the annulment of certain measures as ordered by the General Court or the dismissal, for the remainder, of the action brought by Mr Akhras (see, by analogy, the order in Cytochrome Development v OHIM, C‑490/13 P, EU:C:2014:2122, paragraph 32). Conversely, an appeal which sought only a substitution of the grounds stated by the General Court for that decision, without requesting that that decision be wholly or partly set aside, would have to be considered, pursuant to Article 169(1) of the Court’s Rules of Procedure, to be inadmissible (see, to that effect, the judgments in Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraphs 44 and 45, and Council and Others v Vereeniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraphs 33 and 34).
|
44. However, in the present case, the appellant’s appeal seeks not to have the judgment under appeal set aside, even in part, that is to say the operative part thereof (see, to that effect, Case C‑263/09 P Edwin v OHIM [2011] ECR I‑5853, paragraphs 83 to 85, and the judgment of 21 December 2011 in Case C‑329/09 P Iride v Commission , paragraph 48), but merely the amendment of some of the grounds of that judgment, as the appellant itself acknowledges in its appeal.
|
64. As regards the term " other duly recognised establishments of a similar nature" , Article 13A(1)(b) of the Sixth Directive does not specify the conditions and procedures for that recognition. It is thus, in principle, for the national law of each Member State to lay down the rules according to which such recognition may be granted to establishments which request it.
|
39. In that regard, it should be noted that Directive 2003/30, which, according to Article 1, aimed at promoting the use of biofuels to replace diesel or petrol for transport purposes in each Member State, did not impose any requirements on the Member States in regard to the method of attaining the national indicative targets referred to in Article 3(1), but left them freedom of choice in this regard as to the type of measures to be adopted (see Case C-201/08 Plantanol [2009] ECR I-8343, paragraph 35).
|
35. It must be pointed out that Directive 2003/30 also does not impose any requirements on the Member States in regard to the method of attaining those indicative targets, but leaves them freedom of choice in this regard as to the type of measures to be adopted, thus leaving them a wide discretion to take account, in particular, of the availability of resources and raw materials and of national policies to promote biofuels, as can be seen from recital 20 to the directive.
|
18. It should be recalled that the equal treatment rule which appears both in Article 48 of the EC Treaty (now, after amendment, Article 39 EC) and in Article 7 of Regulation No 1612/68 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 ( Meints , paragraph 44).
|
42
That said, it must be stated, first, that the concept of an ‘act of communication’ refers to any transmission of the protected works, irrespective of the technical means or process used (judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 38).
|
38
That said, it must be stated, first, as regards the concept of the ‘act of communication’, that that refers to any transmission of the protected works, irrespective of the technical means or process used (see, to that effect, judgment of 19 November 2015 in SBS Belgium, C‑325/14, EU:C:2015:764, paragraph 16 and the case-law cited).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
23 It is sufficient to note that the Court has held that, in so far as the jurisdiction clause incorporated in a bill of lading is valid under Article 17 of the Convention as between the shipper and the carrier, it can be pleaded against the third party holding the bill of lading so long as, under the relevant national law, the holder of the bill of lading succeeds to the shipper's rights and obligations (Tilly Russ, paragraph 24, and Castelletti, paragraph 41).
|
41 As to the first point, the Court of Justice held in Tilly Russ, at paragraph 24, that, in so far as a jurisdiction clause incorporated in a bill of lading is valid under Article 17 of the Convention as between the shipper and the carrier, it can be pleaded against the third party holding the bill of lading so long as, under the relevant national law, the holder of the bill of lading succeeds to the shipper's rights and obligations.
|
22 The anti-pollution surveillance for which SEPG was responsible in the oil port of Genoa is a task in the public interest which forms part of the essential functions of the State as regards protection of the environment in maritime areas.
|
129. It should be noted in that connection that the Court has already held that the fact that the legislation of the competent Member State does not guarantee a patient covered by that legislation, who has been authorised to receive hospital treatment in another Member State in accordance with Article 22(1)(c) of Regulation No 1408/71, a level of payment equivalent to that to which he would have been entitled if he had received hospital treatment in the competent Member State is an unjustified restriction of the freedom to provide services within the meaning of Article 49 EC (see Vanbraekel , paragraphs 43 to 52).
|
43 Since the hospital services at issue in the main proceedings fall within the scope of freedom to provide services, it is necessary to go on to consider whether the fact that national legislation does not guarantee a person covered by its social insurance scheme who has been authorised to receive hospital treatment in another Member State in accordance with Article 22(1)(c) of Regulation No 1408/71 a level of payment equivalent to that to which he would have been entitled if he had received hospital treatment in the Member State in which he was insured entails a restriction of freedom to provide services within the meaning of Article 59 of the Treaty.
|
48. The concept of unforeseeable circumstances contains an objective element relating to abnormal circumstances unconnected with the trader in question and a subjective element involving the obligation, on his part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the trader must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time-limits (see, to that effect Case C‑195/91 P Bayer v Commission [1994] ECR I‑5619, paragraph 32; and order in Belgium v Commission , paragraph 17).
|
39. As regards detriment to the distinctive character of the mark, also referred to as ‘dilution’, ‘whittling away’ or ‘blurring’, such detriment is caused when that mark’s ability to identify the goods or services for which it is registered is weakened, since use of an identical or similar sign by a third party leads to dispersion of the identity and hold upon the public mind of the earlier mark. That is particularly the case when the mark, which at one time aroused immediate association with the goods or services for which it is registered, is no longer capable of doing so (see, to that effect, Intel Corporation , paragraph 29).
|
29. As regards, in particular, detriment to the distinctive character of the earlier mark, also referred to as ‘dilution’, ‘whittling away’ or ‘blurring’, such detriment is caused when that mark’s ability to identify the goods or services for which it is registered and used as coming from the proprietor of that mark is weakened, since use of the later mark leads to dispersion of the identity and hold upon the public mind of the earlier mark. That is notably the case when the earlier mark, which used to arouse immediate association with the goods and services for which it is registered, is no longer capable of doing so.
|
27 In accordance with Article 4(2 ) of the basic regulation, an examination of the injury suffered by the Community must involve a series of factors no one of which can give decisive guidance .
|
47. The freedom of establishment conferred on nationals of one Member State in the territory of another Member State includes in particular access to and exercise of activities of self-employed persons under the same conditions as are laid down by the law of the Member State of establishment for its own nationals (see, inter alia, Case 270/83 Commission v France [1986] ECR 273, paragraph 13; Case C-47/08 Commission v Belgium [2011] ECR I-0000, paragraph 79; and, to the same effect, Case C-161/07 Commission v Austria [2008] ECR I-10671, paragraph 27). In other words, Article 43 EC prohibits a Member State from laying down in its laws conditions for the pursuit of activities by persons exercising their right of establishment there which differ from those laid down for its own nationals (Case C‑161/07 Commission v Austria , paragraph 28, and Case C-47/08 Commission v Belgium , paragraph 79).
|
28. In other words, Article 43 EC prohibits the Member States from laying down in their laws conditions for the pursuit of activities by persons exercising their right of establishment which differ from those laid down for its own nationals (Case 270/83 Commission v France [1986] ECR 273, paragraph 24).
|
53. Plus particulièrement, l’article 14 de la directive 1999/31 soumet les décharges «autorisées ou déjà en exploitation au moment de [sa] transposition», qui devait intervenir au plus tard le 16 juillet 2001, à un régime transitoire dérogatoire. Il résulte en effet de ce régime transitoire que, pour pouvoir continuer à fonctionner, ces décharges doivent, au plus tard dans les huit ans à compter du 16 juillet 2001, être mises en conformité avec les nouvelles exigences environnementales énumérées à l’article 8 de la directive 1999/31, à l’exception de celles énoncées à l’annexe I, point 1, de celle-ci (voir, en ce sens, arrêt Ville d’Ottignies-Louvain-la-Neuve e.a., C‑225/13, EU:C:2014:245, points 33 et 34).
|
13 It was in order to comply with the Barber judgment that the occupational scheme concerned in the main proceedings adopted the measure now in dispute. In order to do so, it opted for one of the two possible ways of achieving equal treatment: instead of granting men the same advantage as that enjoyed by women and thus lowering their retirement age to that for women, the scheme raised the retirement age for women to that for men, even for the past, including the period prior to the Barber judgment, and as a result the position of women was made less favourable.
|
28 It must therefore be concluded that, unlike the benefits awarded by national statutory social security schemes, a pension paid under a contracted-out scheme constitutes consideration paid by the employer to the worker in respect of his employment and consequently falls within the scope of Article 119 of the Treaty .
|
21 With regard to the substantive nature of the failure to fulfil obligations, it has consistently been held that the question whether a Member State has failed to fulfil its obligations must be determined solely by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26). Further, a Member State cannot plead provisions, practices or situations within its internal legal order in order to justify its failure to fulfil obligations under Community law.
|
49. In that regard, it is to be remembered that, according to settled case‑law, in proceedings under Article 226 EC for failure to fulfil obligations it is for the Commission to prove the alleged failure. It is the Commission’s responsibility to place before the Court all 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 presumption (see, inter alia, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6, and Case C-135/05 Commission v Italy [2007] ECR I‑3475, paragraph 26).
|
6 IT SHOULD BE EMPHASIZED THAT , IN PROCEEDINGS UNDER ARTICLE 169 OF THE EEC TREATY FOR FAILURE TO FULFIL AN OBLIGATION , IT IS INCUMBENT UPON THE COMMISSION TO PROVE THE ALLEGATION THAT THE OBLIGATION HAS NOT BEEN FULFILLED . IT IS 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 PRESUMPTION .
|
125. According to settled case-law, the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard (see, in particular, Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31; Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 28; Case C-148/02 Garcia Avello [2003] ECR I-11613, paragraphs 22 and 23; and Case C-224/02 Pusa [2004] ECR I-5763, paragraph 16).
|
43. Therefore, as the Commission points out, if the Community design court finds that the fact of requiring the holder of the protected design to prove that the contested use results from copying that design is likely to make it impossible or excessively difficult for such evidence to be produced, that court is required, in order to ensure observance of the principle of effectiveness, to use all procedures available to it under national law to counter that difficulty (see, by analogy, Case C‑526/04 Laboratoires Boiron [2006] ECR I‑7529, paragraph 55, and Case C‑264/08 Direct Parcel Distribution Belgium [2010] ECR I‑731, paragraph 35). Thus, that court may, where appropriate, apply rules of national law which provide for the burden of proof to be adjusted or lightened.
|
35. In order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring the person liable for the customs debt to prove that it was not entered in the accounts is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which the person liable could not possess, it is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document (see, by analogy, Laboratoires Boiron , paragraph 55).
|
60. Selon une jurisprudence constante, lorsque le Tribunal a constaté ou apprécié les faits, la Cour est compétente pour exercer, en vertu de l’article 256 TFUE, un contrôle sur la qualification juridique de ces faits et les conséquences de droit qui en ont été tirées par le Tribunal (arrêt Chetcuti/Commission, C-16/07 P, EU:C:2008:549, point 53 et jurisprudence citée).
|
44. It follows that, if the transaction at issue in the main proceedings is categorised as a ‘service contract’ within the meaning of Directive 2004/17, such a contract must, in principle, be concluded in accordance with the procedures laid down in Articles 31 and 32 thereof. On the other hand, under Article 18 of that directive, if that transaction is categorised as a service concession, the directive is not applicable to it. In such circumstances, the awarding of the concession remains subject to the fundamental rules of the Treaty, in general, and to the principles of equal treatment and of non-discrimination on the ground of nationality, and the concomitant obligation of transparency, in particular (see, to that effect, Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraphs 60 to 62; Case C‑231/03 Coname [2005] ECR I‑7287, paragraphs 16 to 19; Case C‑458/03 Parking Brixen [2005] ECR I‑8585, paragraphs 46 to 49; and Case C‑324/07 Coditel Brabant [2008] ECR I‑0000, paragraph 25).
|
19. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC (see in particular, to that effect, Case C-111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 17, Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 27, and Case C‑294/97 Eurowings Luftverkehr [1999] ECR I-7447, paragraph 33 and the case-law cited).
|
47
In so far as both Article 4(7) of that regulation and Article 25 of Directive 2004/18, as amended, contain rules on subcontracting, the view must be taken that the first provision constitutes a special rule with respect to the rules laid down in the second provision, and, as a lex specialis, takes precedence over the latter.
|
88. According to Article 6(1) TEU, the provisions of the Charter are not to extend in any way the competences of the European Union as defined in the Treaties. Likewise, the Charter, pursuant to Article 51(2) thereof, does not extend the field of application of EU law beyond the powers of the European Union or establish any new power or task for the European Union, or modify powers and tasks as defined in the Treaties (see judgment in Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraphs 17 and 23, and order in Nagy and Others , C‑488/12 to C‑491/12 and C‑526/12, EU:C:2013:703, paragraph 15).
|
17. It is to be recalled in respect of those submissions that the Charter’s field of application so far as concerns action of the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing European Union law.
|
20 The proper time for a defendant to have an opportunity to defend himself is the time at which proceedings are commenced. The possibility of having recourse, at a later stage, to a legal remedy against a judgment given in default of appearance, which has already become enforceable, cannot constitute an equally effective alternative to defending proceedings before judgment is given (see Case C-123/91 Minalmet v Brandeis [1992] ECR I-5661, paragraph 19).
|
22. Any person is thus entitled to claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 101 TFEU ( Manfredi and Others EU:C:2006:461 paragraph 61, and Otis and Others EU:C:2012:684, paragraph 43).
|
61. It follows that any individual can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 81 EC.
|
29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
|
28. However, according to settled case-law of the Court, Member States have a legitimate interest in taking appropriate steps to protect their financial interests, and the prevention of tax evasion, avoidance and abuse is an objective recognised and encouraged by Directive 2006/112 (see, in particular, Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraph 71; Case C-285/09 R. [2010] ECR I‑12605, paragraph 36; and Case C-525/11 Mednis [2012] ECR I-0000, paragraph 31).
|
36. In order to answer that question, it must be observed, as a preliminary point, that the prevention of potential tax evasion, avoidance and abuse is an objective which is recognised and encouraged by the Sixth Directive (see, in particular, Joined Cases C‑487/01 and C‑7/02 Gemeente Leusden and Holin Groep [2004] ECR I‑5337, paragraph 76, and Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 71).
|
6 In the first place it should be stated that the definition of "undertaking" within the meaning of Article 15 of Regulation No 3820/85 must be considered in the light of the system established by the regulation and its aims. In that respect, it may be seen from the 27th recital to the regulation that the Council wished to emphasize "the importance of and the need for compliance with this regulation by employers and drivers".
|
25
So far as concerns the financing of the cost of management and disposal of urban waste, inasmuch as a service provided on a collective basis to a body of ‘holders’ is involved, the Member States are obliged, under Article 15 of Directive 2008/98, to ensure that, in principle, all the users of that service, in their capacity as ‘holders’ within the meaning of Article 3 of that directive, collectively bear the overall cost of disposing of the waste (see, by analogy, judgment of 16 July 2009, Futura Immobiliare and Others, C‑254/08, EU:C:2009:479, paragraph 46).
|
46. So far as concerns the financing of the cost of management and disposal of urban waste, inasmuch as a service provided on a collective basis to a body of ‘holders’ is involved, the Member States are obliged, under Article 15(a) of Directive 2006/12, to ensure that, in principle, all the users of that service, in their capacity as ‘holders’ within the meaning of Article 1 of the directive, collectively bear the overall cost of disposing of the waste.
|
29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
|
25. The deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, in particular, Gabalfrisa and Others , paragraph 44; Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraph 78; and Mahagében and Dávid , paragraph 39).
|
39. The deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever the purpose or results of those activities, provided that they are themselves subject in principle to VAT (see, inter alia, Gabalfrisa and Others , paragraph 44; Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraph 78; Kittel and Recolta Recycling , paragraph 48; and Case C-438/09 Dankowski [2010] ECR I-14009, paragraph 24).
|
7. Under Article 88 of the Regio Decreto No 773, Testo Unico delle Leggi di Pubblica Sicurezza (Royal Decree No 773 approving a single text of the laws on public security), of 18 June 1931 (GURI No 146 of 26 June 1931, hereinafter " the Royal Decree" ), no licence is to be granted for the taking of bets, with the exception of bets on races, regatta, ball games or similar contests where the taking of the bets is essential for the proper conduct of the competitive event.
|
70. Having regard to that context, the Court finds that the contested decision could be reasoned in a summary manner (Case 73/74 Groupement des fabricants de papiers peints de Belgique v Commission [1975] ECR 1491, paragraph 31; Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 105), and that therefore sufficient grounds were stated for the contested decision (C-301/96 Germany v Commission , paragraphs 92 and 93).
|
93. In the present case, although the reasoning is summary, the contested decision was adequately reasoned.
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
61
In that judgment, the Court held that, since point 15 of Annex III to that directive permits Member States to apply a reduced rate of VAT not to all supplies of services related to social wellbeing, but only to those provided by organisations which meet the dual requirement of being themselves devoted to social wellbeing and being engaged in welfare or social security work, the intention of the European Union legislature to make the option of applying a reduced rate refer only to supplies of services provided by organisations meeting that dual requirement would be frustrated if a Member State were free to classify private profit-making entities as organisations within the meaning of point 15 merely because those entities provide, inter alia, services related to social wellbeing (see, to that effect, judgment of 17 June 2010 in Commission v France, C‑492/08, EU:C:2010:348, paragraphs 43 and 44).
|
43. In that regard, it is clear from the wording of point 15 that it permits Member States to apply a reduced rate of VAT not to all supplies of services related to social wellbeing, but only to services provided by organisations which meet the dual requirement of being themselves devoted to social wellbeing and being engaged in welfare or social security work.
|
59 However, the fact that such a contract does not fall within the scope of Directive 93/38 does not preclude the Court from helping the national court which has sent it a series of questions for a preliminary ruling. To that end, the Court may take into consideration other factors in making an interpretation which may assist the determination of the main proceedings.
|
22. In view of the nature of the analysis to be carried out, it is for the national court to classify the activity at issue in the main proceedings in the light of the criterion adopted above ( Comune di Carpaneto Piacentino and Others , cited above, paragraph 16; Case C-4/89 Comune di Carpaneto Piacentino and Others [1990] ECR I‑1869, paragraph 11; and Fazenda Pública , paragraph 23).
|
16 It follows that the bodies governed by public law referred to in the first subparagraph of Article 4(5 ) of the Sixth Directive engage in activities "as public authorities" within the meaning of that provision when they do so under the special legal regime applicable to them . On the other hand, when they act under the same legal conditions as those that apply to private traders, they cannot be regarded as acting "as public authorities ". It is for the national court to classify the activity at issue in the light of that criterion .
|
18. Il importe tout d’abord de souligner que, lorsque la Cour est saisie d’un renvoi préjudiciel en matière de classement tarifaire, sa fonction consiste davantage à éclairer la juridiction nationale sur les critères dont la mise en œuvre permettra à cette dernière de classer correctement les produits en cause dans la NC qu’à procéder elle-même à ce classement, et ce d’autant plus qu’elle ne dispose pas nécessairement de tous les éléments indispensables à cet égard. Ainsi, la juridiction nationale apparaît en tout état de cause mieux placée pour procéder au classement en question (voir arrêts Proxxon, C‑500/04, EU:C:2006:111, point 23; Digitalnet e.a., C‑320/11, C‑330/11, C‑382/11 et C‑383/11, EU:C:2012:745, point 61, et ordonnance Mineralquelle Zurzach, C‑139/14, EU:C:2014:2313, point 28).
|
40
It follows from the Court’s case-law that the purpose of that provision is to ensure equal treatment as between a taxable person who applies goods for his own private use or for that of his staff, on the one hand, and a final consumer who acquires goods of the same type, on the other (see, to that effect, judgment of 17 July 2014, BCR Leasing IFN, C‑438/13, EU:C:2014:2093, paragraph 23 and the case-law cited).
|
23. It should be recalled, first of all, that under Article 16 of the VAT Directive certain transactions for which no real consideration is received by the taxable person are treated as supplies of goods effected for consideration subject to VAT. According to well-established case-law, the purpose of that provision is to ensure equal treatment as between a taxable person who applies goods for his own private use or for that of his staff, on the one hand, and a final consumer who acquires goods of the same type, on the other (see, to that effect, judgment in EMI Group , C‑581/08, EU:C:2010:559, paragraph 17 and the case-law cited).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
18. Having regard to that aim and those conditions for its grant, such an allowance is covered by Article 4(4) of Regulation No 1408/71, such that it is excluded from the material scope of that regulation (see, in that regard, Case 9/78 Gillard and Caisse régionale d’assurance maladie du Nord-Est [1978] ECR 1661, paragraph 13, and Case 207/78 Even and ONPTS [1979] ECR 2019, paragraphs 12 to 14).
|
12IT IS CLEAR FROM THE FILE THAT THE ESSENTIAL OBJECTIVE OF THE BENEFIT GRANTED UNDER THE NATIONAL PROVISIONS IN QUESTION IS TO OFFER TO BELGIAN WORKERS WHO FOUGHT IN THE ALLIED FORCES BETWEEN 10 MAY 1940 AND 8 MAY 1945 AND SUFFER INCAPACITY FOR WORK ATTRIBUTABLE TO AN ACT OF WAR A TESTIMONY OF NATIONAL RECOGNITION FOR THE HARDSHIPS SUFFERED DURING THAT PERIOD AND TO GRANT THEM , BY INCREASING THE RATE OF THE EARLY RETIREMENT PENSION , A BENEFIT BY REASON OF THE SERVICES THUS RENDERED TO THEIR COUNTRY .
|
46. The same conclusion applies where such transactions, without that taxable person knowing or having any means of knowing, are carried out in connection with fraud committed by the seller.
|
42. The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (Baustahlgewebe , paragraph 29, and Limburgse Vinyl Maatschappij and Others , cited above, paragraph 187).
|
29 It must first be stated that such a duration is, at first sight, considerable. However, the reasonableness of such a period must be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (see, by analogy, the judgments of the European Court of Human Rights in the cases of Erkner and Hofauer of 23 April 1987, Series A No 117, § 66; Kemmache of 27 November 1991, Series A No 218, § 60; Phocas v France of 23 April 1996, Recueil des arrêts et décisions 1996-II, p. 546, § 71, and Garyfallou AEBE v Greece of 27 September 1997, Recueil des arrêts et décisions 1997-V, p. 1821, § 39).
|
54
Secondly, it must be recalled that the possibility of delegating powers provided for in Article 290 TFEU aims to enable the legislature to focus on the essential elements of a piece of legislation and on the non-essential elements in respect of which it deems it appropriate to legislate, while entrusting the Commission with the task of ‘supplementing’ certain non-essential elements of the legislative act adopted or ‘amending’ such elements in the context of a delegation conferred on it.
|
38. It is settled case-law that the wording used in one language version of a provision of European Union law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement for uniform application of European Union law. Where there is divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see Case C‑372/88 Cricket St Thomas [1990] ECR I‑1345, paragraphs 18 and 19; Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 16; and Case C‑239/07 Sabatauskas and Others [2008] ECR I‑7523, paragraphs 38 and 39).
|
19 As the Court stated in its judgment of 5 December 1967 in Case 19/67 Sociale Verzekeringsbank v Van der Vecht (( 1967 )) ECR 345, the need for a uniform interpretation of Community regulations means that a particular provision should not be considered in isolation but in cases of doubt should be interpreted and applied in the light of the other languages . In its judgment of 27 October 1977 in Case 30/77 Regina v Bouchereau (( 1977 )) ECR 1999, the Court also stated that the different language versions of a Community text must be given a uniform interpretation and hence, in the case of divergence between the language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part .
|
60. That subsequent communication may take the form not only of an express statement of the reasons but also of the making available of relevant information and documents in response to the request made (see Mellor , paragraph 60).
|
64. In that regard, the Court has consistently held that the principle of freedom of movement for workers must be given a broad interpretation (see, to that effect, Antonissen , cited above, paragraph 11, and Case C‑344/95 Commission v Belgium [1997] ECR I‑1035, paragraph 14), whereas derogations from that principle must be interpreted strictly (see, to that effect, Case 41/74 Van Duyn [1974] ECR 1337, paragraph 18; Case 67/74 Bonsignore [1975] ECR 297, paragraph 6; Kempf , cited above, paragraph 13; and Case C-357/98 Yiadom [2000] ECR I-9265, paragraph 24).
|
14 The Court had consistently held that the principle of freedom of movement for workers laid down in Article 48(1) to (3) of the Treaty forms one of the foundations of the Community and that, consequently, the provisions laying down that freedom must be given a broad interpretation (see, in particular, Antonissen, paragraph 11).
|
78 For one thing, it seeks to achieve the aim of ensuring that there is sufficient and permanent access to a balanced range of high-quality hospital treatment in the State concerned.
|
35. It must be pointed out that, in assessing the interests of the service and the qualifications and merits of the candidates to be taken into consideration in making a promotion decision pursuant to Article 45 of the Staff Regulations, the appointing authority possesses a wide discretion, and in that connection the Community Court's review must be confined to the question whether, having regard to the various considerations which have influenced the administration in making its assessment, the latter has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The Community Court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority (see Case 324/85 Bouteiller v Commission [1987] ECR 529, paragraph 6).
|
6 IN THAT REGARD IT MUST FIRST BE STRESSED THAT, IN ASSESSING THE INTERESTS OF THE SERVICE AND THE QUALIFICATIONS AND MERITS OF THE CANDIDATES TO BE TAKEN INTO CONSIDERATION IN MAKING A PROMOTION DECISION PURSUANT TO ARTICLE 45 OF THE STAFF REGULATIONS OF OFFICIALS, THE APPOINTING AUTHORITY POSSESSES A WIDE DISCRETION, AND IN THAT CONNECTION THE COURT' S REVIEW MUST BE CONFINED TO THE QUESTION WHETHER, HAVING REGARD TO THE VARIOUS CONSIDERATIONS WHICH HAVE INFLUENCED THE ADMINISTRATION IN MAKING ITS ASSESSMENT, THE LATTER HAS REMAINED WITHIN REASONABLE BOUNDS AND HAS NOT USED ITS POWER IN A MANIFESTLY INCORRECT WAY . THE COURT CANNOT THEREFORE SUBSTITUTE ITS ASSESSMENT OF THE QUALIFICATIONS AND MERITS OF THE CANDIDATES FOR THAT OF THE APPOINTING AUTHORITY .
|
43. En effet, dès lors que, aux termes de la loi de 2009, ce repos compensateur peut faire l’objet d’un report jusqu’à une semaine à compter du jour de la réalisation de la garde active, y compris lorsque le médecin a déjà travaillé pendant 24 heures consécutives sur le lieu de travail, ledit repos ne saurait être regardé comme une «période équivalente de repos compensateur», au sens de l’article 17, paragraphe 2, de la directive 2003/88, puisque, comme l’a jugé la Cour dans l’arrêt Jaeger (C‑151/02, EU:C:2003:437, point 94), une telle période doit succéder immédiatement au temps de travail qu’elle est censée compenser.
|
37
Third, in accordance with Article 65(1) and (2) of Regulation No 207/2009, the General Court has jurisdiction to conduct a full review of the legality of EUIPO’s assessment of the particulars submitted by an applicant in order to establish the content of the national law whose protection he claims (see, to that effect, judgments of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 52, and of 27 March 2014, OHIM v National Lottery Commission, C‑530/12 P, EU:C:2014:186, paragraph 36).
|
52. Secondly, according to Article 63(2) of Regulation No 40/94, actions may be brought before the General Court against decisions of the Boards of Appeal on grounds of infringement of the Treaty, of Regulation No 40/94 or of any rule of law relating to their application. It follows from this, as the Advocate General stated in points 61 to 67 of her Opinion, that the General Court has jurisdiction to conduct a full review of the legality of OHIM’s assessment of the particulars submitted by an applicant in order to establish the content of the national law whose protection he claims.
|
37 Moreover, the fact that the Association Agreement is intended essentially to promote the economic development of the Czech Republic and therefore involves an imbalance in the obligations assumed by the Community towards the non-member country concerned is not such as to prevent recognition by the Community of the direct effect of certain provisions of that Agreement (see, to that effect, Sürül, paragraph 72).
|
24
By the second part of the second ground, NIOC cites paragraph 48 of the judgment in Parliament v Council (C‑130/10, EU:C:2012:472), which states that the procedures provided for in Articles 75 TFEU and 215 TFEU are incompatible, and argues that the same is true for the procedures provided for in Articles 215 TFEU and 291(2) TFEU. As regards the latter provision, it does not specify the procedure for the adoption of acts, so that it could not be used as a substitute for Article 215 TFEU. In any case, if those two provisions of the FEU Treaty were to be considered interchangeable, the result would be two different sets of rules for adopting restrictive measures, giving rise to inequality between the persons concerned by such measures, which would infringe the principle of equality of treatment provided for in Article 20 of the Charter of Fundamental Rights of the European Union.
|
48. Differences of that kind are such as to render those procedures incompatible.
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
20 In that connection, it must be borne in mind that a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. It is not necessary to find that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have such an effect (see, in particular and most recently, Case C-237/94 O' Flynn v Adjudication Officer [1996] ECR I-0000, paragraphs 20 and 21).
The complaint concerning grant of the tideover allowance
|
21 It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have such an effect. Further, the reasons why a migrant worker chooses to make use of his freedom of movement within the Community are not to be taken into account in assessing whether a national provision is discriminatory. The possibility of exercising so fundamental a freedom as the freedom of movement of persons cannot be limited by such considerations, which are purely subjective.
|
68. It should be recalled that, in the context of a request for a preliminary ruling under Article 267 TFEU, the Court may interpret the law of the European Union only within the limits of the powers conferred on it (see Case C-400/10 PPU McB. [2010] ECR I-8965, paragraph 51, and order of the Court of 6 July 2012 in Case C-16/12 Hermes Hitel és Faktor , not published in the ECR, paragraph 13).
|
33. First of all, it should be noted that Article 9(1) of the Regulation does not make any distinction on the basis of whether the third party is the proprietor of a Community trade mark or not. Thus, that provision grants the proprietor of a Community trade mark an exclusive right to prevent ‘any third party’, not having its consent, from using, in the course of trade, any signs liable to infringe its mark (see, by analogy, Case C-488/10 Celaya Emparanza y Galdos Internacional [2012] ECR, paragraphs 33 and 34).
|
34. Thus, that provision states that a registered Community design is to confer on its holder the exclusive right to use it and to prevent ‘any third party’ not having his consent from using it.
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
33. It follows from case-law which is now well established that the Member States must implement the amended directive, in the same way as Directive 85/337, in a manner which fully corresponds to its requirements, having regard to its fundamental objective which, as is clear from Article 2(1), is that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to an assessment with regard to their effects (see, to that effect, Case C-287/98 Linster [2000] ECR I-6917, paragraph 52, and Case C-486/04 Commission v Italy [2006] ECR I‑11025, paragraph 36).
|
36. The Member States must implement Directive 85/337 in a manner which fully corresponds to its requirements, having regard to its fundamental objective which, as is clear from Article 2(1), is that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to an assessment with regard to their effects (see, to that effect, Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 52).
|
51. It follows that, at the time of the Directive’s adoption, disparities existed between national rules on advertising and sponsorship in respect of tobacco products which justified intervention by the Community legislature.
|
21. As a preliminary point, it must be noted, first, that, as regards the interpretation of Article 4(1) of the Rome II Regulation, the need for a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union (see, to that effect, judgment in in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 37). In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment in Lanigan , C‑237/15 PPU, EU:C:2015:474, paragraph 35 and the case-law cited).
|
37. According to settled case-law, the need of the uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose of the legislation in question (see, in particular, Case C‑279/12 Fish Legal and Shirley EU:C:2013:853, paragraph 42).
|
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, arrêts du 19 juin 2003, Commission/France, C‑161/02, Rec. p. I‑6567, point 6, et du 26 avril 2007, Commission/Italie, C‑135/05, Rec. p. I‑3475, point 36).
|
22. As far as concerns social security benefits the Court has, on several occasions, discussed the factors to be taken into consideration for the purposes of ascertaining the legal nature of such benefits. Thus, the Court has stated that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia , Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14, and Case C-78/91 Hughes [1992] ECR I-4839, paragraph 15).
|
14 IT FOLLOWS THAT AN ALLOWANCE LIKE THE ONE AT ISSUE , BEING A GENERAL SOCIAL BENEFIT , CANNOT BE CLASSIFIED UNDER ONE OF THE BRANCHES OF SOCIAL SECURITY LISTED IN ARTICLE 4 ( 1 ) OF REGULATION NO 1408/71 AND THEREFORE DOES NOT CONSTITUTE A SOCIAL SECURITY BENEFIT WITHIN THE SPECIFIC MEANING OF THE REGULATION .
|
68. With regard, thirdly, to the activities carried out by notaries in divorce matters, it must be noted that, in accordance with Articles 325 and 327 of the Law on the notarial profession, a notary has powers to dissolve a marriage where the spouses have expressed their agreement on the principle of the divorce and where, if they have a child in common or jointly own a property, they have concluded a prior contract concerning the custody of the child, the arrangements for visiting rights and the means necessary for its maintenance or the division of the property.
|
45. In its case-law on equal treatment in the area of employment and occupation, the Court has already held that the definition of ‘disability’ must be understood, for the purposes of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) read in the light of the UN Convention on Disabilities, as long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers (Joined Cases C‑335/11 and C‑33711 HK Danmark EU:C:2013:222, paragraphs 37 to 39; Case C‑312/11 Commission v Italy E U:C:2013:446, paragraph 56; and Case C‑363/12 Z EU:C:2014:159, paragraph 76).
|
38. Having regard to the considerations set out in paragraphs 28 to 32 above, the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.
|
53. Lastly, the appellants challenge the case-law on which the General Court relied, which is based on the Commission’s discretion. They take the view that the General Court failed to examine whether the criteria used by the Commission to establish the gravity of the cartel were pertinent and adequate.
|
50. Fourthly, whilst it is true that, in paragraph 81 of the judgment in Commission v Germany , the Court upheld the complaints relied on by the Commission and alleging infringement of Article 63(1) TFEU, that fact cannot, in the absence of an express contrary indication, be treated as amounting to a finding by the Court that Paragraph 4(3) of the VW Law constitutes, on its own, a restriction on the free movement of capital.
|
81. In the light of all the foregoing, the complaints relied on by the Commission alleging breach of Article 56(1) EC must be upheld.
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
71. It follows from the case‑law (see, in particular, Dansk Rørindustri and Others v Commission , paragraphs 240 to 242) that, whereas the basic amount of the fine is set according to the infringement, its gravity is determined by reference to numerous other factors, in respect of which the Commission has a wide discretion. To take into account aggravating circumstances when setting the fine is consistent with the Commission’s task of ensuring compliance with the competition rules.
|
242. 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 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 (see Musique Diffusion française and Others v Commission , paragraph 129).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
53. However, it must be pointed out that the substantive rules of Regulation No 4064/89, in particular Article 2, confer on the Commission a certain discretion, especially with respect to assessments of an economic nature, and that, consequently, review by the Community judicature of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the discretionary margin implicit in the provisions of an economic nature which form part of the rules on concentrations (Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraphs 223 and 224, and Case C-12/03 P Commission v Tetra Laval [2005] ECR I-987, paragraph 38).
|
224 Consequently, review by the Community judicature of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the discretionary margin implicit in the provisions of an economic nature which form part of the rules on concentrations.
|
29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
|
90
Next, whilst it is true that recital 5 of Regulation No 384/96 states that the language of the WTO Anti-Dumping Agreement should be brought into EU legislation ‘as far as possible’, that expression must be understood as meaning that, even if the EU legislature intended to take into account the rules of that agreement when adopting Regulation No 384/96, it did not, however, show the intention of transposing each of those rules in that regulation (judgment in Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 52).
|
52. Nor is the finding called in question by the fact that recital 5 of the basic regulation states that the rules of the Anti-Dumping Agreement should be brought into EU legislation ‘as far as possible’. As the Advocate General observed in points 44 and 46 of her Opinion, that expression must be understood as meaning that even if the EU legislature intended to take into account the rules of the Anti-Dumping Agreement when adopting the basic regulation, it did not, however, show the intention of transposing all those rules in that regulation. The conclusion that the purpose of Article 2(7) of the basic regulation is to implement the particular obligations created by Article 2 of the Anti-Dumping Agreement can therefore in no case be based in isolation on the wording of recital 5 of the basic regulation.
|
18. As the Court held in Bötel , paragraph 14, although compensation such as that at issue in the main proceedings does not derive as such from the contract of employment, it is nevertheless paid by the employer by virtue of legislative provisions and under a contract of employment. Staff committee members must necessarily be employees of the undertaking, to be able to serve on that undertaking ' s staff committee.
|
27 According to settled case-law, although advantages in the nature of social security benefits are not in principle alien to the concept of pay, that concept, as defined in Article 119 of the Treaty, cannot be extended to encompass social security schemes or benefits - such as, for example, retirement pensions - which are directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned and which are obligatorily applicable to general categories of employees. Such schemes give employees the benefit of a statutory scheme, to the financing of which workers, employers and, possibly, the public authorities contribute to an extent that is determined not so much by the employment relationship between the employer and the worker as by considerations of social policy (see, inter alia, Case 80/70 Defrenne [1971] ECR 445, paragraphs 7 and 8; Case 170/84 Bilka [1986] ECR 1607, paragraphs 17 and 18; Case C-262/88 Barber [1990] ECR I-1889, paragraphs 22 and 23; and Case C-7/93 Beune [1994] ECR I-4471, paragraph 24).
|
17 LA COUR A DONNE A CETTE QUESTION UNE REPONSE NEGATIVE , EN CONSIDERANT QUE , SI DES AVANTAGES PARTICIPANT DE LA NATURE DE PRESTATIONS DE SECURITE SOCIALE NE SONT PAS , EN PRINCIPE , ETRANGERS A LA NOTION DE REMUNERATION AU SENS DE L ' ARTICLE 119 , ON NE SAURAIT CEPENDANT INCLURE DANS CETTE NOTION LES REGIMES OU PRESTATIONS DE SECURITE SOCIALE , NOTAMMENT LES PENSIONS DE RETRAITE , DIRECTEMENT REGLES PAR LA LOI , A L ' EXCLUSION DE TOUT ELEMENT DE CONCERTATION AU SEIN DE L ' ENTREPRISE OU DE LA BRANCHE PROFESSIONNELLE INTERESSEE , ET OBLIGATOIREMENT APPLICABLES A DES CATEGORIES GENERALES DE TRAVAILLEURS .
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
47. First of all, it should be recalled that, according to settled case-law, while direct taxation, as EU law currently stands, falls within the competence of the Member States, they must none the less exercise that competence consistently with EU law (see, inter alia, Case C-155/09 Commission v Greece [2011] ECR I-65, paragraph 39; Case C-10/10 Commission v Austria [2011] ECR I-5389, paragraph 23; Case C-250/08 Commission v Belgium [2011] ECR I-12341, paragraph 33; and Case C-253/09 Commission v Hungary [2011] ECR I-12391, paragraph 42).
|
33. It is necessary to recall at the outset that, according to settled case-law, while direct taxation falls within the competence of the Member States, the latter must none the less exercise that competence in a manner consistent with European Union law (Case C‑334/02 Commission v France [2004] ECR I-2229, paragraph 21; Case C‑155/09 Commission v Greece [2011] ECR I-0000, paragraph 39; and Case C‑10/10 Commission v Austria [2011] ECR I-0000, paragraph 23).
|
36 The file and the pleadings show that the crucial point is whether Protocol No 2 is intended only to clarify the limitation of the effects in time of the Barber judgment, as set out above, or whether it has wider scope.
|
26. It follows from those judgments, Offermanns at paragraph 49 and Humer at paragraph 33, that such advances are family benefits within the meaning of Article 4(1)(h) of Regulation No 1408/71.
|
33 The Court accordingly ruled, in paragraph 49 of Offermanns, that a benefit such as an advance on maintenance payments provided for by the UVG does constitute a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71.
The scope ratione personae of Regulation No 1408/71
|
38. Dans un pareil cas, lorsqu’une marque tridimensionnelle incorpore un élément figuratif qui ne consiste pas en un signe indépendant de l’aspect des produits, mais ne constitue, dans l’esprit du consommateur, qu’une configuration décorative, cette marque ne saurait, contrairement à ce que soutient la requérante, être appréciée selon les critères valables pour les marques verbales ou figuratives, qui consistent en un signe indépendant de l’aspect des produits qu’elles désignent.
|
31. That criterion corresponds to the idea on which the system of protection implemented by the directive is based, namely that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (see, inter alia, Case C‑618/10 Banco Español de Crédito [2012] ECR I‑0000, paragraph 39, and Case C‑472/11 Banif Plus Bank [2013] ECR I‑0000, paragraph 19).
|
39. For the purpose of replying to that question, it is appropriate to note, first, that the system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraph 25; Case C-168/05 Mostaza Claro [2006] ECR I-10421, paragraph 25; and Case C-40/08 Asturcom Telecomunicaciones [2009] ECR I-9579, paragraph 29).
|
18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
|
37 A titre liminaire, il convient de relever que, contrairement à ce que prétendent FCTL et Meatal, il n'y a pas lieu de distinguer la présente affaire de celle qui a été jugée par la Cour dans l'arrêt Anglo Irish Beef Processors International e.a., précité, ni en ce que la force majeure résulterait d'un acte communautaire ni en ce qu'il n'aurait pas existé d'autre marché pour la viande originaire du Royaume-Uni.
|
32. Moreover, as the Advocate General observed in point 7 of his Opinion, the fifth recital in the preamble to Regulation No 565/80 expressly states that a security is to be lodged in order to guarantee the reimbursement of a sum not less than the amount paid where it is subsequently established that there was no right to the export refund or that the products or goods were not actually exported from the Community within the time-limits laid down.
|
54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
|
65. In that respect, it is sufficient to note that, in accordance with consistent case-law, an objective of a purely economic nature cannot justify a restriction on a fundamental freedom guaranteed by the Treaty (see, to that effect, Case C‑120/95 Decker [1998] ECR I‑1831, paragraph 39; Verkooijen , paragraph 48; Case C‑171/08 Commission v Portugal [2010] ECR I‑0000, paragraph 71).
|
71. Similarly, as regards the need to prevent a possible disruption of the capital market, it is sufficient to note, as the Commission does, that this objective constitutes an economic ground which, in accordance with settled case‑law, cannot justify a restriction on the free movement of capital (see, inter alia, Commission v Portugal , paragraph 52).
|
35. The national court stated that the reason for its request that the reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 104b of the Rules of Procedure was that contact between the child and her father had been broken. Consequently, a delayed decision on enforcement of the judgment of the Tribunale per i Minorenni di Venezia of 10 July 2009 ordering return of the child to Italy would exacerbate the deterioration of the relationship between father and child and thereby increase the risk of psychological harm if the child were sent back to Italy.
|
22. It is also necessary to point out that, according to settled case‑law, where it is necessary to interpret a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the EC Treaty and the general principles of Community law (Case 218/82 Commission v Council [1993] ECR 4063, paragraph 15; Joined Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, paragraph 21, Case C‑314/89 Rauh [1991] ECR I‑1647, paragraph 17; Case C‑98/91 Herbrink [1994] ECR I‑223, paragraph 9; and Borgmann , paragraph 30).
|
30. Furthermore, where it is necessary to interpret a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the EC Treaty and the general principles of Community law (Case C-98/91 Herbrink [1994] ECR I-223, paragraph 9) and, more specifically, with the principle of legal certainty.
|
37 It must be stated in regard to this point that the specific manner in which the service is performed, electronically, automatically or manually, does not affect the application of the exemption. The provisions in question make no distinction in this regard. Accordingly, the mere fact that a service is performed entirely by electronic means does not in itself prevent the exemption from applying to that service. If, on the other hand, the service entails only technical and electronic assistance to the person performing the essential, specific functions for the transactions covered by points 3 and 5 of Article 13B(d), it does not fulfil the conditions for exemption. That conclusion follows, however, from the nature of the service and not from the way in which it is performed.
|
37. Further, as is clear from recital (6) in the preamble to Directive 98/5, by that directive the EU legislature sought, inter alia, to put an end to the differences in national rules on the conditions for registration with the competent authorities, which gave rise to inequalities and obstacles to freedom of movement (see the judgment in Commission v Luxembourg, C‑193/05, EU:C:2006:588, paragraph 34, and Wilson , EU:C:2006:587, paragraph 64).
|
34. As is clear from recital (6) in the preamble to Directive 98/5, by that directive, the Community legislature sought to put an end to the differences in national rules on the conditions for registration with the competent authorities which gave rise to inequalities and obstacles to freedom of movement (see also, to that effect, Luxembourg v Parliament and Council , paragraph 64).
|
32. Il en va ainsi même si ce risque est très limité, pourvu que le pouvoir adjudicateur ait transféré au concessionnaire l’intégralité ou, tout au moins, une part significative du risque d’exploitation qu’il encourt (voir, en ce sens, arrêts Eurawasser, C-206/08, EU:C:2009:540, point 77, ainsi que Norma-A et Dekom, C-348/10, EU:C:2011:721, point 45).
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.