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50
Nevertheless, it should be recalled that, first, Article 266 TFEU requires the institutions which adopted the act annulled to take the necessary measures to comply with the judgment annulling or declaring invalid its measure (judgment in Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 50) and, second, that the annulment of a Union act does not necessarily affect the preparatory acts thereof (judgment in Limburgse Vinyl Maatschappij v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 73).
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73 Annulment of a Community measure does not necessarily affect the preparatory acts (Spain v Commission, cited above, paragraph 32), since the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred (Spain v Commission, paragraph 31).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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Il résulte de ces éléments que, les visas du règlement litigieux indiquant clairement la base juridique habilitant le Conseil
à adopter des mesures restrictives à l’égard d’une personne ou d’une entité, à savoir l’article 46, paragraphe 2, du règlement
n° 267/2012, il n’était pas nécessaire, contrairement à ce que soutiennent NIOC e.a., que soit indiquée, dans cette disposition,
la forme juridique des actes pouvant être adoptés par le Conseil sur son fondement pour que la référence à ladite disposition
constitue une motivation suffisante de la base juridique du règlement litigieux (arrêt du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 19). Il s’ensuit que le Tribunal n’a pas
commis d’erreur de droit à cet égard.
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19
It follows from the above that, the citations in the preamble to the contested regulation clearly indicating the legal basis empowering the Council to adopt restrictive measures against a person or entity, namely, Article 46(2) of Regulation No 267/2012, it was not necessary, contrary to what NIOC claims, to indicate, in that provision, the legal nature of the acts that may be adopted by the Council on the basis of that provision in order for the reference to that provision to constitute an adequate statement of the legal basis of the contested regulation. It follows that the General Court did not err in law in that regard.
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La différence existant entre la procédure au titre de l’article 215 TFUE et celle au titre de l’article 291, paragraphe 2,
TFUE répond, quant à elle, à une volonté d’établir une distinction, sur la base de critères objectifs, entre l’acte de base
et un acte d’exécution dans le domaine des mesures restrictives. Dans ce contexte, l’exigence, prévue à l’article 215, paragraphe
1, TFUE, relative à une proposition conjointe du haut représentant de l’Union pour les affaires étrangères et la politique
de sécurité et de la Commission constitue une condition inhérente à la procédure prévue à cette disposition, et non pas une
garantie procédurale qui devrait être reconnue, d’une manière générale, à toute personne ou entité faisant l’objet d’une inscription
sur une liste relative à des mesures restrictives, sur quelque fondement que ce soit. Partant, le fait que, dans le cadre
de l’exercice d’une compétence d’exécution fondée sur l’article 291, paragraphe 2, TFUE, l’adoption de mesures restrictives
ne soit pas, contrairement à ce qui est le cas dans le cadre de la procédure prévue à l’article 215, paragraphe 1, TFUE, subordonnée
à la présentation d’une telle proposition conjointe ne saurait être regardé comme une violation du principe d’égalité de traitement
en matière d’inscription sur une telle liste (arrêt du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 45).
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72. In accordance with settled case-law, the procedure provided for by Article 267 TFEU is a means of cooperation between the Court of Justice and national courts, by which the Court provides the national courts with the points of interpretation of European Union law which they need in order to decide the disputes before them (see, in particular, Case C-83/91 Meilicke [1992] ECR I‑4871, paragraph 22, and Case C‑313/07 Kitruna and Vigano [2008] ECR I-7907, paragraph 25).
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25. In that regard, it must be recalled that, in accordance with settled case‑law, the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts, by means of which the Court provides the national courts with the points of interpretation of Community law which they need in order to decide the disputes before them (see, in particular, Case C‑83/91 Meilicke [1992] ECR I‑4871, paragraph 22, and Case C‑380/01 Schneider [2004] ECR I-1389, paragraph 20).
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79. For one thing, it seeks to achieve the aim of ensuring that there is sufficient and permanent accessibility to a balanced range of high-quality hospital treatment in the State concerned.
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18
As a preliminary point, it should be noted that although Article 183 of the VAT Directive does not lay down any obligation to pay interest on a refund of overpaid VAT or the date from which such interest is payable, it cannot be concluded from that fact alone that that article must be interpreted as meaning that no control may be exercised under EU law over the procedures established by Member States for the refund of overpaid VAT (judgments of 12 May 2011, Enel Maritsa Iztok 3, C‑107/10, EU:C:2011:298, paragraphs 27 and 28, and of 24 October 2013, Rafinăria Steaua Română, C‑431/12, EU:C:2013:686, paragraph 19).
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27. It is true, as pointed out by the Bulgarian Government, that, according to its wording, that provision does not lay down any obligation to pay interest on a refund of excess VAT or the date from which such interest is payable.
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39 A measure such as the prohibition on advertising at issue in the proceedings before that court, even if it is non-discriminatory, has a particular effect on the cross-border supply of advertising space, given the international nature of the advertising market in the category of products to which the prohibition relates, and thereby constitutes a restriction on the freedom to provide services within the meaning of Article 59 of the Treaty (see, in that regard, Alpine Investments, cited above, paragraph 35).
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82
In that connection, the contracting authority is justified in expressly setting out, in principle in the tender notice or the tender specifications, the requirement to provide evidence of specific capacities and practical arrangements by which the candidate/tenderer must demonstrate its suitability to be awarded and perform the contract concerned. Likewise, it is conceivable that, in specific circumstances, having regard to the nature of the works concerned and the subject matter and purpose of the contract, the contracting authority may lay down limits, in particular regarding the use of a limited number of economic operators, pursuant to Article 44(2) of Directive 2004/18 (see, to that effect, judgments of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraphs 39 to 41, and of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 90 and the case-law cited).
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41
Likewise, it is conceivable that, in specific circumstances, having regard to the nature and objectives of a particular contract, the capacities of a third party entity, which are necessary for the performance of a particular contract, cannot be transferred to the tenderer. Accordingly, in such circumstances, the tenderer may rely on those capacities only if the third party entity directly and personally participates in the performance of the contract concerned.
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43
The deduction rules thus established are intended to free the taxable person completely of the burden of the VAT accruing or paid in all its economic activities. The common system of VAT therefore ensures that all economic activities, whatever their purpose or results, provided that they are, in principle, themselves subject to VAT, are taxed in a neutral way (see judgments of 22 February 2001, Abbey National, C‑408/98, EU:C:2001:110, paragraph 24; of 6 February 2014, Fatorie, C‑424/12, EU:C:2014:50, paragraph 31; and of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 29).
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67. Before imposing supplementary requirements to cover differences between the education and training provided in the Member State of origin and that provided in an applicant’s host Member State, the competent national authorities must therefore assess whether the knowledge acquired by an applicant, including knowledge acquired in the host Member State, in the course of practical experience can be taken into account for the purpose of proving possession of the knowledge required by the latter (see, to that effect, Vlassopoulou , paragraph 20; Fernández de Bobadilla , paragraph 33; Case C‑313/01 Morgenbesser [2003] ECR I‑13467, paragraph 62; and Case C‑345/08 Peśla [2009] ECR I‑0000, paragraph 41).
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33 In that regard, the competent national authorities must assess whether the knowledge acquired by the candidate, either during a course of study or by way of practical experience, is sufficient to show possession of knowledge which is lacking (see, to that effect, the judgment in Vlassopoulou, cited above, paragraph 20).
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49. Next, even though Ms Danosa enjoyed a margin of discretion in the performance of her duties, she had to report on her management to the supervisory board and to cooperate with that board.
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31. In the absence of any unifying or harmonising European Union measures, Member States retain the power to define, by treaty or unilaterally, the criteria for allocating their powers of taxation, particularly with a view to eliminating double taxation (Case C‑336/96 Gilly [1998] ECR I‑2793, paragraphs 24 and 30; Case C‑307/97 Saint-Gobain ZN [1999] ECR I‑6161, paragraph 57; Case C‑379/05 Amurta [2007] ECR I‑9569, paragraph 17; and Case C‑194/06 Orange European Smallcap Fund [2008] ECR I‑3747, paragraph 32). It is for the Member States to take the measures necessary to prevent situations of double taxation by applying, in particular, the criteria followed in international tax practice (see Case C‑513/04 Kerckhaert and Morres [2006] ECR I‑10967, paragraph 23).
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24 The Member States are competent to determine the criteria for taxation on income and wealth with a view to eliminating double taxation - by means, inter alia, of international agreements - and have concluded many bilateral conventions based, in particular, on the model conventions on income and wealth tax drawn up by the Organisation for Economic Cooperation and Development (`OECD').
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58
Secondly, as regards the criterion relating to urgency, it is necessary, in accordance with the settled case-law of the Court, to take into account the fact that the person concerned in the case in the main proceedings is currently deprived of his liberty and that the question as to whether he may continue to be held in custody depends on the outcome of the dispute in the main proceedings. Moreover, the situation of the person concerned must be assessed as it stood at the time when consideration was given to whether the reference should be dealt with under the urgent preliminary ruling procedure (judgments of 10 August 2017, Tupikas, C‑270/17 PPU, EU:C:2017:628, paragraph 45 and the case-law cited, and of 10 August 2017, Zdziaszek, C‑271/17 PPU, EU:C:2017:629, paragraph 72 and the case-law cited).
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75. With regard to statements of figures relating to the calculation of fines, it is appropriate to point out that, however useful and desirable such figures may be, they are not essential to compliance with the duty to state reasons for a decision imposing fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulas alone, divest itself of its own power of assessment (Case C-291/98 P Sarrió v Commission [2000] ECR I-9991, paragraphs 75 to 77, and Limburgse Vinyl Maatschappij , paragraph 464).
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76 Admittedly, the Commission cannot, by a mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment. However, it may in its decision give reasons going beyond the requirements set out in paragraph 73 of this judgment, inter alia by indicating the figures which, especially in regard to the desired deterrent effect, influenced the exercise of its discretion when setting the fines imposed on a number of undertakings which participated, in different degrees, in the infringement.
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57. Under Article 13(2) TEU, the institutions are to practise mutual sincere cooperation.
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52. As regards Article 3(1)(c) of the Directive, the Court has recognised that this provision pursues an aim that is in the public interest, which requires that the signs and indications descriptive of the categories of goods or services for which registration is sought may be freely used by all (see Joined Cases C-108/97 and C-109/97 Windsurfing Chiemsee [1999] ECR I-2779, paragraph 25, and Joined Cases C-53/01 to C-55/01 Linde and Others [2003] ECR I-3161, paragraph 73).
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25 However, Article 3(1)(c) of the Directive pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the categories of goods or services in respect of which registration is applied for may be freely used by all, including as collective marks or as part of complex or graphic marks. Article 3(1)(c) therefore prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks.
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36. However, such considerations authorise the Court of First Instance only to find that there is uncertainty with regard to the exact extent of the damage claimed, but not to find that the very existence of the damage is uncertain.
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88. With regard, first, to the right to property of importers of third-country bananas, the Court has already held that that right is not undermined by the introduction of the Community quota and the rules for its subdivision. No economic operator can claim a right to property in a market share which he held at a time before the establishment of a common organisation of a market, since such a market share constitutes only a momentary economic position exposed to the risks of changing circumstances (see Case C‑280/93 Germany v Council [1994] ECR I‑4973, paragraph 79, and Case C‑122/95 Germany v Council [1998] ECR I‑973, paragraph 77).
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79 The right to property of traders in third-country bananas is not called into question by the introduction of the Community quota and the rules for its subdivision. No economic operator can claim a right to property in a market share which he held at a time before the establishment of a common organization of a market, since such a market share constitutes only a momentary economic position exposed to the risks of changing circumstances.
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30. Pursuant to Article 23(1) of Regulation No 4253/88, the Member States are to take, in order to guarantee completion of operations carried out by public or private promoters, the necessary measures in implementing the operations to verify on a regular basis that operations financed by the European Union have been properly carried out, to prevent and to take action against irregularities and to recover any amounts lost as a result of an irregularity or negligence (see Joined Cases C‑383/06 to C‑385/06 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others [2008] ECR I‑1561, paragraph 37).
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43. The fact that the legal secretaries at the Cour de cassation are appointed as a result of a competition, the subject-matter of which is determined in accordance with the requirements of the service, and which is valid for six years, is irrelevant to that assessment. The Court has already held that fact of having been successful in a procedure to select a predefined number of persons on the basis of a comparative assessment of the candidates rather than by application of absolute criteria, which confers a qualification the validity of which is strictly limited in time, cannot be regarded as a ‘professional qualification’ within the meaning of Article 3(1)(b) of Directive 2005/36 (see judgment in Rubino , C‑586/08, EU:C:2009:801, paragraph 32).
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32. It must be pointed out that the fact of having been successful in a procedure to select a predefined number of persons on the basis of a comparative assessment of the candidates rather than by application of absolute criteria, which confers a qualification the validity of which is strictly limited in time, cannot be regarded as a professional qualification within the meaning of Article 3(1)(b) of Directive 2005/36.
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28. Accordingly, that special rule — which lays down stricter conditions for being allowed to deduct business expenses than those laid down in the general rule and the scope of which has not been delimited with precision beforehand — is liable both to dissuade Belgian taxpayers from exercising their right to the freedom to provide services and from making use of the services of providers established in another Member State and to dissuade those providers from offering their services to recipients established in Belgium (see, to that effect, Case C-422/01 Skandia and Ramstedt [2003] ECR I-6817, paragraph 28 and the case-law cited).
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81. In view also of the importance which primary law accords to citizenship of the Union (see, inter alia, Case C-135/08 Rottmann [2010] ECR I-1449, paragraphs 43 and 56), it must be concluded that, in circumstances such as those at issue in the main proceedings, national legislation such as that described in the order for reference, to the extent that it (i) prevents citizens of the Union from asserting the right conferred on them by Article 21 TFEU to move and reside freely against absolute territorial prohibitions that have been adopted for an unlimited period and (ii) prevents administrative bodies from acting upon a body of case-law whereby the Court has confirmed the illegality, under EU law, of such prohibitions, cannot reasonably be justified by the principle of legal certainty and must therefore be considered, in this respect, to be contrary to the principle of effectiveness and to Article 4(3) TEU (see, by analogy, Fallimento Olimpiclub , paragraphs 30 and 31).
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56. Having regard to the importance which primary law attaches to the status of citizen of the Union, when examining a decision withdrawing naturalisation it is necessary, therefore, to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union. In this respect it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality.
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20. Moreover, that special rule of jurisdiction must be interpreted in the light, first, of recital 11 in the preamble to Regulation No 44/2001, according to which the rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor (see Case C-98/06 Freeport [2007] ECR I-8319, paragraph 36).
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66. Similarly, the Court has recognised that the Member States have the power to verify compliance with the national and European Union provisions in respect of the provision of services, and it has accepted that overriding reasons relating to the public interest which justify the substantive provisions of a Member State’s legislation may also justify measures necessary to monitor compliance with it (see, to that effect, the judgments in Arblade and Others , EU:C:1999:575, paragraph 38 and the case-law cited, and in dos Santos Palhota and Others , EU:C:2010:589, paragraph 48).
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38 However, overriding reasons relating to the public interest which justify the substantive provisions of a set of rules may also justify the control measures needed to ensure compliance with them (see, to that effect, Rush Portuguesa, cited above, paragraph 18).
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52
As regards, second, the objectives of Regulation No 604/2013, it is apparent from recital 9 thereof that, while it confirms the principles underlying Regulation No 343/2003, Regulation No 604/2013 is intended to make the necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection afforded applicants under that system, to be achieved, inter alia, by the judicial protection enjoyed by asylum seekers.
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24. Thus, the Court has held that, with regard to workers on sick leave which has been duly granted, the right to paid annual leave conferred by Directive 2003/88 on all workers may not be made subject by a Member State to a condition that the worker should actually have worked during the reference period laid down by that State ( Schultz-Hoff and Others , paragraph 41, and Case C‑282/10 Dominguez [2012] ECR, paragraph 20).
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20. Also, since Directive 2003/88 does not make any distinction between workers who are absent from work on sick leave during the reference period and those who have in fact worked in the course of that period (see Schultz-Hoff and Others , paragraph 40) it follows that, with regard to workers on sick leave which has been duly granted, the right to paid annual leave conferred by that directive on all workers cannot be made subject by a Member State to a condition that the worker has actually worked during the reference period laid down by that State ( Schultz‑Hoff and Others , paragraph 41).
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26. It thus appears from the wording of Article 21 of the Convention that it refers only to the applicants' respective claims in each of the sets of proceedings, and not to the defence which may be raised by a defendant.
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31. The right to paid annual leave, as laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union and in Article 7 of Directive 2003/88, has the dual purpose of enabling the worker both to rest from carrying out the work he is required to do under his contract of employment and to enjoy a period of relaxation and leisure (see Schultz-Hoff and Others , paragraph 25).
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25. It is common ground that the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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86. In this respect, the Court has had occasion to rule that the exception in the first paragraph of Article 45 EC does not extend to certain activities that are auxiliary or preparatory to the exercise of official authority (see, to that effect, Thijssen , paragraph 22; Commission v Spain , paragraph 38; Servizi Ausiliari Dottori Commercialisti , paragraph 47; Commission v Germany , paragraph 38; and Commission v Portugal , paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, Reyners , paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, Thijssen , paragraphs 21 and 22; Case C‑393/05 Commission v Austria , paragraphs 36 and 42; Commission v Germany , paragraphs 38 and 44; and Commission v Portugal , paragraphs 36 and 41), powers of constraint (see, to that effect, inter alia, Commission v Spain , paragraph 37) or powers of coercion (see, to that effect, Case C‑47/02 Anker and Others [2003] ECR I‑10447, paragraph 61, and Commission v Portugal , paragraph 44).
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41. In that regard, it should, none the less, be pointed out that the decision whether or not to certify roadworthiness, which essentially only records the results of the roadworthiness test, on the one hand, lacks the decision‑making independence inherent in the exercise of public authority powers and, on the other hand, is taken in the context of direct State supervision.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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Il est de jurisprudence constante que la légalité d’une décision en matière d’aides d’État doit être appréciée en fonction des éléments d’information dont la Commission pouvait disposer au moment où elle l’a arrêtée (arrêts du 15 avril 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, point 54, et du 22 décembre 2008, Régie Networks, C‑333/07, EU:C:2008:764, point 81). Ainsi, il ne peut être fait grief à la Commission de ne pas avoir pris en considération, dans le cadre de la procédure de contrôle des aides d’État, des éléments factuels qui n’ont pas été portés à sa connaissance en temps utile lors de cette procédure.
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54. In that regard, it is established case-law that the lawfulness of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (see, inter alia, Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 16; Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraph 168; and Case C-276/02 Spain v Commission [2004] ECR I‑8091, paragraph 31).
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86. Where a worker is absent from work because she is on maternity leave, the minimum protection required by Article 11(2) and (3) of Directive 92/85 does not therefore require that the person concerned should continue to receive full pay or the payment of the on-call duty allowance.
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56. It must be recalled that the fundamental rights guaranteed in the legal order of the European Union, including the Charter, are applicable in all situations governed by European Union law, but not outside such situations (see, to that effect, Case C‑617/10 Åkerberg Fransson [2013] ECR I‑0000, paragraph 19 and case-law cited).
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19. The Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law. On the other hand, if such legislation falls within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (see inter alia, to this effect, Case C-260/89 ERT [1991] I-2925, paragraph 42; Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 15; Case C-309/96 Annibaldi [2007] ECR I-7493, paragraph 13; Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 25; Case C-349/07 Sopropé [2008] ECR I-10369, paragraph 34; Case C-256/11 Dereci and Others [2011] ECR I-11315, paragraph 72; and Case C-27/11 Vinkov [2012] ECR, paragraph 58).
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37 On that point it must be noted, first, that the employer's duty to reduce workers' exposure to the carcinogen irrespective of the assessment of risks increases the protection of the latter's health and safety. Furthermore such a duty is confined to reinforcing the obligation laid down in Article 5 of Directive 90/394. It does not therefore undermine the coherence of Community action in the area of workers' health and safety.
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39 It is clear, however, from the judgments in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, Fisscher, cited above, paragraphs 17 to 24, and Case C-246/96 Magorrian and Cunningham v EHSSB and DHSS [1997] ECR I-7153, paragraphs 27 to 35, that the limitation in time of the effects of Article 119 resulting from both the Barber judgment and the Protocol concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions (see Case C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223, paragraph 19).
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20 The Court went on to hold that in the light of those provisions the Member States and the parties concerned were reasonably entitled to consider that Article 119 did not apply to pensions paid under contracted-out schemes and that derogations from the principle of equality between men and women were still permitted in that sphere (paragraph 43).
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464 Contrary to what the appellants claim, either expressly or in essence, that requirement does not oblige the Commission to indicate in its decision the figures relating to the method of calculating the fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment (Sarrió, cited above, paragraphs 76 and 80).
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Il résulte également de la jurisprudence de la Cour que, lorsqu’une question de fait ou de droit ne fait pas l’objet du litige
dont le Tribunal est saisi, il n’appartient pas à ce dernier de se prononcer sur cette question, sous peine de statuer ultra
petita. Par conséquent, tout constat à cet égard par le Tribunal constitue un obiter dictum prononcé au-delà des limites dudit
litige et ne tranche ni effectivement ni nécessairement un point de droit. Il est, dès lors, insusceptible d’être revêtu de
l’autorité de la chose jugée (voir, en ce sens, arrêt ThyssenKrupp Nirosta/Commission, C‑352/09 P, EU:C:2011:191, points 129
à 132).
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132. It follows that, since the lawfulness of the transfer of liability by the statement of 23 July 1997 had not been raised before the General Court, the finding in paragraph 62 of Krupp Thyssen Stainless and Acciai speciali Terni v Commission was an obiter dictum which went beyond the bounds of the dispute before the General Court and did not thus actually or necessarily decide a point of law. It cannot therefore be res judicata .
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117. Such rules reveal a function of banking foundations going beyond the simple placing of capital by an investor. They make possible the exercise of functions relating to control, but also to direction and financial support. They illustrate the existence of organic and functional links between the banking foundations and the banking companies, which is confirmed by the maintenance, particularly under a provision like Article 14 of Decree No 356/90, of supervision by the Minister for the Treasury.
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21. That legislation also produces a restrictive effect in relation to companies established in other Member States, inasmuch as it constitutes an obstacle to their raising capital in Austria. To the extent that revenue from capital originating in another Member State receives less favourable tax treatment than revenue from capital of Austrian origin, the shares of companies established in other Member States are, for investors living in Austria, less attractive than the shares of companies established in that Member State (see, to that effect, Verkooijen , paragraph 35, and Commission v France , paragraph 24).
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24 IT MUST FIRST BE NOTED THAT THE FACT THAT THE LAWS OF THE MEMBER STATES ON CORPORATION TAX HAVE NOT BEEN HARMONIZED CANNOT JUSTIFY THE DIFFERENCE OF TREATMENT IN THIS CASE . ALTHOUGH IT IS TRUE THAT IN THE ABSENCE OF SUCH HARMONIZATION , A COMPANY ' S TAX POSITION DEPENDS ON THE NATIONAL LAW APPLIED TO IT , ARTICLE 52 OF THE EEC TREATY 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 .
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111. In the light of the above considerations, Unicredito cannot therefore claim that the recipient of unlawful aid may rely on exceptional circumstances on the basis of which it might legitimately have expected the aid to be lawful (see Demesa and Territorio Histórico de Álava v Commission , cited above, paragraph 51).
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32 In that regard, the Court observes that, in the absence of coordination at Community level, the Member States may, subject to certain conditions, impose national measures pursuing a legitimate aim compatible with the Treaty and justified on overriding public interest grounds, which include the protection of consumers. They may thus, in certain circumstances, adopt or maintain measures constituting a barrier to freedom of movement. Article 57(2) of the Treaty authorises the Community to eliminate obstacles of that kind in order to make it easier for persons to take up and pursue activities as self-employed persons. When adopting measures to that end, the Community legislature is to have regard to the public interest pursued by the various Member States and to adopt a level of protection for that interest which seems acceptable in the Community (see, to that effect, Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraphs 16 and 17). It enjoys a measure of discretion for the purposes of its assessment of the acceptable level of protection.
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17 Consequently, the Member States may, in certain circumstances, adopt or maintain measures constituting an obstacle to free movement. Article 57(2) of the Treaty authorizes the Community to eliminate obstacles of that kind in particular by coordinating the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons. Since coordinating measures are concerned, the Community is to have regard to the public interest aims of the various Member States and to adopt a level of protection for that interest which seems acceptable in the Community.
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39. As a preliminary point, it should be noted that the Sixth Directive does not contain a rule generally exempting all services linked to the practice of sport and physical education (see, to that effect, Case C‑150/99 Stockholm Lindöpark [2001] ECR I‑493, paragraph 22).
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26. If there is no means of redress, allowing the implementing measures to be challenged, it should, it is submitted, be borne in mind that in the judgment in Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraphs 97 and 103), the Court held that ‘neither the FEU Treaty nor Article 19 TEU intended to create new remedies before the national courts to ensure the observance of EU law other than those already laid down by national law’, and that Article 47 is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union.
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103. As regards the remedies which Member States must provide, while the FEU Treaty has made it possible in a number of instances for natural and legal persons to bring a direct action, where appropriate, before the Courts of the European Union, neither the FEU Treaty nor Article 19 TEU intended to create new remedies before the national courts to ensure the observance of European Union law other than those already laid down by national law (Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 40).
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27. Il convient de rappeler que, dans la mesure où le règlement n o 44/2001 remplace la convention de Bruxelles, l’interprétation fournie par la Cour en ce qui concerne les dispositions de cette convention vaut également pour celles dudit règlement, lorsque les dispositions de ces instruments peuvent être qualifiées d’équivalentes (arrêt du 4 mai 2010, TNT Express Nederland, C‑533/08, Rec. p. I‑4107, point 36 et jurisprudence citée).
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33. Furthermore, contrary to the Hauptzollamt’s submissions, this conclusion is not contrary to the judgment in Schoonbroodt (EU:C:1998:586). In that case, the Court did not interpret a provision of a directive relating to the taxation of energy products within the internal market, such as Article 24 of Directive 2003/96, but, through the Belgian legislation at issue, a provision of Regulation No 918/83 concerning customs matters. Those enactments pursue different objectives (see, to this effect, the judgment in Meiland Azewijn , EU:C:2004:499, paragraph 40).
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40. The Court finds that while Article 8a does not contain a definition of ‘commercial motor vehicle’, it does not follow that the definitions contained in other texts of secondary legislation are relevant. As the Advocate General stated in paragraph 44 of his Opinion, the two definitions invoked by the Hauptzollamt Duisburg are not co-terminous and the texts in which they are found pursue objectives which are different from that of Directive 92/81. In those circumstances, it is not necessary to refer to those texts to determine the meaning of the term ‘commercial motor vehicle’, but rather it is appropriate to refer to the scheme and purpose of the provision in which it is found.
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36. Secondly, as is apparent from that regulation, Valimar’s resale prices were not used to calculate SSM’s export prices.
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49. In paragraphs 105 to 109 of the contested judgment, the Court of First Instance also sought to confirm its interpretation of those decisions by relying on its own case-law and that of the Court and by making reference to other documents from the case-file submitted to it. However, the reasoning of that part of the judgment is superfluous having regard to that which, in paragraphs 91 to 104, formed the basis of that interpretation. Therefore, and since the Court of First Instance did not err in law in arriving at that interpretation, the Commission’s complaints directed against the reasoning in paragraphs 105 to 109 of the judgment are immaterial. In accordance with settled case-law, those complaints, which cannot serve as the basis for setting aside the judgment of the Court of First Instance, must be rejected (see, inter alia, Case C-35/92 P Parliament v Frederiksen [1993] ECR I-991, paragraph 31, Case C-224/91 P Pincherle v Commission [1993] ECR I-6965, paragraph 25, and Case C-264/95 P Commission v UIC [1997] ECR I‑1287, paragraph 48).
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25 Consequently, it is irrelevant that the Court of First Instance also found that three-quarters of the reimbursements appearing on statements of payment Nos 71 and 72 were effected at the rates of 80% to 85% provided for in Article 72 of the Staff Regulations. Nor is that Court' s interpretation of Article 8(1) of the Insurance Rules relevant either. Since those grounds are superabundant, the appellant' s criticisms of them cannot lead the Court to set aside the judgment of the Court of First Instance: they are nugatory. Consequently, there is no need to consider them further.
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44. It is also settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effects of the ruling (see, inter alia, Santander Asset Management SGIIC and Others , paragraph 62).
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23. First of all, it is settled case-law that the concept of " worker" , within the meaning of Article 48 of the Treaty, has a specific Community meaning and must not be interpreted narrowly (see, to that effect, inter alia, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 16, Case 197/86 Brown [1988] ECR 3205, paragraph 21, Case C-3/90 Bernini [1992] ECR I-1071, paragraph 14, and Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 13).
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21 It must be emphasized in the first place that the concept of worker within the meaning of Article 48 of the EEC Treaty and Regulation No 1612/68 has a specific Community meaning . As the Court has already held, any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker ( judgments of 23 March 1982 in Case 53/81 Levin v Staatssecretaris van Justitie (( 1982 )) ECR 1035 and of 3 June 1986 in Case 139/85 Kempf v Staatssecretaris van Justitie (( 1986 )) ECR 1741, at p . 1746 ). The essential characteristic of the employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration ( judgment of 3 July 1986 in Case 66/85 Lawrie-Blum v Land Baden-Wuerttemburg (( 1986 )) ECR 2121 ).
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37. However, even if the conditions for direct discrimination are not met, internal taxation may be indirectly discriminatory as a result of its effects ( Nádasdi and Németh , paragraph 47).
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73. It is not in dispute that, by the Exchange of Notes of 29 January and 13 March 1992, the Kingdom of the Netherlands and the United States of America added to the 1957 Agreement an annex concerning the principles relating to CRSs, including those applying to CRSs offered for use or used on Netherlands territory. The Kingdom of the Netherlands maintained that annex in force despite the renegotiation of the 1957 Agreement which led to the Exchange of Notes of October 1992. By acting in that way, that Member State infringed the exclusive external competence of the Community arising from Regulation No 2299/89 (see, to that effect, Commission v Denmark , paragraphs 102 to 104; Commission v Sweden , paragraphs 98 to 100; Commission v Finland , paragraphs 103 to 105; Commission v Belgium , paragraphs 115 to 117; Commission v Luxembourg , paragraphs 108 to 110; Commission v Austria , paragraphs 117 to 119, and Commission v Germany , paragraphs 128 to 130).
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98 Secondly, it follows from Articles 1 and 7 of Regulation No 2299/89 that, subject to reciprocity, that regulation also applies to nationals of non-member countries, where they offer for use or use a CRS in Community territory.
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58. In this respect, it is for the national court to assess in particular whether:
– the official has authority generally within the sector in question;
– the official sends out his statements in writing under the official letterhead of the competent department;
– the official gives television interviews on his department’s premises;
– the official does not indicate that his statements are personal or that they differ from the official position of the competent department; and
– the competent State departments do not take the necessary steps as soon as possible to dispel the impression on the part of the persons to whom the official’s statements are addressed that they are official positions taken by the State.
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42. À défaut de consister en une somme d’argent convenue entre les parties, cette valeur, pour être subjective, doit être celle que le bénéficiaire de la prestation de services, qui constitue la contrepartie de la livraison de biens, attribue aux services qu’il entend se procurer et correspondre à la somme qu’il est disposé à dépenser à cette fin (arrêts du 2 juin 1994, Empire Stores, C‑33/93, Rec. p. I‑2329, point 19, et Orfey Balgaria, précité, point 45).
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45. Where that value is not a sum of money agreed between the parties, it must, in order to be subjective, be the value which the recipient of the services constituting the consideration for the supply of goods attributes to the services which he is seeking to obtain and must correspond to the amount which he is prepared to spend for that purpose (Case C-33/93 Empire Stores [1994] ECR I-2329, paragraph 19).
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37. Thus, by Decision 2001/246, based on Article 10 of Directive 90/425 and Article 13(3) of Directive 85/511, the Commission authorised the suppressive vaccination and pre-emptive killing of animals, the latter measure designating, according to Article 1 of that decision, the killing of susceptible animals on holdings within a certain radius around holdings placed under the restrictions defined in Article 4 or 5 of Directive 85/511, aimed at the urgent reduction of numbers of animals of susceptible species in an infected area.
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48. It is also apparent from settled case-law that Article 34 TFEU reflects the obligation to comply with the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of EU products to national markets (see Commission v Italy , paragraph 34 and the case‑law cited).
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34. It is also apparent from settled case-law that Article 28 EC reflects the obligation to respect the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of Community products to national markets (see, to that effect, Case 174/82 Sandoz [1983] ECR 2445, paragraph 26; Case 120/78 Rewe‑Zentral (‘ Cassis de Dijon ’) [1979] ECR 649, paragraphs 6, 14 and 15; and Keck and Mithouard , paragraphs 16 and 17).
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70. Ainsi, en l’espèce, le Tribunal a rappelé, au point 143 de l’arrêt attaqué, qu’une demande de mesures d’instruction présentée après la clôture de la procédure orale ne peut être retenue que si elle porte sur des faits de nature à exercer une influence décisive sur la solution du litige et que l’intéressé n’avait pu faire valoir avant la fin de la procédure orale (arrêt du 8 juillet 1999, Hoechst/Commission, C‑227/92 P, Rec. p. I‑4443, point 104). Il a conclu, à la suite de l’examen des arguments présentés par les requérants, que ceux-ci n’avaient pas avancé la moindre justification en vue d’établir que, lors de l’introduction de leur requête, ils n’avaient pu étayer leur affirmation concernant la surexploitation et l’érosion des ressources, en particulier, les raisons pour lesquelles il ne leur avait pas été possible, au stade de la requête ou à tout le moins de la réplique, de demander une expertise. Dès lors, le Tribunal a jugé cette demande irrecevable.
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66. In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid (see, to that effect, the judgment in Libert and Others , EU:C:2013:288, paragraph 77 and case-law cited).
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77. In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra‑Community trade, the latter must be re garded as affected by that aid (see, inter alia, Unicredito Italiano , paragraph 56 and the case-law cited, and Cassa di Risparmio di Firenze and Others , paragraph 141).
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37. In the light of the objective pursued by Directive 75/129, the Court has defined the term ‘establishment’ appearing therein very broadly, in order to limit as far as possible cases of collective redundancies which are not subject to the directive because of the legal definition of that term at national level (see Rockfon , paragraphs 31 and 32).
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24. According to settled case-law, in the absence of relevant Community rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under Community law are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness) (see, inter alia, Case C‑78/98 Preston and Others [2000] ECR I-3201, paragraph 31, and Joined Cases C-392/04 and C-422/04 i-21 Germany and Arcor [2006] ECR I-0000, paragraph 57).
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57. It must be borne in mind that, according to settled case-law, in the absence of relevant Community rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under Community law are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness) (see, inter alia, C-78/98 Preston and Others [2000] ECR I-3201, paragraph 31, and Case C-201/02 Wells [2004] ECR I-723, paragraph 67).
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46. It follows from those definitions that, first, a transmission system is an interconnected system used to transport electricity at extra-high and high voltage for sale to final customers or to distributors and, second, a distribution system is a system used to transport electricity at high, medium or low voltage for sale to wholesale or final customers.
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34. In that respect, it suffices to recall that the need for a uniform interpretation of the provisions of EU law makes it impossible, where there are doubts, for the text of a provision to be considered in isolation in one of its language versions, but requires, on the contrary, that it be interpreted and applied in the light of the versions existing in the other official languages (see, inter alia, judgments in Stauder , 29/69, EU:C:1969:57, paragraph 3; Moksel Import und Export , 55/87, EU:C:1988:377, paragraph 15; EMU Tabac and Others , C‑296/95, EU:C:1998:152, paragraph 36; and Profisa , C‑63/06, EU:C:2007:233, paragraph 13).
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36 Furthermore, to discount two language versions, as the applicants in the main proceedings suggest, would run counter to the Court's settled case-law to the effect that the need for a uniform interpretation of Community regulations makes it impossible for the text of a provision to be considered in isolation but requires, on the contrary, that it should be interpreted and applied in the light of the versions existing in the other official languages (see, in particular, Case 9/79 Koschniske [1979] ECR 2717, paragraph 6). Lastly, all the language versions must, in principle, be recognised as having the same weight and this cannot vary according to the size of the population of the Member States using the language in question.
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51. Le Tribunal n’a pas, à cet égard, commis d’erreur de droit. Il est vrai qu’il incombe à la Commission de respecter les garanties conférées par l’ordre juridique communautaire dans les procédures administratives, telles que, notamment, l’obligation pour l’institution compétente d’examiner, avec soin et impartialité, tous les éléments pertinents du cas d’espèce, le droit de l’intéressé de faire connaître son point de vue ainsi que celui de voir motiver la décision de façon suffisante (voir arrêt du 21 novembre 1991, Technische Universität München, C-269/90, Rec. p. I-5469, point 14). En revanche, il ne lui incombe pas, dans le cadre d’une plainte concernant le non-respect du droit communautaire par un État membre, d’informer les plaignants de tout développement purement interne du dossier ouvert à la suite de leur plainte. Ainsi, s’agissant d’un changement d’avis interne sur le bien-fondé d’une plainte, la Commission n’était pas tenue d’en informer les plaignants.
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43. In that regard, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Case 33/76 Rewe , paragraph 5; Comet , paragraphs 13 to 16; Peterbroeck , paragraph 12; Courage and Crehan , paragraph 29; Eribrand , paragraph 62; and Safalero , paragraph 49).
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14 ARTICLES 100 TO 102 AND 235 OF THE TREATY ENABLE THE APPROPRIATE STEPS TO BE TAKEN AS NECESSARY , TO ELEMINATE DIFFERENCES BETWEEN THE PROVISIONS LAID DOWN IN SUCH MATTERS BY LAW , REGULATION OR ADMINISTRATIVE ACTION IN MEMBER STATES IF THESE DIFFERENCES ARE FOUND TO BE SUCH AS TO CAUSE DISTORTION OR TO AFFECT THE FUNCTIONING OF THE COMMON MARKET .
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35. Furthermore, it cannot be inferred, even implicitly, from Rules 6 and 7 of the Rules of Procedure – which contain the internal rules concerning the procedure for waiving parliamentary immunity – that the national courts are obliged to refer to the Parliament the decision on whether the conditions for recognising that immunity are met, before ruling on the opinions and votes of Members of the Parliament.
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13 It is settled case-law that, in the interests of legal certainty and for ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN. There are also explanatory notes drawn up, as regards the CN, by the Commission and, as regards the HS, by the Customs Cooperation Council, which may be an important aid to the interpretation of the scope of the various tariff headings but which do not have legally binding force (see, in particular, Case C-201/96 LTM v FIRS [1997] ECR I-6147, paragraph 17, and Case C-280/97 Rose Elektrotechnik [1999] ECR I-689, paragraph 16).
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16 It is settled case-law that, in the interests of legal certainty and for ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN. There are also explanatory notes drawn up, as regards the CN, by the Commission and, as regards the Harmonised Commodity Description and Coding System, by the Customs Cooperation Council, which may be an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see, in particular, Case C-201/96 LTM v FIRS [1997] ECR I-6147, paragraph 17, and Case C-328/97 Glob-Sped [1998] ECR I-8357, paragraph 26).
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73 SUBPARAGRAPH 1 OF ARTICLE 1 ( 1 ) OF THE CONTESTED DECISION MUST THEREFORE BE ANNULLED .
CHAPTER 2
THE COMPLAINT OF A CONCERTED PRACTICE HAVING AS ITS OBJECT THE PROTECTION OF THE NETHERLANDS MARKET
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114
In that respect, the Court has already held that, where an administration is called upon to conduct an inquiry, it is for that administration to conduct it with the greatest possible diligence in order to dispel the doubts which exist and to clarify the situation (see, to that effect, judgment of 11 November 1986, Irish Grain Board, 254/85, EU:C:1986:422, paragraph 16).
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16 IT MUST BE EMPHASIZED IN THE FIRST PLACE THAT IT IS FOR THE ADMINISTRATION TO CONDUCT THAT INQUIRY WITH THE GREATEST POSSIBLE DILIGENCE IN ORDER TO DISPEL THE DOUBTS WHICH EXIST , AND SECONDLY THAT THE EXPORTER IS REQUIRED TO COOPERATE IN THE INQUIRY BY TRANSMITTING ALL SUCH INFORMATION AS HE IS ABLE TO FURNISH . IT IS ONLY WHERE SUCH AN INQUIRY HAS FAILED TO ESTABLISH THE USE TO WHICH THE PRODUCT IN QUESTION HAS BEEN PUT THAT THE MATTER OF THE BURDEN OF PROOF ARISES .
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37. Furthermore, unlike workers from the Member States, Turkish nationals are not entitled to freedom of movement within the European Union but can rely only on certain rights in the territory of the host Member State alone (Case C-325/05 Derin [2007] ECR I-6495, paragraph 66).
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145. For the purposes of applying Article 85(1) of the Treaty, it is sufficient that the object of an agreement should be to restrict, prevent or distort competition irrespective of the actual effects of that agreement. Consequently, in the case of agreements reached at meetings of competing undertakings, that provision is infringed where those meetings have such an object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (see Joined Cases C‑238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C‑250/99 P to C‑252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraphs 508 to 510).
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510 The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty.
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44. That finding cannot be affected by the fact that workers in a situation such as that at issue in the main proceedings begin and finish such journeys at their homes, as that fact stems directly from the decision of their employer to abolish regional offices and not from the desire of those workers. Having lost the ability to freely determine the distance between their homes and the usual place of the start and finish of their working day, they cannot be required to bear the burden of their employer’s choice to close those offices.
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68. In that regard, it must be observed that, according to settled case-law, the terms used to specify the exemptions in Article 13 of the Sixth Directive are to be interpreted strictly. Nevertheless, the interpretation of those terms must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. Accordingly, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 13 must be construed in such a way as to deprive the exemptions of their intended effects (see, in particular, judgments in Zimmermann , C‑174/11, EU:C:2012:716, paragraph 22 and the case-law cited, and Mapfre asistencia and Mapfre warranty , C‑584/13, EU:C:2015:488, paragraph 26).
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22. As is clear from settled case‑law, the terms used to specify the exemptions in Article 13 of the Sixth Directive are to be interpreted strictly. Nevertheless, the interpretation of those terms must be consistent with the objectives underlying the exemptions and must comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. Accordingly, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 13 must be construed in such a way as to deprive the exemptions of their intended effects (see inter alia, to that effect, Case C‑445/05 Haderer [2007] ECR I‑4841, paragraph 18 and the case‑law cited; Case C‑461/08 Don Bosco Onroerend Goed [2009] ECR I‑11079, paragraph 25 and the case‑law cited; and Case C‑262/08 CopyGene ECR [2010] ECR I‑5053, paragraph 26).
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119 By his eleventh ground of appeal, the appellant disputes paragraphs 172 to 175 of the contested judgment on the ground that the Court of First Instance failed to answer various arguments capable of establishing that the disciplinary proceedings were vitiated by a misuse of powers. The arguments relied on concerned parallel proceedings, the failure to reply to the question concerning the exact scope of the disciplinary proceedings in relation to Articles 11, 12 and 17 of the Staff Regulations, the absence of a logical connection between the premisses and the conclusions drawn in relation to the disciplinary proceedings, the fact that the Commission maintained in its pleadings that the Disciplinary Board was not even obliged to read the contested book and the deliberate and provocative appointment of the Secretary-General as Chairman of the Disciplinary Board.
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24. In view of the linguistic differences, the purport of the concept of European Union law in question cannot be determined on the basis of an exclusively textual interpretation. That expression must therefore be interpreted in the light of the context in which it is used and of the aims and scheme of the regulation of which it is part (see, to that effect, Case C-372/88 Cricket St Thomas [1990] ECR I-1345, paragraph 19; Case C‑455/05 Velvet & Steel Immobilien [2007] ECR I-3225, paragraph 20; and Case C-239/07 Sabatauskas and Others [2008] ECR I-7523, paragraph 39).
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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 .
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55. It follows that Belgian law contains measures capable of fulfilling the objective of ensuring payment of that tax that are less prejudicial to the freedom to provide services than the obligation to appoint a representative responsible residing in Belgium.
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58. So far as concerns the second condition, first of all it is apparent from the Court’s case-law that Directive 93/83 is concerned with a closed communications system, of which the satellite forms the central, essential and irreplaceable element, so that, in the event of malfunction of the satellite, the transmission of signals is technically unfeasible and, as a result, the public receives no broadcast (see, to this effect, Case C-192/04 Lagardère Active Broadcast [2005] ECR I‑7199, paragraph 39).
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39. Third, Article 1(2)(a) of Directive 93/83 requires that the programme-carrying signals are broadcast to the public by ‘an uninterrupted chain of communication leading to the satellite and down towards the earth’. Thus, that directive is concerned with a closed communications system, of which the satellite forms the central, essential and irreplaceable element, so that, in the event of malfunction of the satellite, the transmission of signals is technically impossible and, as a result, the public receives no broadcast.
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46 It must be noted in that regard that an examination of the substance of the Commission's principal claim does not necessarily require the Court to take a view on the question whether the amendments made in 1995 transformed the pre-existing 1989 Agreement into a new agreement.
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47. In the present case, the Court considers it necessary to rule at the outset on the substance of the case (Case C‑273/04 Poland v Council [2007] ECR I‑8925, paragraph 33).
The appeal
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33. In the present case, the Court considers it necessary to rule at the outset on the substance of the case.
Substance
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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73. Finally, it is settled case-law that the Court may, in the context of its jurisdiction under Article 267 TFEU to interpret EU law, interpret general criteria used by the EU legislature in order to define the concept of unfair terms (see, to that effect, the order in Pohotovosť , C‑76/10, EU:C:2010:685, paragraph 60 and case-law cited). However, 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. It follows that the Court must limit itself to providing the referring court with guidance which the latter must take into account in order to assess whether the term at issue is unfair (the judgments in Aziz , EU:C:2013:164, paragraph 66 and case-law cited; Kásler and Káslerné Rábai , EU:C:2014:282, paragraph 45; and the order in Sebestyén , C‑342/13, EU:C:2014:1857, paragraph 25).
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66. In that regard, according to settled case-law, the relevant jurisdiction of the Court 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. It is thus clear that the Court must limit itself to providing the referring court with guidance which the latter must take into account in order to assess whether the term at issue is unfair (see Case C-472/10 Invitel [2012] ECR I-0000, paragraph 22 and case-law cited).
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34 On 13 February 1993 the Council adopted the Regulation by a qualified majority vote.
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38. En l’occurrence, il n’est pas contesté que, au terme du délai fixé dans l’avis motivé, au regard duquel doit être apprécié le prétendu manquement d’État (voir, notamment, arrêt du 14 octobre 2010, Commission/Autriche, C‑535/07, Rec. p. I‑9483, point 22), les actions 8, 11 et 21 n’avaient pas été menées à bien. S’agissant de l’action 17, il découle de la réponse de la République hellénique que le plan de gestion du parc national des lacs Koroneia-Volvi, bien qu’ayant été établi par l’organisme de gestion de ces lacs, n’a pas encore été approuvé par l’autorité compétente. En ce qui concerne l’action 18, à supposer même que, ainsi que le soutient la République hellénique, elle ait été achevée, cet État membre ne conteste pas l’affirmation de la Commission selon laquelle cette action n’a pas été menée à terme dans le délai fixé dans l’avis motivé. Quant à l’action 20, sans qu’il soit besoin de se prononcer sur le nombre de forages devant être fermés, il n’est pas contesté que tous les forages devant, selon ledit État, être fermés ne l’avaient pas été dans le délai imparti. Par ailleurs, la République hellénique reconnaît que des agriculteurs, profitant de l’assèchement du lac, ont occupé 13 ha des terres qui en faisaient jadis partie.
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22. The question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-183/05 Commission v Ireland [2007] ECR I‑137, paragraph 17). Therefore, as the classification referred to in paragraph 20 of the present judgment occurred after that period expired, the complaint that the Hanság site was not classified as an SPA, in breach of Article 4(1) of the Birds Directive, is well founded.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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28. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute ( Djabali , paragraph 19; Bacardi-Martini and Cellier des Dauphins , paragraph 42; and Joined Cases C‑480/00 to C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00 Azienda Agricola Ettore Ribaldi and Others [2004] ECR I‑0000, paragraph 72).
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72. On this point it must be borne in mind that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of, or assessment of the validity of, a provision of Community law that is sought by the court making the reference bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraphs 59 to 61, Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20, and Case C-137/00 Milk Marque and National Farmers’ Union [2003] ECR I-0000, paragraph 37).
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18. Here, it is apparent from the wording of headings 8703 and 8713 of the CN themselves that the difference between them results from the fact that the first covers means of transport for persons in general, whereas the second applies specifically to means of transport for disabled persons.
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39. The Court has held that Directive 75/442, as amended by Directive 91/156, is a framework directive, Article 2(2) thereof providing that specific rules for particular instances, or supplementary rules, on the management of particular categories of waste may be laid down by means of individual directives. Such an individual directive may be considered to be special legislation (a lex specialis ) vis-à-vis Directive 75/442, so that its provisions prevail over those of Directive 75/442 in situations which it specifically seeks to regulate (see, to that effect, Case C-444/00 Mayer Parry Recycling [2003] ECR I-6163, paragraphs 51 and 57).
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51. That directive was substantially amended by Directive 91/156, although its amendment did not fundamentally alter the concept of waste which still covers substances or objects which the holder discards or intends or is required to discard. The new provisions introduced by Directive 91/156 include Article 2(2), according to which specific rules for particular instances, or supplementary rules, on the management of particular categories of waste may be laid down by means of individual directives, thus making Directive 75/442 framework legislation.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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36. In that regard, in accordance with settled case-law, any activity consisting in offering goods and services on a given market is an economic activity (see, inter alia, Wouters and Others , paragraph 47 and the case-law cited).
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47 It is also settled case-law that any activity consisting of offering goods and services on a given market is an economic activity (Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7; Case C-35/96 Commission v Italy [1998] ECR I-3851, CNSD, paragraph 36).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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20 That argument cannot be accepted. According to the case-law of the Court, it is for the national court to assess the scope of the national provisions and the manner in which they must be applied (see, in particular, the judgment in Case C-45/94 Ayuntamiento de Ceuta [1995] ECR I-4385, paragraph 26). Since the national court is best placed to assess, in view of the particularities of the case, the need for a preliminary ruling in order to give its judgment, the preliminary questions cannot be regarded as having become redundant as a result of the Decree of 14 May 1991 being replaced by the Royal Decree of 31 March 1994.
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26 In that connection, it must be stressed that it is for the national court to resolve any question of fact relevant to the disposal of the case before it, to assess the scope of the national provisions and the manner in which they must be applied. The Court of Justice may, however, infer from the questions referred the various possible hypotheses and indicate, for each of them, the criteria of Community law which it will be for the national court to apply.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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71. Therefore, it is necessary to ascertain, second, whether the requirement that vehicles which are more than three years old and which have previously been registered in another Member State must be submitted for testing as to their general condition prior to registration in the Netherlands constitutes a measure having equivalent effect to a quantitative restriction on imports, prohibited under Article 28 EC, and, if so, whether such a requirement may nevertheless be justified on grounds of the protection of interests referred to in Article 30 EC (see, to that effect, Case C‑150/00 Commission v Austria [2004] ECR I‑3887, paragraph 80).
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80. It follows from the foregoing arguments that, except for chomate salts, the Austrian practice cannot be validated on the basis of Directive 65/65. It is therefore appropriate to determine, secondly, whether the requirement of a marketing authorisation as a medicinal product, for which the Austrian practice provides, constitutes a measure having an effect equivalent to a quantitative restriction on imports, prohibited by Article 28 EC, and, if so, whether such a requirement may nevertheless be justified on grounds of public health referred to in Article 30 EC.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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10 That 60% rule was also held to be invalid by the Court on the ground of breach of the principle of the protection of legitimate expectations, since the application to producers covered by Article 3a of Regulation No 857/84 as amended of a reduction of 40% which, far from being representative of the rates applicable to the producers covered by Article 2, was more than double the highest total of such rates was to be regarded as a restriction which specifically affected the first-mentioned category of producers by very reason of their undertaking as to non-marketing or conversion (Case C-189/89 Spagl v Hauptzollamt Rosenheim [1990] ECR I-4539, paragraphs 24 and 29, and Case C-217/89 Pastaetter v Hauptzollamt Bad Reichenhall [1990] ECR I-4585, paragraphs 15 and 20).
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24 In those circumstances, the application to the producers covered by Article 3a of a reduction of 40% which, far from being representative of the rates applicable to the producers covered by Article 2, is more than double the highest total of such rates, must be regarded as a restriction which specifically affects the first-mentioned category of producers by very reason of their undertaking as to non-marketing or conversion .
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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35. On that point the Court has also stated that, in the case where a third party’s ad suggests that there is an economic link between that third party and the proprietor of the trade mark, the conclusion must be that there is an adverse effect on the function of indicating origin. Similarly, in the case where the ad, while not suggesting the existence of an economic link, is vague to such an extent on the origin of the goods or services at issue that normally informed and reasonably attentive internet users are unable to determine, on the basis of the advertising link and the commercial message attached thereto, whether the advertiser is a third party vis-à-vis the proprietor of the trade mark or, on the contrary, economically linked to that proprietor, the conclusion must also be that there is an adverse effect on that function of the trade mark ( Google France and Google , paragraphs 89 and 90, and BergSpechte , paragraph 36).
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90. In the case where the ad, while not suggesting the existence of an economic link, is vague to such an extent on the origin of the goods or services at issue that normally informed and reasonably attentive internet users are unable to determine, on the basis of the advertising link and the commercial message attached thereto, whether the advertiser is a third party vis-à-vis the proprietor of the trade mark or, on the contrary, economically linked to that proprietor, the conclusion must also be that there is an adverse effect on that function of the trade mark.
ii) Adverse effect on the advertising function
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123 In that regard, it should be noted, first, that, according to Article 1(2)(a) of Regulation No 2409/92, that regulation does not apply to fares and rates charged by air carriers other than Community air carriers, that restriction however being stated to be `without prejudice to paragraph 3' of the same article. Under Article 1(3) of Regulation No 2409/92, only Community air carriers are entitled to introduce new products or fares lower than the ones existing for identical products.
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30. Furthermore, the Court has already held that Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State ( De Coster , paragraph 30; Mobistar and Belgacom Mobile , paragraph 30; Cipolla and Others , paragraph 57; and Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I-0000, paragraph 67).
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57. Furthermore, the Court has already held that Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (see De Coster , paragraph 30, and the case-law cited, and Mobistar and Belgacom Mobile , paragraph 30).
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33. Having regard to the foregoing, the answer to the first question must be that, for the purposes of applying Directive 2000/76, where a co-generation plant comprises a number of boilers, each boiler and its associated equipment is to be regarded as constituting a separate plant.
The second question
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23. An analysis of those definitions shows that the scope of the term economic activities is very wide, and that the term is objective in character, in the sense that the activity is considered per se and without regard to its purpose or results (see Commission v Netherlands , paragraph 8; Commission v Greece , paragraph 26; and Commission v Spain , paragraph 89).
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89. L’analyse de ces définitions met en évidence l’étendue du champ d’application couvert par la notion d’activités économiques ainsi que le caractère objectif de cette notion, en ce sens que l’activité est considérée en elle-même, indépendamment de ses buts ou de ses résultats (voir, notamment, arrêts Commission/Pays-Bas, précité, point 8; du 12 septembre 2000, Commission/Grèce, précité, point 26, ainsi que du 21 février 2006, University of Huddersfield, C‑223/03, Rec. p. I‑1751, point 47 et jurisprudence citée). Une activité est ainsi, en général, qualifiée d’économique lorsqu’elle présente un caractère permanent et est effectuée contre une rémunération perçue par l’auteur de l’opération (arrêt du 13 décembre 2007, Götz, C‑408/06, Rec. p. I‑11295, point 18).
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55. Also, on the date when the Directive was adopted, several Member States already prohibited advertising of tobacco products, as indicated in paragraph 46 of the present judgment, while others were about to do so. Consequently, disparities existed between the Member States’ national laws and, contrary to the applicant’s submissions, those disparities were such as to impede the free movement of goods and the freedom to provide services.
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21. Accordingly, the content of those rules must be compatible with the rules of origin as set out in Article 24 of the Customs Code, and may not alter the scope of those rules (see, by analogy, concerning the Explanatory Notes to the CN, Case C‑311/04 Algemene Scheeps Agentuur Dordrecht [2006] ECR I-609, paragraph 28, and Case C‑376/07 Kamino International Logistics [2009] ECR I-0000, paragraph 48).
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48. The content of the Explanatory Notes to the CN, which do not take the place of those of the HS but should be regarded as complementary to them (see, to that effect, Case C‑486/06 Van Landeghem [2007] ECR I‑10661, paragraph 36), and consulted jointly with them, must accordingly be compatible with its provisions and may not alter the scope of those provisions (see, in particular, Algemene Scheeps Agentuur Dordrecht , paragraph 28 and the case-law cited).
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32 First of all, Article 2 of the Directive provides that all signs may constitute trade marks provided that they are capable both of being represented graphically and of distinguishing the goods or services of one undertaking from those of other undertakings.
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92
It should also be recalled that, in setting the amount of fines, regard must be had to the duration of the infringement and to all the factors capable of affecting the assessment of the gravity of that infringement (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 240, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 98).
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98. Furthermore, it should also be noted that, according to the settled case-law of the Court of Justice, in setting the amount of fines, regard must be had to the duration of the infringements and to all the factors capable of affecting the assessment of the gravity of those infringements (see Musique Diffusion française and Others v Commission , paragraph 129, and Dansk Rørindustri and Others v Commission , paragraph 240).
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64. In those circumstances, it must be held that the corrected figures do not call into question the overall conclusion reached, following an examination of all the economic indicators, by the EU institutions, with the result that the EU institutions were correct in establishing the existence of injury to the Union industry and the causal link between the imports and the injury.
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27. Moreover, it should be noted that it is apparent from the case-law of the Court that the word ‘part’, within the meaning of heading 8473 of the CN, implies a whole for whose operation the part is essential (Case C-339/98 Peacock [2000] ECR I‑8947, paragraph 21; and Turbon International, paragraph 17).
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21 The word part, on the other hand, implies a whole for the operation of which the part is essential and this is not so in the case of network cards. In that respect, it appears from the documents before the Court that network cards, which come in the form of slot-in cards, may also take other forms, in particular that of a standalone unit.
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108. That aim is apparent from the seventh recital in the preamble to Regulation No 2081/92 (Joined Cases C‑129/97 and C‑130/97 Chiciak and Fol [1998] ECR I‑3315, paragraphs 25 and 26), which is essentially identical to the sixth recital in the preamble to Regulation No 510/2006, which states:
‘Provision should be made for a Community approach to designations of origin and geographical indications. A framework of Community rules on a system of protection permits the development of geographical indications and designations of origin since, by providing a more uniform approach, such a framework ensures fair competition between the producers of products bearing such indications and enhances the credibility of the products in the consumer’s eyes.’
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40. It should be recalled, second, that it follows from Article 225 EC and Article 58 of the Statute of the Court of Justice that an appeal is limited to points of law. According to settled case-law, the Court of First Instance therefore has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in an appeal (see, inter alia, Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraphs 47 to 49, and Case C‑470/00 P Parliament v Ripa di Meana and Others [2004] ECR I‑0000, paragraph 40).
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47 In that respect it must be borne in mind that according to Article 168a of the EEC Treaty and the corresponding provisions of the ECSC and EAEC treaties there is a right of appeal on points of law only. That restriction is referred to in the first paragraph of Article 51 of the EEC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice, which specify the grounds on which an appeal lies, namely lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant and the infringement of Community law by the Court of First Instance.
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8 IT FOLLOWS FROM THE PURPOSE ASSIGNED TO THE PRE-CONTENTIOUS STAGE OF THE PROCEEDINGS FOR FAILURE OF A STATE TO FULFIL ITS OBLIGATIONS THAT A LETTER GIVING FORMAL NOTICE IS INTENDED TO DELIMIT THE SUBJECT-MATTER OF THE DISPUTE AND TO INDICATE TO THE MEMBER STATE WHICH IS INVITED TO SUBMIT ITS OBSERVATIONS THE FACTORS ENABLING IT TO PREPARE ITS DEFENCE .
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29. As regards the purpose of the rules of lis pendens in Article 19 of Regulation No 2201/2003, it must be noted that those rules are intended to prevent parallel proceedings before the courts of different Member States and to avoid conflicts between decisions which might result therefrom (see judgment in Purrucker , C‑296/10, EU:C:2010:665, paragraph 64). For that purpose, the EU legislature intended to put in place a mechanism which is clear and effective in order to resolve situations of lis pendens (see, by analogy, with regard to Regulation No 44/2001, judgment in Cartier parfums-lunettes and Axa Corporate Solutions assurances , C‑1/13, EU:C:2014:109, paragraph 40).
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40. In the second place, as regards the purpose itself of Regulation No 44/2001, it must be recalled that one of the aims of that regulation, as is clear from recital 15 in the preamble thereto, is to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given where a number of courts have jurisdiction to hear the same dispute. It is for that purpose that the European Union legislature intended to put in place a mechanism which is clear and effective in order to resolve situations of lis pendens. It follows that, in order to achieve those aims, Article 27 of Regulation No 44/2001 must be interpreted broadly ( Overseas Union Insurance and Others , paragraph 16).
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11 THE ORDERS CONCERNED IN THE PRESENT CASE ARE NOT MEASURES WHICH ARE APPLICABLE TO DOMESTIC PRODUCTS AND TO IMPORTED PRODUCTS WITHOUT DISTINCTION BUT RATHER A SET OF RULES WHICH APPLY ONLY TO IMPORTED PRODUCTS AND ARE THEREFORE DISCRIMINATORY IN NATURE , WITH THE RESULT THAT THE MEASURES IN ISSUE ARE NOT COVERED BY THE DECISIONS CITED ABOVE WHICH RELATE EXCLUSIVELY TO PROVISIONS THAT REGULATE IN A UNIFORM MANNER THE MARKETING OF DOMESTIC PRODUCTS AND IMPORTED PRODUCTS .
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55. However, without there being any need, by approximate analogy with that reasoning, to regard the importation of slot machines as ancillary to the operation thereof, it suffices to state, as the Court did in paragraphs 20 to 29 of Läärä and Others , cited above, that, even though the operation of slot machines is linked to operations to import them, the former activity comes under the provisions of the Treaty relating to the freedom to provide services and the latter under those relating to the free movement of goods.
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22 Finally, as has been pointed out in certain of the observations submitted to the Court, other provisions of the Treaty, such as those relating to the right of establishment or the competition rules, may be applicable to legislation of the kind at issue in the main proceedings.
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La Cour a jugé, au point 133 de l’arrêt du 28 juin 2012, Commission/Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393), à l’égard
de l’article 4, paragraphe 6, du règlement n° 1049/2001, relatif au droit d’accès partiel aux documents, que les présomptions
générales visées, respectivement, au point 123 ainsi qu’aux points 130 et 131 dudit arrêt signifient que les documents couverts
par celles-ci échappent à l’obligation d’une divulgation, intégrale ou partielle, de leur contenu.
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30. Those functions include not only the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services (‘the function of indicating origin’), but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising ( L’Oréal and Others , paragraph 58, and Google France and Google , paragraph 77).
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77. Those functions include not only the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services (‘the function of indicating origin’), but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising ( L’Oréal and Others , paragraph 58).
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40 It should be borne in mind that Directive 75/106 was adopted on the basis of Article 100 of the EC Treaty (now Article 94 EC) for the purpose of approximating the laws, regulations and administrative provisions of the Member States that have a direct effect on the establishment or functioning of the common market.
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26 On the one hand, the Court has consistently held that the health and the life of humans rank foremost among the property or interests protected by Article 36 and it is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they intend to assure and in particular how strict the checks to be carried out are to be. On the other hand, Article 36 remains applicable where harmonization of national legislation on the manufacture and marketing of proprietary medicinal products has not been fully achieved (judgment in Case 215/87 Schumacher [1989] ECR 617, paragraph 15).
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15 In the second place, as the Court has already had occasion to point out, Directive 65/65, as amended by Council Directives 75/319 of 20 March 1975 ( Official Journal 1975, L 147, p . 13 ), 83/570 of 20 October 1983 ( Official Journal 1983, L 332, p . 1 ) and 87/21 of 22 December 1986 ( Official Journal 1987, L 15, p . 36 ), is intended only to achieve progressive harmonization of the national legislation on the manufacture and marketing of proprietary medicinal products . As Community law now stands, that harmonization has not been fully achieved, since, for example, a medicinal preparation may be authorized in one Member State but not in one or more others, with or without prescription . It is only when Community directives provide for complete harmonization of all the measures necessary for the protection of human and animal health that recourse to Article 36 will cease to be justified . It is therefore necessary to consider whether measures of the type at issue may be justified under Article 36 of the Treaty .
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17 Moreover, since the services provided to Empire Stores are remunerated by the supply of goods the value of the services can unquestionably be expressed in monetary terms.
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106. It is clear from the Court’s case-law that the intervention on the part of the ‘competent authority’ mentioned in Article 9(1) must make it possible for an exhaustive examination to be made of all the facts and circumstances, including the expediency of the measure in question, before the decision is definitively adopted ( Santillo , cited above, paragraph 12, and Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 15). The Court has also stated that, save in urgent cases, the administrative authority may not take its decision until an opinion has been obtained from the competent authority (Case 98/79 Pecastaing [1980] ECR 691, paragraph 17, and Dzodzi , cited above, paragraph 62).
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17 WITH REGARD TO THE INTERPRETATION OF ARTICLE 9 CONSIDERED IN ISOLATION , IT SHOULD BE RECALLED , AS THE COURT OF JUSTICE HAD OCCASION TO POINT OUT IN ITS JUDGMENT IN THE ROYER CASE ( PARAGRAPH 59 OF THE DECISION ), THAT THE PROCEDURE OF APPEAL TO A ' ' COMPETENT AUTHORITY ' ' REFERRED TO IN THAT ARTICLE MUST PRECEDE THE DECISION ORDERING EXPLUSION , SAVE IN CASES OF URGENCY . IN PARTICULAR IF A MEMBER STATE HAS APPLIED ARTICLE 9 IN ORDER TO COMPENSATE FOR THE FACT THAT THE APPEALS TO THE COURTS WHICH ARE AVAILABLE DO NOT CARRY SUSPENSORY EFFECT THAT PROVISION WOULD BE RENDERED NUGATORY IF , ALWAYS SAVE IN CASES OF URGENCY , EXECUTION OF THE EXPULSION ORDER CONTEMPLATED WERE NOT SUSPENDED UNTIL THAT AUTHORITY HAS GIVEN ITS OPINION ( ROYER CASE , PARAGRAPH 61 OF THE DECISION ).
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34. It should also be noted that the provisions of the Agreement are intended for the following categories of persons, whether Community or Swiss nationals: the self-employed, which include also self-employed frontier workers, workers, which include employed workers, workers on secondment and employed frontier workers, persons providing services, recipients of services, persons employed for a period of less than one year in the territory of a Contracting Party, students, jobseekers, persons not engaged in gainful activity and members of the families of those various categories of nationals. All those categories of persons, with the exception of persons providing services and recipients of services, are by their nature categories of natural persons.
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43. It follows that the subject-matter of proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision and cannot, therefore, be extended during the judicial procedure. The Commission’s reasoned opinion and the application must be based on the same grounds and pleas, with the result that the Court cannot examine a ground of complaint which was not formulated in the reasoned opinion, which for its part must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (see Commission v Netherlands , paragraph 20, and Case C‑441/02 Commission v Germany [2006] ECR I‑3449, paragraphs 59 and 60).
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59. The Court has consistently held (see, inter alia, Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 23) that the letter of formal notice sent by the Commission to a Member State, and the reasoned opinion issued by the Commission, delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the EC Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations.
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67. If the contracting authority continues to bear all of the risk by not exposing the supplier to the vagaries of the market, the awarding of the right to operate the service requires that the formalities provided for in Directive 2004/17 be applied, with a view to safeguarding transparency and competition.
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55. Accordingly, as the Commission also observed in its written submissions, although findings made in criminal proceedings relating to facts which are the same as those investigated in the course of a procedure based on Article 235 EC may be taken into account by the Community Court hearing the case, the latter is not bound by the legal characterisation of the facts made by the criminal court; rather, it is for the Community Court, exercising its discretion to the full, to undertake an independent examination of those facts in order to determine whether the conditions to be satisfied in order for the Community to incur non-contractual liability have been met (see, by analogy, judgment in Commission v Cresson EU:C:2006:455, paragraphs 120 and 121).
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121. However, the Court is not bound by the legal characterisation of the facts made in the context of the criminal proceedings and it is for the Court, exercising its discretion to the full, to investigate whether the conduct complained of in proceedings brought under Article 213(2) EC constitutes a breach of the obligations arising from the office of Member of the Commission.
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49
In that regard, it must be recalled that, according to the Court’s settled case-law, the provisions of an international agreement to which the European Union is a party can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where, first, the nature and the broad logic of that agreement do not preclude it and, second, those provisions appear, as regards their content, to be unconditional and sufficiently precise (judgment of 13 January 2015 in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 54 and the case-law cited).
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20. It should be noted that freedom of establishment entails, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Union, the right to exercise their activity in the Member State concerned through a subsidiary, a branch or an agency (judgment in Nordea Bank Danmark , C‑48/13, EU:C:2014:2087, paragraph 17 and the case-law cited).
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17. Freedom of establishment, which Article 49 TFEU grants to European Union nationals, includes the right for them to take up and pursue activities as self‑employed persons and to set up and manage undertakings under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected. It entails, in accordance with Article 54 TFEU, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Union, the right to exercise their activity in the Member State concerned through a subsidiary, a branch or an agency (see, to this effect, the judgments in Saint-Gobain ZN , C‑307/97, EU:C:1999:438, paragraph 35, and Marks & Spencer , C‑446/03, EU:C:2005:763, paragraph 30).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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96. As regards, firstly, the relevance of the effects of the infringement in question, it must be borne in mind that, in accordance with settled case-law, the seriousness of infringements of European Union competition law is determined by reference to numerous factors, and that no binding or exhaustive list of criteria to be taken into account has been drawn up (see, inter alia, judgment of 19 December 2012 in Case C‑445/11 P Bavaria v Commission , paragraph 59 and the case-law cited). With regard, more specifically, to the actual impact of an infringement on the market, that is not a decisive factor for determining the level of fines (see Case C‑272/09 P KME Germany and Others v Commission [2011] ECR I‑0000, paragraph 34 and Case C‑389/10 P KME Germany and Others v Commission [2011] ECR I‑0000, paragraph 44).
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34. In paragraphs 68 and 70 of the judgment under appeal, the General Court recalled the case-law relating to the standard of proof of the actual impact of a cartel on the market. In paragraphs 69 and 71 to 73 of its judgment it checked, moreover, that the Commission had demonstrated to the requisite legal standard the actual impact of the cartel on the relevant market. However, it did so for the sake of completeness, as indicated in paragraph 66 of that judgment, and after correctly observing, in paragraph 64, that the actual impact of cartels on the market is not a decisive factor for determining the level of fines. It follows from this that the appellants’ plea countering that part of the General Court’s reasoning is ineffective.
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25. Secondly, it is apparent from Article 3(2) of that directive that, in order to be classified as an act of ‘making available to the public’ within the meaning of that article, an act must meet, cumulatively, both conditions set out in that provision, namely that members of the public may access the protected work from a place and at a time individually chosen by them.
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61 While any examination into whether an aid scheme is compatible with the common market is a matter for the Commission, regard being had to the fact that such an examination involves assessments of an economic and social nature which must be made within a Community context (see, in this regard, Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 67), it cannot be disputed that, regarding the assessment of the manner in which the revenue generated by a domestic parafiscal charge is allocated, the national courts are best placed to collate the necessary information and to carry out the assessments required in that regard on the basis of data which should normally follow from the accounts and other documents relating to the management of the bodies which collect the levy and allocate subsidies and other benefits.
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67 So far as concerns the other areas covered by the aid scheme in issue, it should be noted that the Court has consistently held that as regards the application of Article 92(3) of the Treaty the Commission enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context (Case C-303/88 Italy v Commission, cited above, paragraph 34).
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17 Such limitations on the right of deduction have an impact on the level of the tax burden and must be applied in a similar manner in all the Member States . Consequently, derogations are permitted only in the cases expressly provided for in the directive .
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55. The scope of the Community Court’s review must be limited in particular if, as in the present case, the Community institutions have to reconcile divergent interests and thus to select options within the context of the policy choices which are their own responsibility (see, to that effect, Case C‑17/98 Emesa Sugar , cited above, paragraph 53).
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53 It should be borne in mind that in a sphere such as this, in which the Community institutions have a broad discretion, the lawfulness of a measure can be affected only if the measure is manifestly inappropriate having regard to the objective pursued. The Court's review must be limited in particular if the Council has to reconcile divergent interests and thus select options within the context of the policy choices which are its own responsibility (see Case C-280/93 Germany v Council [1994] ECR I-4973, paragraphs 90 and 91; Case C-44/94 Fishermen's Organisations and Others [1995] ECR I-3115, paragraph 37; and Case C-150/94 United Kingdom v Council [1998] ECR I-7235, paragraph 87).
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36. It follows from the foregoing that, in order to be classifiable under subheading 8704 10 of the CN, dumpers must have been specially designed for off-highway use for the transport and unloading of materials.
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65 The decision merely regulates, in Article 6(2), the effect on the calculation of the periods of legal employment referred to in the three indents of Article 6(1) of certain periods of inactivity which are treated as periods of legal employment within the meaning of paragraph (1) or which do not cause the worker to lose entitlement to the rights acquired by virtue of earlier periods of legal employment (see, in particular, the judgment in Tetik, cited above, paragraphs 36 to 39).
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39 The sole purpose of this latter provision is therefore to prevent a Turkish worker who recommences employment after having been forced to stop working because of long-term illness or unemployment through no fault of his own from being required, in the same way as a Turkish national who has never previously been in paid employment in the Member State in question, to recommence the periods of legal employment envisaged by the three indents of Article 6(1).
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47. En effet, une réglementation nationale, telle que celle en cause au principal, qui est indistinctement applicable aux ressortissants italiens et aux ressortissants des autres États membres, n’est, en règle générale, susceptible de relever des dispositions relatives aux libertés fondamentales garanties par le traité que dans la mesure où elle s’applique à des situations ayant un lien avec les échanges entre les États membres (voir arrêt Attanasio Group, précité, point 23 et jurisprudence citée).
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35. It also follows from settled case-law of the Court that the measures prohibited by Article 63(1) TFEU, as restrictions on the movement of capital, include those which are such as to discourage non-residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (Case C-370/05 Festersen [2007] ECR I-1129, paragraph 24; Case C-101/05 A [2007] ECR I-11531, paragraph 40; and Haribo Lakritzen Hans Riegel and Österreichische Salinen , paragraph 50).
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40. The measures prohibited by Article 56(1) EC, as restrictions on the movement of capital, include those which are likely to discourage non‑residents from making investments in a Member State or to discourage that Member State’s residents from doing so in other States (see van Hilten-van der Heijden , paragraph 44, and Case C-370/05 Festersen [2007] ECR I-1129, paragraph 24).
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66. La Cour ayant constaté que la République italienne ne s’est pas conformée à son arrêt Commission/Italie (C‑297/08, EU:C:2010:115), elle peut, en application de l’article 260, paragraphe 2, deuxième alinéa, TFUE, infliger à cet État membre le paiement d’une somme forfaitaire et/ou d’une astreinte (voir arrêt Commission/Grèce, C‑378/13, EU:C:2014:2405, point 33 et jurisprudence citée).
Sur l’astreinte
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14 In this respect, the overriding reasons relating to the public interest which the Court has already recognized include professional rules intended to protect recipients of the service (Joined Cases 110/78 and 111/78 Van Wesemael [1979] ECR 35, paragraph 28); protection of intellectual property (Case 62/79 Coditel [1980] ECR 881); the protection of workers (Case 279/80 Webb [1981] ECR 3305, paragraph 19; Joined Cases 62/81 and 63/81 Seco v EVI [1982] ECR 223, paragraph 14; Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 18); consumer protection (Case 220/83 Commission v France [1986] ECR 3663, paragraph 20; Case 252/83 Commission v Denmark [1986] ECR 3713, paragraph 20; Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 30; Case 206/84 Commission v Ireland [1986] ECR 3817, paragraph 20; Commission v Italy, cited above, paragraph 20; and Commission v Greece, cited above, paragraph 21), the conservation of the national historic and artistic heritage (Commission v Italy, cited above, paragraph 20); turning to account the archaeological, historical and artistic heritage of a country and the widest possible dissemination of knowledge of the artistic and cultural heritage of a country (Commission v France, cited above, paragraph 17, and Commission v Greece, cited above, paragraph 21).
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20 IN ITS JUDGMENT DELIVERED THIS DAY IN CASE 205/84 COMMISSION V FEDERAL REPUBLIC OF GERMANY , THE COURT HELD THAT IN THE INSURANCE SECTOR IN GENERAL THERE WERE IMPERATIVE REASONS RELATING TO THE PROTECTION OF THE CONSUMER BOTH AS A POLICY-HOLDER AND AS AN INSURED PERSON WHICH MIGHT JUSTIFY RESTRICTIONS ON THE FREEDOM TO PROVIDE SERVICES . THE COURT ALSO RECOGNIZED THAT IN THE PRESENT STATE OF COMMUNITY LAW , IN PARTICULAR WITH REGARD TO THE COORDINATION OF THE RELEVANT NATIONAL RULES , THE PROTECTION OF THAT INTEREST WAS NOT NECESSARILY GUARANTEED BY THE RULES OF THE STATE OF ESTABLISHMENT . THE COURT CONCLUDED THEREFROM THAT , AS REGARDS THE SECTOR OF DIRECT INSURANCE IN GENERAL , THE REQUIREMENT OF A SEPARATE AUTHORIZATION GRANTED BY THE AUTHORITIES OF THE STATE IN WHICH THE SERVICE WAS PROVIDED REMAINED JUSTIFIED SUBJECT TO CERTAIN CONDITIONS . ON THE OTHER HAND , THE COURT CONSIDERED THAT THE REQUIREMENT OF AN ESTABLISHMENT , WHICH REPRESENTED THE VERY NEGATION OF THE FREEDOM TO PROVIDE SERVICES , EXCEEDED WHAT WAS NECESSARY TO ATTAIN THE OBJECTIVE PURSUED AND THAT , ACCORDINGLY , THAT REQUIREMENT WAS CONTRARY TO ARTICLES 59 AND 60 OF THE TREATY .
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26. En conséquence, dès lors que les questions posées portent sur l’interprétation du droit de l’Union, la Cour est compétente pour en connaître (voir, en ce sens, arrêt du 14 juin 2012, Banco Español de Crédito, C‑618/10, point 76).
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87. Situations falling within the scope of Community law include those involving the exercise of the fundamental freedoms guaranteed by the EC Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC (see, in particular, Grzelczyk , paragraph 33; D’Hoop , paragraph 29; Garcia Avello , paragraph 24; and Pusa , paragraph 17).
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29 The situations falling within the scope of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 8a of the EC Treaty (now, after amendment, Article 18 EC) (Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraphs 15 and 16, and Grzelczyk, paragraph 33).
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Il convient de constater que ces considérations traduisent de manière correcte la jurisprudence de la Cour selon laquelle l’application de l’article 81 CE suppose l’action d’une personne qui est autorisée à agir pour le compte de l’entreprise, indépendamment de l’action ou même de la connaissance des associés ou des gérants principaux de l’entreprise concernée (voir, en ce sens, arrêts du 7 juin 1983, Musique Diffusion française e.a./Commission, 100/80 à 103/80, EU:C:1983:158, point 97, ainsi que du 7 février 2013, Slovenská sporiteľňa, C‑68/12, EU:C:2013:71, point 25).
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23. According to settled case-law, an agreement concluded by the Council, in accordance with Articles 300 EC and 310 EC, is, as far as the Community is concerned, an act of one of the institutions of the Community, within the meaning of subparagraph (b) of the first paragraph of Article 234 EC. The provisions of such an agreement form an integral part of the Community legal order as from its entry into force and, within the framework of that order, the Court has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement (Case 181/73 Haegeman [1974] ECR 449, paragraphs 4 to 6; Case 12/86 Demirel [1987] ECR 3719, paragraph 7; Case C-321/97 Andersson and Wåkerås-Andersson [1999] ECR I-3551, paragraph 26; and Case C-431/05 Merck Genéricos – Produtos Farmacêuticos [2007] ECR I-7001, paragraph 31).
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5 THE PROVISIONS OF THE AGREEMENT, FROM THE COMING INTO FORCE THEREOF, FORM AN INTEGRAL PART OF COMMUNITY LAW .
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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34 In paragraph 13 of its judgment in Case C-281/91 Muys' en De Winter's Bouw-en Aannemingsbedrijf [1993] ECR I-5405 the Court stated that where the identity of the lender or the borrower is not specified, the expression `the granting and the negotiation of credit' in point 1 of Article 13B(d) of the Sixth Directive is in principle sufficiently broad to include credit granted by a supplier of goods in the form of deferral of payment. The Court also considered that the wording of that provision in no way suggested that the scope of that provision was limited only to loans and credits granted by banking and financial institutions.
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13 Although the exemptions provided for in Article 13 are to be interpreted strictly (see Case 348/87 Stichting Uitvoering Financiële Acties v Staatssecretaris van Financiën [1989] ECR 1737), nevertheless, in the absence of any specification of the identity of the lender or the borrower, the expression "the granting and the negotiation of credit" is in principle sufficiently broad to include credit granted by a supplier of goods in the form of deferral of payment. Contrary to the Commission' s view, the wording of that provision in no way suggests that there is any limitation on the scope of Article 13(B)(d)(1) only to loans and credits granted by banking and financial institutions.
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61
Thus, the determination of a child’s habitual residence in a given Member State requires at least that the child has been physically present in that Member State.
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24 The Court has thus recognised, for example, that sex may be a determining factor for posts such as those of prison warders and head prison warders (Case 318/86 Commission v France [1988] ECR 3559, paragraphs 11 to 18), or for certain activities such as policing activities where there are serious internal disturbances (Johnston, paragraph 37).
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18 The Commission' s complaints relating to head warders responsible for the direction of prisons must therefore be rejected .
( b ) The five corps in the national police force
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43 For example, the category of projects entitled `Construction of motorways, express roads and lines for long-distance railway traffic and of airports ...' under point 7 in Annex I cannot correspond, as a class of projects, to the category under point 10 of Annex II, entitled `Infrastructure projects'; it must rather correspond to subdivision (d) within that point, which refers to `Construction of roads, harbours, including fishing harbours, and airfields (projects not listed in Annex I)'.
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51. Les dispositions du traité FUE ainsi que de l’accord EEE relatives à la libre prestation des services s’opposant à cette réglementation, il n’est pas nécessaire d’examiner séparément ladite réglementation à la lumière des articles 63 TUE et 40 de l’accord EEE, concernant la libre circulation des capitaux (voir, en ce sens, arrêts Commission/Belgique, C‑383/10, EU:C:2013:364, point 74, et Commission/Belgique, C‑296/12, EU:C:2014:24, point 51).
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51. Since the provisions of the FEU Treaty relating to the freedom to provide services preclude the rules at issue, there is no need to examine them separately in the light of Article 63 TFEU concerning free movement of capital (see, to that effect, Commission v Denmark , paragraph 76, and Case C‑383/10 Commission v Belgium , paragraph 74).
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Ces nécessités de cohérence, de coordination et de rapidité lors de l’adoption des actes requis justifient que des mesures
d’inscription adoptées sur le fondement du traité FUE concomitamment à des mesures d’inscription adoptées dans le cadre de
la politique étrangère et de sécurité commune soient considérées comme relevant de cas spécifiques, au sens de l’article 291,
paragraphe 2, TFUE (arrêt du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 58). C’est ainsi que, comme l’a relevé
le Tribunal au point 73 de l’arrêt attaqué, la Cour a rejeté, dans l’arrêt du 28 novembre 2013, Conseil/Manufacturing Support
& Procurement Kala Naft (C‑348/12 P, EU:C:2013:776, point 109), un moyen tiré de l’incompétence du Conseil pour adopter des
mesures de gel de fonds prises à l’égard de Manufacturing Support & Procurement Kala Naft Co., Tehran, telles que prévues
notamment par la décision 2010/413, sur le fondement de l’article 29 TUE, par un règlement d’exécution fondé sur l’article
291, paragraphe 2, TFUE, en relevant en substance que cette disposition du traité FUE donnait au Conseil la compétence pour
adopter les mesures litigieuses.
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24. Secondly, it must be recalled that, as recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship. The EU legislature accordingly made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State (see Case C-162/09 Lassal [2010] ECR I-9217, paragraphs 32 and 37).
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32. As recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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36. With regard to the principle of proportionality, the Court has held that, while observance of that principle requires that any rounded amount should correspond as closely as possible to that arising from application of the rate in force, the fact remains that that requirement must be reconciled with the practical needs of the effective application of the common system of VAT and that, in view of the technical nature of rounding, more than one single method of rounding could satisfy those requirements (see, to that effect, Koninklijke Ahold , paragraphs 39 to 41).
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39. While observance of that principle requires, when rounding is necessary, it to be carried out in such a way that the rounded amount corresponds as closely as possible with the amount of VAT arising from application of the rates in force, the fact remains that such an operation, of its nature, is intended to facilitate calculation and must, therefore, reconcile the requirement of, so far as possible, exact proportion with the practical necessity that the common system of VAT based on the principle of a return from the taxable person should operate effectively.
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10. However the ministre délégué asserts that, on the one hand, the judgment in Vander Zwalmen and Massart (C‑229/98, EU:C:1999:501) indicates that those provisions do not preclude the refusal of a tax advantage, which applies indiscriminately to households whose income fall below a certain amount, to households in which one spouse is an official or other servant of the Union and where the salary of that spouse exceeds that amount.
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27. On the other hand, if those courts or tribunals consider that recourse to European Union law is necessary to enable them to decide a case, Article 267 TFEU imposes, in principle, an obligation on them to refer to the Court of Justice any question of interpretation which may arise (see Cilfit and Others , paragraphs 11 to 20).
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20 FINALLY , EVERY PROVISION OF COMMUNITY LAW MUST BE PLACED IN ITS CONTEXT AND INTERPRETED IN THE LIGHT OF THE PROVISIONS OF COMMUNITY LAW AS A WHOLE , REGARD BEING HAD TO THE OBJECTIVES THEREOF AND TO ITS STATE OF EVOLUTION AT THE DATE ON WHICH THE PROVISION IN QUESTION IS TO BE APPLIED .
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125. À cet égard, il importe de constater que l’application des lignes directrices de 1998 à l’encontre des régimes fiscaux litigieux adoptés en 1993 ne constitue pas une situation acquise antérieurement, mais relève d’une situation en cours qui, bien que née avant l’entrée en vigueur de celles-ci, est régie par lesdites lignes directrices à compter de leur entrée en vigueur, conformément au principe selon lequel les règles nouvelles s’appliquent immédiatement aux situations en cours (voir arrêt du 29 janvier 2002, Pokrzeptowicz-Meyer, C-162/00, Rec. p. I-1049, point 51).
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18 It is settled case-law that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that provision and that, consequently, the Commission's reasoned opinion and the application must be based on the same complaints (see Case C-11/95 Commission v Belgium [1996] ECR I-4115, paragraph 73, and Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraph 24).
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73 It is true that the Court has held that the subject-matter of an application made under Article 169 of the Treaty is circumscribed by the pre-litigation procedure provided for by that article, and that the Commission' s reasoned opinion and the application to the Court must therefore be based on the same objections (Case C-105/91 Commission v Greece, cited above, paragraph 12).
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66IN GENERAL A DOMINANT POSITION DERIVES FROM A COMBINATION OF SEVERAL FACTORS WHICH , TAKEN SEPARATELY , ARE NOT NECESSARILY DETERMINATIVE .
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60. Nevertheless, according to the Court’s established case-law, where national legislation falling within an area which has not been completely harmonised at European Union level is applicable without distinction to all persons and undertakings operating in the territory of the Member State concerned, it may, notwithstanding its restrictive effect on the freedom to provide services, be justified where it meets an overriding requirement relating to the public interest and that interest is not already safeguarded by the rules to which the service provider is subject in the Member State in which he is established and in so far as it is appropriate for securing the attainment of the aim which it pursues and does not go beyond what is necessary in order to attain it (see Arblade and Others , paragraphs 34 and 35, and Case C-168/04 Commission v Austria [2006] ECR I‑9041, paragraph 37).
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34 Even if there is no harmonisation in the field, the freedom to provide services, as one of the fundamental principles of the Treaty, may be restricted only by rules justified by overriding requirements relating to the public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established (see, in particular, Case 279/80 Webb [1981] ECR 3305, paragraph 17, Case C-180/89 Commission v Italy [1991] ECR I-709, paragraph 17, Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 18, Säger, cited above, paragraph 15, Vander Elst, cited above, paragraph 16, and Guiot, cited above, paragraph 11).
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71 In that connection, it must be observed that the sectoral pension fund itself determines the amount of the contributions and benefits and that the Fund operates in accordance with the principle of capitalisation.
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37. Furthermore, funds which, without being collective investment undertakings within the meaning of the UCITS Directive, display characteristics identical to theirs and thus carry out the same transactions or, at least, display features that are sufficiently comparable for them to be in competition with such undertakings must also be regarded as special investment funds (see, to that effect, judgments in Abbey National , C‑169/04, EU:C:2006:289, paragraphs 53 to 56; JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies , C‑363/05, EU:C:2007:391, paragraphs 48 to 51; Wheels Common Investment Fund Trustees and Others , C‑424/11, EU:C:2013:144, paragraph 24; and ATP PensionService , C‑464/12, EU:C:2014:139, paragraph 47).
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51. Thus, according to the statements put before the court, the management of ITCs falls within the objective of the Sixth Directive and ITCs constitute investment funds comparable to AUTs and OEICs which fall within the definition of ‘special investment funds’. In those circumstances, the exclusion of ITCs from the exemption provided for by Article 13B(d)(6) does not appear justified in the light of the objective of that provision and the principle of fiscal neutrality.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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25. As regards Mr Cipolla’s pleas of inadmissibility, it should be recalled that questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑300/01 Salzmann [2003] ECR I-4899, paragraphs 29 and 31). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39, and Case C-466/04 Acereda Herrera [2006] ECR I-0000, paragraph 48).
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48. Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Bosman and Others , paragraph 61, and Idéal tourisme , paragraph 20).
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57. Such systems can consequently be assessed on the basis of the Treaty provisions relating to the free movement of goods.
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23. It is true that the Court has already held that, in tax law, the taxpayers’ residence may constitute a factor that might justify national rules involving different treatment for resident and non-resident taxpayers. ( Marks & Spencer , paragraph 37).
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37. In that regard, it must be noted that, in tax law, the taxpayers’ residence may constitute a factor that might justify national rules involving different treatment for resident and non-resident taxpayers. However, residence is not always a proper factor for distinction. In effect, acceptance of the proposition that the Member State in which a company seeks to establish itself may freely apply to it a different treatment solely by reason of the fact that its registered office is situated in another Member State would deprive Article 43 EC of all meaning (see Case 270/83 Commission v France [1986] ECR 273, paragraph 18).
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29. Consequently, the failure of an economic operator to abide by its contractual obligations can, in principle, be considered as professional misconduct.
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27
Therefore, the power conferred on the Member States by Article 1(2) of the Parent-Subsidiary Directive to apply, in the field governed by that directive, domestic or agreement-based provisions in order to prevent fraud and abuse cannot be given an interpretation going beyond the actual terms of that provision (see, to that effect, judgment of 25 September 2003, Océ van der Grinten, C‑58/01, EU:C:2003:495, paragraph 86).
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86. It is to be remembered that derogations from a general principle are to be interpreted strictly. As regards, in particular, the principle of exemption from withholding tax laid down in Article 5(1) of the Directive, the Court thus held at paragraph 27 of its judgment in Denkavit and Others , cited above, in relation to Article 3(2) of the Directive that since Article 3(2) constitutes a derogation from that principle it is to be interpreted strictly and that the option which it allows the Member States cannot be given an interpretation going beyond its actual words.
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À titre liminaire, il convient de relever qu’il ressort de l’exposé des antécédents du présent litige que, bien que la demande d’enregistrement en cause ait été introduite sous l’empire du règlement no 40/94, tant la décision de la division d’opposition mentionnée au point 14 du présent arrêt que la décision litigieuse ont été rendues après l’entrée en vigueur du règlement no 207/2009 et font référence à ce règlement. Celui-ci ayant toutefois opéré une codification du règlement no 40/94 et les dispositions pertinentes de ce dernier n’ayant subi aucune modification à l’occasion de ladite codification, il sera, dans la suite du présent arrêt, exclusivement fait référence aux dispositions du règlement no 207/2009 (voir, par analogie, arrêt du 26 septembre 2013, Centrotherm Systemtechnik/OHMI et centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, points 32 et 33).
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18 The national authorities must consequently ensure the repayment of sums unduly charged on the basis of Community regulations which are subsequently declared invalid by the Court (see the judgment in Case 130/79 Express Dairy Foods v Intervention Board for Agricultural Produce [1980] ECR 1887, paragraph 14).
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14 THE REPLY TO QUESTION 2 SHOULD THEREFORE BE THAT IT IS FOR THE NATIONAL AUTHORITIES TO DECIDE AS TO THE RECOVERY OF SUMS UNDULY CHARGED ON THE BASIS OF COMMUNITY REGULATIONS WHICH HAVE BEEN DECLARED INVALID ; IT IS FOR THEM TO SETTLE IN TERMS OF THE NATIONAL LAW APPLICABLE ALL ANCILLARY QUESTIONS SUCH AS WHETHER THE FACT THAT IT MAY HAVE BEEN POSSIBLE FOR THE CHARGE IMPROPERLY IMPOSED TO BE PASSED ON TO OTHER TRADERS OR TO CONSUMERS SHOULD BE TAKEN INTO ACCOUNT .
THIRD QUESTION
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33. In Case C-1/94 Cavarzere Produzioni Industriali and Others [1995] ECR I-2363, paragraph 34), the Court acknowledged that the pow er of manoeuvre conferred on Member States by Article 25 of Regulation No 1785/81 may be exercised at the same time as an adjustment of quotas pursuant to Article 2 of Regulation No 193/82 following a transfer of undertakings or factories, provided that the specific conditions governing the application of each of those provisions are complied with.
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110. Since the question of interpretation raised cannot be resolved by the wording of Clause 4 of the framework agreement, it is necessary, in accordance with settled case-law, to take into consideration the context and the objectives pursued by the rules of which that clause is part (see, in particular, Case 292/82 Merck [1983] ECR 3781, paragraph 12; Case 337/82 St. Nikolaus Brennerei und Likörfabrik [1984] ECR 1051, paragraph 10; Case C‑223/98 Adidas [1999] ECR I‑7081, paragraph 23; and Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 21).
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21. As regards that concept, it should be pointed out that, according to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording, but also its context and the objectives pursued by the rules of which it is part (see Case C‑17/03 VEMW and Others [2005] ECR I‑4983, paragraph 41, and Case C‑391/05 Jan De Nul [2007] ECR I‑0000, paragraph 20).
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73. No argument has been put forward which would justify giving the "standstill" clause relating to freedom of movement for workers a narrower scope than that given to the same clause relating to freedom of establishment and freedom to provide services.
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57 According to the case-law of the Court, the Treaty rules on competition do not apply to activity which, by its nature, its aim and the rules to which it is subject does not belong to the sphere of economic activity (see, to that effect, Joined Cases C-159/91, C-160/91 Poucet and Pistre [1993] ECR I-637, paragraphs 18 and 19, concerning the management of the public social security system), or which is connected with the exercise of the powers of a public authority (see, to that effect, Case C-364/92 Sat Fluggesellschaft [1994] ECR I-43, paragraph 30, concerning the control and supervision of air space, and Case C-343/95 Diego Calì & Figli [1997] ECR I-1547, paragraphs 22 and 23, concerning anti-pollution surveillance of the maritime environment).
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23 Such surveillance is connected by its nature, its aim and the rules to which it is subject with the exercise of powers relating to the protection of the environment which are typically those of a public authority. It is not of an economic nature justifying the application of the Treaty rules on competition (Case C-364/92 SAT Fluggesellschaft v Eurocontrol [1994] ECR I-43, paragraph 30).
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37. In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national.
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45. As regards the organisation and commercial exploitation of motorcycling events by a legal person such as ELPA, the Greek Government has not claimed that ELPA has been entrusted with the exercise of those activities through an act of public authority. It is not therefore necessary to examine further whether those activities may constitute a service of general economic interest (see, to that effect, Case 127/73 BRT and Société belge des auteurs, compositeurs et éditeurs [1974] ECR 313, paragraph 20, and Case 66/86 Saeed Flugreisen and Silver Line Reisebüro [1989] ECR 803, paragraph 55).
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55 That provision may be applied to carriers who may be obliged, by the public authorities, to operate on routes which are not commercially viable but which it is necessary to operate for reasons of the general interest . It is necessary in each case for the competent national administrative or judicial authorities to establish whether the airline in question has actually been entrusted with the task of operating on such routes by an act of the public authority ( judgment of 27 March 1974 in Case 127/73 Belgische Radio en Televisie v Sabam (" BRT-II ") (( 1974 )) ECR 313 ).
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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32. The first paragraph of Article 1(a) of the Directive defines waste as ‘any substance or object in the categories set out in Annex I [to the Directive] which the holder discards or intends ... to discard’. The annex referred to clarifies and illustrates that definition by providing a list of categories of substances and objects which may be classified as ‘waste’. That list is intended only as guidance, however, and the classification of a substance or object as waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see, to that effect, Case C‑129/96 Inter-Environnement Wallonie [1997] ECR I‑7411, paragraph 26; Case C‑1/03 Van de Walle and Others [2004] ECR I‑7613, paragraph 42; and Case C‑252/05 Thames Water Utilities [2007] ECR I‑3883, paragraph 24).
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26 First of all, it follows from the wording of Article 1(a) of Directive 75/442, as amended, that the scope of the term `waste' turns on the meaning of the term `discard'.
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36. It should be added that in order to assess the degree of similarity between the marks concerned, it is necessary to determine the degree of visual, aural or conceptual similarity between them and, where appropriate, to assess the importance to be attached to those various factors, taking account of the category of goods or services in question and the circumstances in which they are marketed (see Lloyd Schuhfabrik Meyer , paragraph 27).
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26. The Court has stated in this regard that taxes, duties and charges must in any event be regarded as being imposed on the movement of goods and services in a way comparable to VAT if they exhibit the essential characteristics of VAT, even if they are not identical to it in every way (see Case C-200/90 Dansk Denkavit and Poulsen Trading [1992] ECR I-2217, paragraphs 11 and 14, and Case C-308/01 GIL Insurance and Others [2004] ECR I-4777, paragraph 32).
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14 However, for a tax to be characterized as a turnover tax, it is not necessary for it to resemble VAT in every respect; it is sufficient for it to exhibit the essential characteristics of VAT. In the present case, the differences which have been mentioned do not affect the nature of a levy such as the Danish levy, which resembled VAT in all essential respects. It follows that, notwithstanding those differences, the levy still retained the character of a turnover tax.
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34
In addition, as provided in Article 108(4) TFEU, the Commission may adopt regulations relating to the categories of State aid that the Council has, pursuant to Article 109 TFEU, determined may be exempt from the procedure provided for in Article 108(3) TFEU.
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28. It follows that in order to determine whether a private law body is to be classified as a body governed by public law it is only necessary to establish whether the body in question satisfies the three cumulative conditions laid down in the second subparagraph of Article 1(b) of Directives 93/36 and 93/37, since an entity’s private law status does not constitute a criterion for precluding it from being classified as a contracting authority for the purposes of those directives (Case C‑214/00 Commission v Spain , paragraphs 54, 55 and 60).
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54. It is from that point of view that the Court, for the purposes of settling the question whether various private law entities could be classified as bodies governed by public law, has proceeded in accordance with settled case-law and merely ascertained whether those entities fulfilled the three cumulative conditions set out in the second subparagraph of Article 1(b) of Directives 92/50, 93/36 and 93/37, considering that the method in which the entity concerned has been set up was irrelevant in that regard (see to this effect, in particular, Mannesmann Anglagenbau Austria and Others , cited above, paragraphs 6 and 29; Case C-360/96 BFI Holding [1998] ECR I-6821, paragraphs 61 and 62; and Commission v France , cited above, paragraphs 50 and 60).
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22 Consequently, if the aim of the refusal by a Member State to allow for an export transaction a VAT exemption laid down by the Sixth Directive is to penalize the breach of a national provision requiring authorization for such an export, the refusal serves a purpose alien to that of the Sixth Directive.
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53. Where the transferring resident company demonstrates that the reincorporated losses are definitive losses for the purposes of paragraph 55 of the judgment in Marks & Spencer (C‑446/03, EU:C:2005:763), it is contrary to Article 49 TFEU to preclude the possibility for that company of deducting from its taxable profits in the Member State of its residence the losses incurred by a non-resident establishment (judgment in Commission v United Kingdom , C‑172/13, EU:C:2015:50, paragraph 27).
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27. According to paragraph 56 of the judgment in Marks & Spencer (EU:C:2005:763), where, in one Member State, the resident parent company demonstrates to the tax authorities that a non-resident subsidiary has sustained definitive losses, as described in paragraph 55 of that judgment, it is contrary to Articles 49 TFEU to preclude the possibility for the parent company to deduct from its taxable profits in that Member State the losses incurred by its non-resident subsidiary.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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55. As a preliminary point, it should be recalled that Article 34 of Regulation No 44/2001 must be interpreted strictly inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation (see Case C‑414/92 Solo Kleinmotoren [1994] ECR I-2237, paragraph 20; Case C‑7/98 Krombach [2000] ECR I-1935, paragraph 21, and Case C-38/98 Renault [2000] ECR I-2973, paragraph 26). With regard, more specifically, to the public-policy clause in Article 34(1) of the regulation, it may be relied on only in exceptional cases (see Case 145/86 Hoffmann [1988] ECR 645, paragraph 21; Case C‑78/95 Hendrikman and Feyen [1996] ECR I-4943, paragraph 23; Krombach , paragraph 21, and Renault , paragraph 26).
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21 AS FAR AS THE SECOND PART OF THE THIRD QUESTION IS CONCERNED, IT SHOULD BE NOTED THAT, ACCORDING TO THE SCHEME OF THE CONVENTION, USE OF THE PUBLIC-POLICY CLAUSE, WHICH "OUGHT TO OPERATE ONLY IN EXCEPTIONAL CASES" ( JENARD REPORT, CITED ABOVE, AT P . 44 ) IS IN ANY EVENT PRECLUDED WHEN, AS HERE, THE ISSUE IS WHETHER A FOREIGN JUDGMENT IS COMPATIBLE WITH A NATIONAL JUDGMENT; THE ISSUE MUST BE RESOLVED ON THE BASIS OF THE SPECIFIC PROVISION UNDER ARTICLE 27 ( 3 ), WHICH ENVISAGES CASES IN WHICH THE FOREIGN JUDGMENT IS IRRECONCILABLE WITH A JUDGMENT GIVEN IN A DISPUTE BETWEEN THE SAME PARTIES IN THE STATE IN WHICH ENFORCEMENT IS SOUGHT .
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57. On the other hand, those rights may be infringed where, during their placement under a suspensive procedure in the customs territory of the European Union, or even before their arrival in that territory, goods coming from non-member States are the subject of a commercial act directed at European Union consumers, such as a sale, offer for sale or advertising (see Class International , paragraph 61, and Case C‑324/09 L’Oréal and Others [2011] ECR I‑0000, paragraph 67).
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25. As regards, first, the principle of fiscal neutrality, it is a fundamental principle of the common system of VAT (see, inter alia, Case C‑454/98 Schmeink & Cofreth and Strobel [2000] ECR I‑6973, paragraph 59) which precludes, on the one hand, treating similar goods, which are thus in competition with each other, differently for VAT purposes (Case C‑283/95 Fischer [1998] ECR I‑3369, paragraphs 21 and 27, and Case C-481/98 Commission v France [2001] ECR I‑3369, paragraph 22) and, on the other, treating similar economic transactions, which are therefore in competition with each other, differently for VAT purposes (Case C‑109/02 Commission v Germany [2003] ECR I‑12691, paragraph 20; Case C‑382/02 Cimber Air [2004] ECR I‑8379, paragraph 24; and Case C‑97/06 Navicon [2007] ECR I‑0000. paragraph 21).
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20. None the less, in exercising that power, the Member States must respect the principle of fiscal neutrality. As is apparent from the Court's case-law, that principle precludes in particular treating similar goods and supplies of services, which are thus in competition with each other, differently for VAT purposes, so that those goods or supplies must be subjected to a uniform rate (see Case C-267/99 Adam [2001] ECR I-7467, paragraph 36).
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41. It is true that in the long term, depending on how manufacturers and consumers in fact behave, the programme should have a positive environmental effect as a result of the reduction in energy consumption which it should achieve. However, that is merely an indirect and distant effect, in contrast to the effect on trade in office equipment which is direct and immediate.
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25
The Bundesgerichtshof (Federal Court of Justice) refers to the academic disagreement relating to whether, in order to determine whether someone is identifiable, an ‘objective’ or ‘relative’ criterion must be used. The application of an ‘objective’ criterion would have the consequence that data such as the IP addresses at issue in the main proceedings may be regarded, at the end of the period of use of the websites at issue, as being personal data even if only a third party is able to determine the identity of the data subject, that third party being, in the present case, Mr Breyer’s internet service provider, which stored the additional data enabling his identification by means of those IP addresses. According to a ‘relative’ criterion, such data may be regarded as personal data in relation to an entity such as Mr Breyer’s internet service provider because they allow the user to be precisely identified (see, in that connection, judgment of 24 November 2011, Scarlet Extended, C‑70/10, EU:C:2011:771, paragraph 51), but not being regarded as such with respect to another entity, since that operator does not have, if Mr Breyer has not disclosed his identity during the consultation of those websites, the information necessary to identify him without disproportionate effort.
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51. It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.
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85
That absence of a statement of reasons, which goes to an issue of infringement of essential procedural requirements and thus hinders judicial review by the Court of Justice, involves a matter of public policy which may be raised by the Court of its own motion (see, to that effect, judgments of 20 February 1997, Commission v Daffix, C‑166/95 P, EU:C:1997:73, paragraph 24, and of 28 January 2016, Quimitécnica.com and de Mello v Commission, C‑415/14 P, not published, EU:C:2016:58, paragraph 57 and the case-law cited).
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42. As regards, in the second place, the condition that the reduction must relate to the ‘general level of protection’ afforded to fixed-term workers, this implies that only a reduction on a scale likely to have an effect overall on national legislation relating to fixed-term employment contracts is capable of being covered by clause 8(3) of the framework agreement ( Angelidaki and Others , paragraph 140, and order of 24 April 2009 in Case C‑519/08 Koukou [2008] ECR I‑0065, paragraph 119).
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140. As regards, in the second place, the condition that the reduction must relate to the ‘general level of protection’ afforded to fixed-term workers, this implies that only a reduction on a scale likely to have an effect overall on national legislation relating to fixed-term employment contracts is liable to be covered by clause 8(3) of the Framework Agreement.
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48. Consequently, in the absence of importation at the date of the facts of the dispute in the main proceedings, the goods at issue were not subject to VAT under Article 2(2) of the Sixth Directive.
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26 In that connection it must be observed at the outset that, according to settled case-law of the Court of Justice, by virtue of Article 168a of the EC Treaty and the first paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts (see, in particular, Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 12, the order of 17 September 1996 in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraphs 36 and 39, and Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraphs 18 and 21).
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12 It follows that the appeal may rely only on grounds relating to the infringement of rules of law by the Court of First Instance, to the exclusion of any appraisal of the facts (see Order in Case C-115/90 P Turner v Commission [1991] ECR I-1423).
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26 THEREFORE, AS REGARDS AT LEAST THE SPECIFIC REQUIREMENT OF NATIONALITY OR OF RESIDENCE, ARTICLES 59 AND 60 IMPOSE A WELL-DEFINED OBLIGATION, THE FULFILMENT OF WHICH BY THE MEMBER STATES CANNOT BE DELAYED OR JEOPARDIZED BY THE ABSENCE OF PROVISIONS WHICH WERE TO BE ADOPTED IN PURSUANCE OF POWERS CONFERRED UNDER ARTICLES 63 AND 66 .
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45. On the other hand, the fact that an agreement, decision or concerted practice relates only to the marketing of products in a single Member State is not sufficient to exclude the possibility that trade between Member States might be affected (see Case 246/86 Belasco and Others v Commission [1989] ECR 1-2117, paragraph 33). An agreement, decision or concerted practice extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thereby holding up the economic interpenetration which the Treaty is designed to bring about (Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29, Remia and Others v Commission , cited above, paragraph 22, and Case C‑35/96 Commission v Italy [1998] ECR I‑3851, paragraph 48).
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48 As regards the question whether intra-Community trade is affected, it need merely be pointed out that an agreement extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the compartmentalisation of markets on a national basis, thereby holding up the economic interpenetration which the Treaty is designed to bring about (Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29, and Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 22).
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21 THAT SECOND SENTENCE INDICATES THAT WHEN THE COUNCIL EXERCISES ITS DISCRETIONARY POWER IT MUST , WHEN MAKING THE ANNUAL REVIEW OF THE LEVEL OF REMUNERATION , INCLUDE ANY INCREASES IN SALARIES IN THE PUBLIC SERVICE AS ONE OF ALL THE FACTORS TO BE TAKEN INTO CONSIDERATION .
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45 Van der Kooy v Commission and CIRFS and Others v Commission, cited above, thus concerned particular situations in which the applicant occupied a clearly circumscribed position as negotiator which was intimately linked to the actual subject-matter of the decision, thus placing it in a factual situation which distinguished it from all other persons.
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30 The position of CIRFS in its capacity as negotiator of the discipline is therefore affected by the contested decision. It follows that the application is admissible as far as CIRFS is concerned (judgment in Joined Cases 67, 68 and 70/85 Van der Kooy and Others v Commission [1988] ECR 219).
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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39
Under that provision, matters relating to a contract may be assessed in the courts of the place of performance of the obligation in question, namely the obligation corresponding to the contractual right on which the claimant’s action is based (see, to that effect, judgment of 6 October 1976, De Bloos, 14/76, EU:C:1976:134, paragraphs 10 to 14). In the present case, the action in the main proceedings is based on the alleged invalidity of the contractual obligation consisting of the conveyance of ownership of the immovable property, which, provided that the contract is valid, must be, and which was initially, performed in Austria.
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11 ON THE CONTRARY , THE WORD ' OBLIGATION ' IN THE ARTICLE REFERS TO THE CONTRACTUAL OBLIGATION FORMING THE BASIS OF THE LEGAL PROCEEDINGS .
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46. Point 1.2 of the SME Guidelines states that the favourable consideration given by the Commission to State aid to SMEs is justified by the imperfections in the market which lead to their having to suffer a number of handicaps and which thus limit the socially and economically desirable development of such enterprises.
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35. A taxable person having been subject to such a measure must therefore be able to recalculate his VAT debt in accordance with Article 17(2) of the Sixth Directive, in so far as the goods and services have been used for the purposes of taxable transactions (see Stradasfalti , paragraph 68).
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68. A taxable person which has been subject to that measure must be able to recalculate its VAT debt in accordance with Article 17(2) of the Sixth Directive, in so far as the goods and services have been used for the purposes of taxable transactions.
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31 In the absence of any provisions of Community law on this matter, it is for the national court - which may consider it necessary to commission an expert opinion or a survey of public opinion in order to clarify whether or not a promotional description or statement is misleading - to determine, in the light of its own national law, the percentage of consumers misled by that description or statement which would appear to it sufficiently significant to justify prohibiting its use (see Gut Springenheide and Tusky, cited above, paragraphs 35 and 36).
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