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59. It should be noted that, in the present case, the General Court’s reasoning derives from a misreading of the judgment in AJD Tuna (EU:C:2011:153). In particular, it is clear from paragraphs 105 to 108 of that judgment that, by postponing until 23 June 2008 the entry into force of the measures prohibiting fishing only for purse seiners flying the flag of Spain, without that extra period being objectively justified, the Commission infringed the principle of non-discrimination. Accordingly, it follows from that finding by the Court that, by rejecting all other grounds of appeal seeking to establish the invalidity of Regulation No 530/2008, the judgment in AJD Tuna (EU:C:2011:153) declared that regulation to be invalid only to the extent that the purse seiners flying the flag of Spain were given an extra week of fishing, but maintained the validity of the date of the prohibition set for the remaining fishing vessels, that is 16 June 2008.
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107. Consequently, whilst it was acting on the basis of Article 7(1) of the Basic Regulation in order to end the threat of collapse of the stock of Eastern Atlantic and Mediterranean bluefin tuna as a result of the activity of purse seiners, the Commission deferred until 23 June 2008 the entry into force of the prohibition on fishing solely for Spanish seiners, although that additional time was not objectively justified in view of the objective pursued.
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72. In any event, even if it might have been conceivable, had there been a dispute concerning the interpretation of the Association Agreement as such, to bring the matter before the Association Council, it should be recalled that, as the Court has already held, the fact that the dispute was not referred to the Association Committee, an emanation of the Association Council, cannot be used as justification for derogating from the system of cooperation and respect for the areas of competence as allocated under the Association Agreement (see, by analogy, Sfakianakis , paragraph 52).
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84
According to settled case-law, in proceedings for failure to fulfil obligations under Article 258 TFEU, it is for the Commission to prove the existence of the alleged infringement and to place before the Court the information necessary for it to determine whether the infringement is made out, without the Commission being entitled to rely on any presumption (see, to that effect, judgments of 22 November 2012, Commission v Germany, C‑600/10, not published, EU:C:2012:737, paragraph 13, and of 10 November 2016, Commission v Greece, C‑504/14, EU:C:2016:847, paragraph 111 and case-law cited).
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111
In proceedings for a declaration of failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out (judgment of 9 July 2015, Commission v Ireland, C‑87/14, EU:C:2015:449, paragraph 22 and the case-law cited).
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38 Accordingly, where the protection afforded by a State to names indicating regions or places in its territory is justified under Article 36 of the Treaty, that provision does not preclude such protection from being extended to the territory of another Member State.
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À cet égard, la Cour a déjà jugé que la réglementation d’un État membre qui fait dépendre l’application d’un taux réduit du lieu de résidence du défunt ou du bénéficiaire au moment du décès, lorsqu’elle aboutit à ce que les successions impliquant des non-résidents soient soumises à une charge fiscale plus lourde que celle n’impliquant que des résidents, constitue une restriction à la libre circulation des capitaux (voir, en ce sens, arrêts du 17 octobre 2013, Welte, C‑181/12, EU:C:2013:662, points 25 et 26 ; du 3 septembre 2014, Commission/Espagne, C‑127/12, non publié, EU:C:2014:2130, point 58, ainsi que du 26 mai 2016, Commission/Grèce, C‑244/15, EU:C:2016:359, point 29).
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25. It should be noted that such legislation, which makes the application of a tax-free allowance in respect of the immovable property concerned dependent on the place of residence of the deceased and the heir at the time of the death, leads to succession between non-residents including such property being subject to a higher tax liability than that involving at least one resident and therefore has the effect of reducing the value of that succession (see, by analogy, Eckelkamp and Others , paragraphs 45 and 46; Mattner , paragraphs 27 and 28; and Missionswerk Werner Heukelbach , paragraph 24).
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22. De surcroît, il découle de la jurisprudence que, lorsqu’une directive prévoit expressément que les dispositions de transposition de cette directive contiennent une référence à celle-ci ou sont accompagnées d’une telle référence lors de leur publication officielle, il est en tout état de cause nécessaire d’adopter un acte positif de transposition (voir arrêts du 18 décembre 1997, Commission/Espagne, C‑360/95, Rec. p. I‑7337, point 13, et Commission/Espagne, C‑361/95, Rec. p. I‑7351, point 15, ainsi que du 1 er octobre 2009, Commission/Espagne, C‑502/08, point 21).
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53. It should also be added that the need for precision, in particular with regard to the factual and legislative context of the main proceedings, applies in particular in the area of competition, which is characterised by complex factual and legal situations (see, to that effect, Case C-238/05 Asnef-Équifax and Administración del Estado [2006] ECR I‑11125, paragraph 23, and the order in RAI , paragraph 18).
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23. Finally, as regards the extent of the indications in the decision for referral relating to a possible effect on trade between Member States, it must be borne in mind that the need for precision with regard to the factual and legislative context applies in particular in the area of competition, which is characterised by complex factual and legal situations (see Case C-176/96 Lehtonen and Castors Braine [2000] ECR I‑2681, paragraph 22, and also the order in Case C-190/02 Viacom [2002] ECR I‑8287, paragraph 22).
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Quant à l’argument tiré de la prétendue dénaturation manifeste des faits, tel qu’exposé au point 51 du présent arrêt, il convient
de rappeler que, lorsqu’il allègue une dénaturation d’éléments de preuve par le Tribunal, un requérant doit, en application
de l’article 256 TFUE, de l’article 58, premier alinéa, du statut de la Cour de justice de l’Union européenne et de l’article
168, paragraphe 1, sous d), du règlement de procédure de la Cour, indiquer de façon précise les éléments qui auraient été
dénaturés par celui-ci et démontrer les erreurs d’analyse qui, dans son appréciation, auraient conduit le Tribunal à cette
dénaturation. Par ailleurs, il est de jurisprudence constante de la Cour qu’une dénaturation doit apparaître de façon manifeste
des pièces du dossier, sans qu’il soit nécessaire de procéder à une nouvelle appréciation des faits et des preuves (arrêt
du 8 mars 2016, Grèce/Commission, C‑431/14 P, EU:C:2016:145, point 32).
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92. Wh ilst it is not in dispute that Community law does not detract from the power of the Member States to organise their social security systems, and that, in the absence of harmonisation at Community level, it is for the legislation of each Member State to determine the conditions in which social security benefits are granted, when exercising that power Member States must comply with Community law, in particular the provisions on the freedom to provide services (see, inter alia, Smits and Peerbooms , paragraphs 44 to 46; Müller-Fauré and van Riet , paragraph 100; and Inizan , paragraph 17). Those provisions prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of that freedom in the healthcare sector.
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44 In order to answer the questions as thus reformulated, it should be remembered at the outset that, according to settled case-law, Community law does not detract from the power of the Member States to organise their social security systems (Case 238/82 Duphar and Others [1984] ECR 523, paragraph 16, Case C-70/95 Sodemare and Others [1997] ECR I-3395, paragraph 27, and Case C-158/96 Kohll [1998] ECR I-1931, paragraph 17).
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8. Il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 14 septembre 2004, Commission/Espagne, C‑168/03, Rec. p. I‑8227, point 24, et du 7 juin 2007, Commission/Belgique, C‑254/05, non encore publié au Recueil, point 39).
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16 It is therefore necessary to examine whether the benefit at issue in the main proceedings is directly and effectively linked to protection against any of the risks listed in Article 3(1) of the Directive (see Richardson, paragraph 9).
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9 The Court has also stated that, although the way in which a benefit is granted is not decisive for the purposes of Directive 79/7, the benefit must, in order to fall within its scope, be directly and effectively linked to the protection provided against one of the risks specified in Article 3(1) of the directive (Smithson, cited above, at paragraph 14, and Jackson and Cresswell, cited above, at paragraph 16).
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52. It must first be observed, that the statutory sickness insurance funds at issue in the main proceedings are financed, in accordance with the relevant national rules, by contributions from members, including the contributions paid on their behalf by their employers, by direct payments from the Federal authorities and by compensatory payments between the funds resulting from the risk structure compensation mechanism between them. The sickness funds in question are financed, for the most part, by compulsory contributions from members.
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22
In this connection it must be recalled that, for a national measure to be categorised as State aid within the meaning of Article 107(1) TFEU, there must, first, be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer a selective advantage on the recipient and, fourth, it must distort or threaten to distort competition (see, to that effect, judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 39 and the case-law cited).
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39. Thus, for a national measure to be classified as State aid, first, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer an advantage on the recipient; fourth, it must distort or threaten to distort competition (see to that effect, in particular, Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraphs 38 and 39; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 56; and Case C‑169/08 Presidente del Consiglio dei Ministri [2009] ECR I‑0000, paragraph 52).
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40. Cela implique, plus particulièrement, que les critères d’attribution doivent être formulés, dans le cahier des charges ou dans l’avis de marché, de manière à permettre à tous les soumissionnaires raisonnablement informés et normalement diligents de les interpréter de la même manière (arrêts SIAC Construction, précité, point 42, ainsi que du 4 décembre 2003, EVN et Wienstrom, C‑448/01, Rec. p. I‑14527, point 57) et que, lors d’une évaluation des offres, ces critères doivent être appliqués de manière objective et uniforme à tous les soumissionnaires (arrêt SIAC Construction, précité, point 44).
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36. It is settled case-law that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures having an effect equivalent to quantitative restrictions and thus prohibited by Article 28 EC (see, in particular, Case 8/74 Dassonville [1974] ECR 837, paragraph 5; Case C-420/01 Commission v Italy [2003] ECR I-6445, paragraph 25; and TK-Heimdienst , cited above, paragraph 22).
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22 It is settled case-law that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions and thus prohibited by Article 30 of the Treaty (see, in particular, Case 8/74 Dassonville [1974] ECR 837, paragraph 5).
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19 In that connection, it is undisputed that the taxable value of imported used vehicles is equal to 100% of the price of the vehicle when new where it is less than six months old and 90% of that price where it is more than six months old . On the other hand, the sale of vehicles already registered in Denmark does not give rise to payment of a further registration duty .
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Pour l’application de l’article 110 TFUE, et en particulier pour les besoins de la comparaison entre le régime de taxation
des véhicules d’occasion importés et celui des véhicules d’occasion qui sont achetés sur place, qui constituent des produits
similaires ou concurrents, il y a lieu de prendre en considération non seulement le taux de l’imposition intérieure frappant
directement ou indirectement les produits nationaux et les produits importés, mais également l’assiette et les modalités de
la taxe en cause. Plus précisément, un État membre ne peut percevoir une taxe sur les véhicules d’occasion importés assise
sur une valeur supérieure à la valeur réelle du véhicule, avec pour conséquence une taxation plus lourde de ceux-ci par rapport
à celle des véhicules d’occasion similaires disponibles sur le marché national. La valeur du véhicule d’occasion importé retenue
par l’administration en tant que base d’imposition doit refléter fidèlement la valeur d’un véhicule similaire déjà immatriculé
sur le territoire national (voir arrêt du 20 septembre 2007, Commission/Grèce, C‑74/06, EU:C:2007:534, points 27 et 28 ainsi
que jurisprudence citée).
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28. More specifically, a Member State may not charge tax on imported second-hand motor vehicles based on a value which is higher than the real value of the vehicle with the result that they are taxed more heavily than similar second-hand cars on the domestic market (see, to that effect, Commission v Denmark , paragraph 22). The taxable value imputed to the imported second-hand vehicle by the revenue authorities should faithfully reflect the value of a similar second-hand vehicle already registered on the domestic market (see, inter alia, Weigel , paragraph 71).
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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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21. It should be borne in mind that the information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also enable the governments of the Member States and other interested parties to submit observations pursuant to Article 20 of the Statute of the Court of Justice (order in Case C‑422/98 Colonia Versicherung and Others [1999] ECR I‑1279, paragraph 5). It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties (Joined Cases 141/81 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6; order in Case C‑326/95 Banco de Fomento e Exterior [1996] ECR I‑1385, paragraph 7; and Case C‑176/96 Lehtonen and Castors Braine [2000] ECR I‑2681, paragraph 23). Thus, according to the case-law of the Court, it is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute (see, in particular, order in Case C‑116/00 Laguillaumie [2000] ECR I‑4979, paragraph 16, and Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 38).
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38. The plea of inadmissibility alleging that the national court did not indicate the precise reasons for its uncertainty as to the interpretation of Community law cannot succeed either. According to the case-law of the Court, it is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and on the link it establishes between those provisions and the national legislation applicable to the dispute (see, inter alia, order in Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 16). The decision making the reference fully satisfies such a requirement, as moreover the Advocate General pointed out in paragraph 24 of his Opinion.
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39. The labelling, as defined in Article 1(3)(a) of that directive, is composed of any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on its packaging. Some of those items may in practice be misleading, erroneous, ambiguous, contradictory or incomprehensible.
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20 In that regard, it should be noted that, whilst those provisions, which have direct effect, prohibit imposing unjustified restrictions on the freedoms concerned, they are not sufficient in themselves to ensure elimination of all obstacles to free movement of persons, services and capital, and that the directives provided for by the Treaty in this matter preserve an important scope in the field of measures intended to make easier the effective exercise of the rights arising out of those provisions (see, as far as freedom of establishment is concerned, Case 2/74 Reyners [1974] ECR 631, paragraphs 29, 30 and 31).
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29 IT IS NOT POSSIBLE TO INVOKE AGAINST SUCH AN EFFECT THE FACT THAT THE COUNCIL HAS FAILED TO ISSUE THE DIRECTIVES PROVIDED FOR BY ARTICLES 54 AND 57 OR THE FACT THAT CERTAIN OF THE DIRECTIVES ACTUALLY ISSUED HAVE NOT FULLY ATTAINED THE OBJECTIVE OF NON-DISCRIMINATION REQUIRED BY ARTICLE 52 .
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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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64
The situations referred to in the preceding paragraph have the common feature that, although they are governed by legislation which falls, a priori, within the competence of the Member States, namely legislation on the right of entry and residence of third-country nationals outside the scope of provisions of EU secondary legislation, which provide for the grant of such a right under certain conditions, those situations nonetheless have an intrinsic connection with the freedom of movement and residence of a Union citizen, which precludes the right of entry and residence from being refused to those nationals in the Member State of residence of that citizen, in order to avoid interference with that freedom (judgments of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 75, and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 30 and the case-law cited).
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75
The above situations have the common feature that, although they are governed by legislation which falls, a priori, within the competence of the Member States, namely legislation on the right of entry and residence of third-country nationals outside the scope of provisions of secondary legislation which provide for the grant of such a right under certain conditions, they nonetheless have an intrinsic connection with the freedom of movement and residence of a Union citizen, which prevents the right of entry and residence being refused to those nationals in the Member State of residence of that citizen, in order not to interfere with that freedom (see, to this effect, judgments of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 72, and of 8 May 2013, Ymeraga and Others, C‑87/12, EU:C:2013:291, paragraph 37).
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70 Consequently, it is necessary to examine whether, in so far as they concern medical services provided within a hospital infrastructure, such as those at issue in the main proceedings, such rules can be objectively justified.
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21. However, the substantive rules of Community law may exceptionally be interpreted as applying to situations existing before their entry into force in so far as it follows clearly from their terms, objectives or general scheme that such effect must be given to them (see Joined Cases 212/80 to 217/80 Salumi and Others [1981] ECR 2735, paragraph 9; Case C-34/92 GruSa Fleisch [1993] ECR I‑4147, paragraph 22; and Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869, paragraph 119).
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9 ALTHOUGH PROCEDURAL RULES ARE GENERALLY HELD TO APPLY TO ALL PROCEEDINGS PENDING AT THE TIME WHEN THEY ENTER INTO FORCE , THIS IS NOT THE CASE WITH SUBSTANTIVE RULES . ON THE CONTRARY , THE LATTER ARE USUALLY INTERPRETED AS APPLYING TO SITUATIONS EXISTING BEFORE THEIR ENTRY INTO FORCE ONLY IN SO FAR AS IT CLEARLY FOLLOWS FROM THEIR TERMS , OBJECTIVES OR GENERAL SCHEME THAT SUCH AN EFFECT MUST BE GIVEN TO THEM .
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32. Il en va ainsi même si ce risque est très limité, pourvu que le pouvoir adjudicateur ait transféré au concessionnaire l’intégralité ou, tout au moins, une part significative du risque d’exploitation qu’il encourt (voir, en ce sens, arrêts Eurawasser, C-206/08, EU:C:2009:540, point 77, ainsi que Norma-A et Dekom, C-348/10, EU:C:2011:721, point 45).
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31. In the same way, taking into account the subject-matter of the dispute in the main proceedings, the non-reduction clause laid down in Clause 8(3) of the Framework Agreement is also not relevant in the present case. As is clear from the case-law of the Court, in order for an alleged reduction to be caught by the prohibition laid down by that clause, it must, first, be connected to the ‘implementation’ of the Framework Agreement and, second, relate to the ‘general level of protection’ afforded to fixed-term workers (Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others [2009] ECR I‑3071, paragraph 126, and, to that effect, Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 52).
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126. It follows that reduction of the protection which workers are guaranteed in the sphere of fixed-term employment contracts is not prohibited as such by the Framework Agreement but, in order for that reduction to be caught by the prohibition laid down by clause 8(3) of the agreement, it must, first, be connected to the ‘implementation’ of the Framework Agreement and, second, relate to the ‘general level of protection’ afforded to fixed-term workers (see, to that effect, Mangold , paragraph 52).
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34 It is settled case-law that entitlement to the recovery of sums levied by a Member State in breach of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions as interpreted by the Court. The Member State is therefore in principle required to repay charges levied in breach of Community law. In the absence of Community rules governing the matter, it is for the domestic legal system of the Member State to lay down the detailed procedural rules for actions seeking the recovery of sums wrongly paid, provided that those rules are not less favourable than those governing similar domestic actions and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (Fantask and Others, cited above, paragraphs 38 and 47).
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52. Furthermore, respect for the right to a fair hearing in any procedure brought against a person which may lead to an act adversely affecting him, in particular a procedure which may lead to penalties being imposed, constitutes a fundamental principle of Community law. That principle requires that any person on whom a penalty may be imposed must be placed in a position in which he can effectively make known his view of the matters on the basis of which the penalty is imposed and can produce any evidence relevant to his defence (see, to that effect, Case C-135/92 Fiskano v Commission [1994] ECR I-2885, paragraphs 39 and 40, and Case C-142/87 Belgium v Commission ( " Tubemeuse " ) [1990] ECR I-959, paragraphs 46 and 47).
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40 It follows from that case-law that observance of the right to be heard requires that any person on whom a penalty may be imposed must be placed in a position in which he can effectively make known his view of the matters on the basis of which the Commission imposes the penalty.
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21 IT SHOULD BE OBSERVED FIRST OF ALL THAT THE DISPUTE CONCERNS A TRANSACTION FALLING WITHIN LIST B ANNEXED TO THE FIRST DIRECTIVE , WHICH LISTS THE CAPITAL MOVEMENTS WHICH ARE FULLY LIBERALIZED . THE EXTENT OF THAT LIBERALIZATION IS EXPLAINED IN ARTICLE 67 OF THE TREATY , ACCORDING TO WHICH THE FREE MOVEMENT OF CAPITAL IS TO ENTAIL THE ABOLITION OF RESTRICTIONS ON THE MOVEMENT OF CAPITAL BELONGING TO PERSONS RESIDENT IN MEMBER STATES AND ANY DISCRIMINATION BASED ON THE NATIONALITY OR PLACE OF RESIDENCE OF THE PARTIES OR ON THE PLACE WHERE SUCH CAPITAL IS INVESTED .
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54. The first condition requires the treatment in question to be among the benefits provided for by the legislation of the Member State on whose territory the insured person resides, whereas the second condition requires that the treatment which the latter plans to undergo in a Member State other than that on the territory of which he resides cannot be given within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of his disease ( Inizan , paragraphs 42 and 44, and Watts , paragraphs 56 and 57).
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44. That second condition requires, as noted in paragraph 37 of the present judgment, that the treatment which the patient intends to undergo in a Member State other than that in which he resides cannot be given to the patient within the time normally necessary for obtaining the treatment in question in the Member State of residence taking account of his current state of health and the probable course of the disease.
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24. Full harmonisation in the field of non-life insurance rates precluding any national measure liable to have effects on rates cannot be presumed in the absence of a clearly expressed intention to this effect on the part of the Community legislature.
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24 That power of the Member States is consistent with one of the aims of the Sixth Directive, that of ensuring that VAT is levied and collected, under the supervision of the tax authorities (see the seventeenth recital in the preamble and Article 22(2) and (8)). In that regard, the Court held in Joined Cases 123/87 and 330/87 Jeunehomme and EGI v Belgian State [1988] ECR 4517, at paragraphs 16 and 17, that the Member States may require invoices to contain additional information to ensure the correct levying of VAT and permit supervision by the authorities, in so far as such particulars do not, by reason of their number or technical nature, render the exercise of the right to deduct input tax practically impossible or excessively difficult.
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17 However, the requirement on the invoice of particulars other than those set out in Article 22 ( 3 ) ( b ) of the Sixth Directive, as a condition for the exercise of the right to deduction, must be limited to what is necessary to ensure the correct levying of value-added tax and permit supervision by the tax authorities . Moreover, such particulars must not, by reason of their number or technical nature, render the exercise of the right to deduction practically impossible or excessively difficult .
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27. It follows that those measures may be freely defined by the Member States, in compliance with the Treaty and the general principles of European Union law (see, to that effect, Case C-490/04 Commission v Germany [2007] ECR I-6095, paragraph 19, and Case C-341/05 Laval un Partneri [2007] ECR I-11767, paragraph 60).
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39 The national court was uncertain whether the scope of that directive was wider than that of the Sex Discrimination Act 1975, which it had to apply and which in its view applied only to discrimination based on the worker's belonging to one or other of the sexes.
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32 It follows that, unlike periodic payment of pensions, inequality of employers' contributions paid under funded defined-benefit schemes, which is due to the use of actuarial factors differing according to sex, is not struck at by Article 119.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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28. In order to reply to that argument, it should be borne in mind from the outset that, in accordance with settled case-law, the condition that the decision forming the subject-matter of the proceedings must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 230 EC, requires the contested Community measure to affect directly the legal situation of the individual and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see, in particular, Case C-404/96 P Glencore Grain v Commission [1998] ECR I-2435, paragraph 41, and Case C-486/01 P National Front v Parliament [2004] ECR I‑6289, paragraph 34).
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34. In that regard, it is appropriate to bear in mind that, by virtue of settled case-law, the condition that the decision forming the subject-matter of the proceedings must be of ‘direct concern’ to a natural or legal person, as it is stated in the fourth paragraph of Article 230 EC, requires the Community measure complained of to affect directly the legal situation of the individual and leave no discretion to the addressees of that measure, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see, inter alia, Case C‑404/96 P Glencore Grain v Commission [1998] ECR I‑2435, paragraph 41, and the case-law cited).
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14 That interpretation is borne out by the objective of the common system introduced by the Sixth VAT Directive, which aims in particular to secure equal treatment for taxable persons. That principle would be disregarded if a purchaser were to be taxed on credit granted by his supplier, whereas a purchaser seeking credit from a bank or another lender received an exempted credit.
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37. However, in accordance with settled case-law, 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‑188/07 Commune de Mesquer [2008] ECR I‑4501, paragraph 53, and Case C‑263/05 Commission v Italy [2007] ECR I‑11745, paragraph 32).
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53. It should be noted, to begin with, that Annex I to Directive 75/442 provides lists of substances and objects that may be classified as waste. However, the lists are only intended as guidance, and the classification of waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see Case C‑1/03 Van de Walle and Others [2004] ECR I‑7613, paragraph 42).
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En effet, il est usuel, étant donné que l’interdiction de participer à des pratiques et à des accords anticoncurrentiels ainsi que les sanctions que les contrevenants peuvent encourir sont notoires, que les activités que ces pratiques et ces accords comportent se déroulent de manière clandestine, que les réunions se tiennent secrètement, le plus souvent dans un pays tiers, et que la documentation y afférente soit réduite au minimum. Même si la Commission découvre des pièces attestant de manière explicite une prise de contact illégitime entre des opérateurs, telles que les comptes rendus d’une réunion, celles-ci ne seront normalement que fragmentaires et éparses, de sorte qu’il se révèle souvent nécessaire de reconstituer certains détails par des déductions (arrêt du 17 juin 2010, Lafarge/Commission, C‑413/08 P, EU:C:2010:346, point 22).
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17. In order to answer that question, it should be noted first that the system of protection introduced by the directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge (judgments in Aziz , C‑415/11, EU:C:2013:164, paragraph 44, and Sánchez Morcillo and Abril García , C‑169/14, EU:C:2014:2099, paragraph 22).
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44. In replying to that question, it should be noted first that the system of protection introduced by the directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge ( Banco Español de Crédito , paragraph 39).
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42 In the light of those arguments, it is necessary to ascertain whether in this instance the statement of objections was couched in terms that, albeit succinct, were sufficiently clear to enable the parties concerned properly to take cognizance of the conduct complained of by the Commission. It is only on that condition that the statement of objections could have fulfilled its function under the Community regulations of giving undertakings all the information necessary to enable them to defend themselves properly, before the Commission adopts a final decision (see, on that point, the judgments in Case 45/69 Boehringer Mannheim v Commission [1970] ECR 769, Case 52/69 Geigy v Commission [1972] ECR 787, Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73 Suiker Unie v Commission [1975] ECR 1663, Case 27/76 United Brands v Commission [1978] ECR 207 and Case 85/76 Hoffman-La Roche v Commission [1979] ECR 461).
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69
In that regard, it should be pointed out that Framework Decision 2002/584 seeks, by the establishment of a simplified and effective system for the surrender of persons convicted or accused of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the objective set for the European Union to become an area of freedom, security and justice, founded on the high level of trust which should exist between the Member States in accordance with the principle of mutual recognition (see, to that effect, judgments of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraphs 36 and 37, and of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 75 and 76).
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37. Framework Decision 2002/584 thus seeks, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the objective set for the European Union to become an area of freedom, security and justice by basing itself on the high degree of confidence which should exist between the Member States ( Radu , paragraph 34).
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42. It therefore appears that consent, which is tantamount to the proprietor’s renunciation of his exclusive right within the meaning of Article 5, constitutes the decisive factor in the extinction of that right and must, therefore, be so expressed that an intention to renounce that right is unequivocally demonstrated. Such intention will normally be gathered from an express statement of consent (see, to that effect, Zino Davidoff and Levi Strauss , paragraphs 41, 45 and 46).
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54. In the first place, it should be recalled that, according to settled case‑law, the relatively small amount of aid or the relatively small size of the undertaking which receives it do not as such exclude the possibility that intra-Community trade might be affected (see Case C-142/87 Belgium v Commission [1990] ECR I-959, ‘ Tubemeuse ’, paragraph 43; Joined Cases C‑278/92 to C‑280/92 Spain v Commission [1994] ECR I‑4103, paragraph 42, and Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I‑7747, paragraph 81). Aid of a relatively small amount is liable to affect competition and trade between Member States where there is strong competition in the sector in which the undertakings which receive it operate (see Case 259/85 France v Commission [1987] ECR 4393, paragraph 24, and Case C‑351/98 Spain v Commission [2002] ECR I‑8031, paragraph 63).
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42 It should be added that the relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that intra-Community trade might be affected (judgment in Case C-142/87 Belgium v Commission [1990] ECR I-959, paragraph 43).
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36THE REASONS ON WHICH A PIECE OF LEGISLATION IS BASED MAY APPEAR NOT ONLY FROM ITS OWN WORDING , BUT ALSO FROM THE WHOLE BODY OF THE LEGAL RULES GOVERNING THE FIELD UNDER CONSIDERATION .
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50
International agreements which are concerned with safeguarding and organising the protection of intellectual property rights on the territory of the parties are among those that may fall within that policy, provided that they satisfy the two conditions recalled in the preceding paragraph of the present judgment (see, to that effect, judgment of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraphs 58 to 61, and Opinion 2/15 (Free Trade Agreement with Singapore) of 16 May 2017, EU:C:2017:376, paragraphs 116, 121, 122, 125 and 127).
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60. Consequently, as the Commission observes, to regard the rules on patentable subject-matter in Article 27 of the TRIPs Agreement as falling within the field of the common commercial policy rather than the field of the internal market correctly reflects the fact that the context of those rules is the liberalisation of international trade, not the harmonisation of the laws of the Member States of the European Union.
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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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30. It is only where the Community has intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the Community measure in question in the light of the WTO rules (Case C‑149/96 Portugal v Council [1999] ECR I‑8395, paragraph 49; Biret International v Council , paragraph 53; and Van Parys , paragraph 40 and the case-law cited).
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53. It is only where the Community has intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the Community measure in question in the light of the WTO rules (see, as regards GATT 1947, Fediol v Commission , paragraphs 19 to 22, and Nakajima v Council , paragraph 31, and, as regards the WTO agreements, Portugal v Council , paragraph 49).
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45. In the case in the main proceedings, the action is between individuals, and its object is to obtain damages for unlawfully taking possession of land, the delivery up of that land, its restoration to its original state and the cessation of any other unlawful intervention. That action is brought not against conduct or procedures which involve an exercise of public powers by one of the parties to the case, but against acts carried out by individuals.
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43. In that regard, the Court has acknowledged, first, that the objective of maintaining a balanced medical and hospital service open to all may fall within the derogations on grounds of public health provided for in Article 46 EC, in so far as such an objective contributes to the attainment of a high level of health protection ( Kohll , paragraph 50; Müller‑Fauré and van Riet , paragraphs 67 and 71, and Watts , paragraph 104), and, secondly, that it cannot be excluded that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying an obstacle to the principle of freedom to provide services ( Kohll , paragraph 41; Müller‑Fauré and van Riet , paragraph 73; Watts , paragraph 103, and Elchinov , paragraph 42).
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42. The Court has held that it cannot be excluded that the possible risk of seriously undermining the financial balance of a social security system may constitute an overriding reason in the public interest capable of justifying an obstacle to the freedom to provide services. The Court has likewise acknowledged that the objective of maintaining a balanced medical and hospital service open to all may also fall within the derogations on grounds of public health under Article 46 EC in so far as it contributes to the attainment of a high level of health protection. It has also held that Article 46 EC permits Member States to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for public health, and even the survival of the population (see, to that effect, Kohll , paragraphs 41, 50 and 51; Smits and Peerbooms , paragraphs 72 to 74; Müller-Fauré and van Riet , paragraphs 67 and 73; and Watts , paragraphs 103 to 105).
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32. La Cour a déjà jugé que les mesures nationales restrictives de l’exercice des libertés fondamentales garanties par le traité CE ne peuvent être justifiées que si elles remplissent quatre conditions, à savoir s’appliquer de manière non discriminatoire, répondre à des raisons impérieuses d’intérêt général, être propres à garantir la réalisation de l’objectif qu’elles poursuivent et ne pas aller au-delà de ce qui est nécessaire pour l’atteindre (voir arrêts du 30 novembre 1995, Gebhard, C‑55/94, Rec. p. I‑4165, point 37; du 9 mars 1999, Centros, C‑212/97, Rec. p. I‑1459, point 34; du 4 juillet 2000, Haim, C‑424/97, Rec. p. I‑5123, point 57, et Commission/Grèce, précité, point 49).
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33 Articles 85 and 86 of the Treaty apply only to anti-competitive conduct engaged in by undertakings on their own initiative (see to that effect, as regards Article 86 of the Treaty, Case 41/83 Italy v Commission [1985] ECR 873, paragraphs 18 to 20; Case C-202/88 France v Commission - the so-called `telecommunications terminals' judgment - [1991] ECR I-1223, paragraph 55; and Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 20). If anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 85 and 86 do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings (see also Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 36 to 72, and more particularly paragraphs 65, 66, 71 and 72).
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60 FURTHER, FIXING LARGE MINIMUM AMOUNTS ( 1 000 METRIC TONS ) FOR EACH INDIVIDUAL TENDER SUBMITTED FOR AN AWARD - TOGETHER WITH THE ABSENCE OF ANY INDEPENDENT DISTRIBUTIVE NETWORK AND THE FACT THAT IT WAS ALMOST IMPOSSIBLE FOR INDUSTRIAL CONSUMERS, WHO HAVE NO STORAGE FACILITIES AND MORE OFTEN THAN NOT HAVE TO OBTAIN THEIR SUPPLIES ON A DAY TO DAY BASIS, TO TAKE PART IN THE INVITATIONS TO TENDER - OF NECESSITY RESULTED IN ITALIAN PRODUCERS, IN ACCORDANCE WITH THE WISH OF THE NATIONAL AUTHORITIES, ALONE BEING ABLE TO ATTEND THE INVITATIONS TO TENDER AND THIS WAS BOUND TO MAKE FOREIGN SUPPLIERS OFFER THE SAID PRODUCERS A LARGE PROPORTION OF THE SUGAR WHICH THEY INTENDED TO EXPORT TO ITALY .
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18 It should first be noted that the Sixth Directive expressly refers to forms of gambling in Article 13(B)(f), where it provides for their exemption, and in Article 33, where it states that its provisions are not to prevent the Member States from maintaining or introducing taxes on betting and gambling. It is thus clear that such transactions do not, as such, fall outside the Sixth Directive.
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100
Finally, under the general international-law principle of the relative effect of treaties, of which the rule contained in Article 34 of the Vienna Convention is a specific expression, treaties do not impose any obligations, or confer any rights, on third States without their consent (see judgment of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraphs 44 and 52).
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44. Among the relevant rules that may be relied on in the context of the relations between the parties to the EC-Israel Association Agreement is the general international law principle of the relative effect of treaties, according to which treaties do not impose any obligations, or confer any rights, on third States (‘ pacta tertiis nec nocent nec prosunt ’) . That principle of general international law finds particular expression in Article 34 of the Vienna Convention, under which a treaty does not create either obligations or rights for a third State without its consent.
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11. The Kingdom of Spain provided the Commission with additional information by letter of 26 March 2010 and by four e-mails of 3 May 2010.
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28. In order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring the person liable for the customs debt to prove the place of origin of the goods declared, in that the onus is on him to refute the relevance of indirect evidence used by the customs authorities, is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which the person liable could not possess, it is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry (see, to that effect, judgment in Direct Parcel Distribution Belgium , EU:C:2010:43, paragraph 35 and the case-law cited).
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35. In order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring the person liable for the customs debt to prove that it was not entered in the accounts is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which the person liable could not possess, it is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document (see, by analogy, Laboratoires Boiron , paragraph 55).
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21 Mr Roenfeldt brought proceedings to annul that decision, arguing that, irrespective of the retirement age laid down by Danish legislation, the contribution periods completed in Denmark had to be taken into account in calculating the German pension. In support of that argument he cited the social insurance convention concluded between the Federal Republic of Germany and the Kingdom of Denmark.
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46. It is thus clear from case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the general interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49, and Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55). Likewise, as regards the decisions which Directive 90/435 leaves in the hands of the Member States, the Court has pointed out that these may be exercised only in compliance with the fundamental provisions of the Treaty, in particular those relating to freedom of establishment ( Keller Holding , paragraph 45).
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46. Having regard to the objective pursued by the Finnish tax legislation, the cohesion of that tax system is assured as long as the correlation between the tax advantage granted in favour of the shareholder and the tax due by way of corporation tax is maintained. Therefore, in a case such as that at issue in the main proceedings, the granting to a shareholder who is fully taxable in Finland and who holds shares in a company established in Sweden of a tax credit calculated by reference to the corporation tax owed by that company in Sweden would not threaten the cohesion of the Finnish tax system and would constitute a measure less restrictive of the free movement of capital than that laid down by the Finnish tax legislation.
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29. On the one hand, the competent authorities must know with clarity and precision the nature of the signs of which a mark consists in order to be able to fulfil their obligations in relation to the prior examination of applications for registration and the publication and maintenance of an appropriate and precise register of trade marks.
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51. That interpretation of Directive 2001/18 is substantiated by the requirement, referred to in the third indent of Article 25(4) thereof, that information concerning the environmental risk assessment may not be kept confidential. Indeed, such an assessment is possible only with full knowledge of the proposed release, because, without such information, it would not be possible validly to assess the potential effects of a deliberate release of GMOs on human health and the environment (see, to that effect, Case C‑121/07 Commission v France , paragraphs 75 and 77).
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75. As stated at recitals 4 and 5 in the preamble to Directive 2001/18, living organisms, whether released into the environment in large or small amounts for experimental purposes or as commercial products, may reproduce in the environment and cross national frontiers, thereby affecting other Member States. The effects of such releases on the environment may be irreversible. The protection of human health and the environment also requires that due attention be given to controlling risks from the deliberate release into the environment of GMOs.
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29 However, according to the terms of Annex I, point I, C, (b), to which Article 1(a)(ii) of Regulation No 1408/71 refers, only workers compulsorily insured under one of the schemes mentioned therein are entitled to German family benefits in accordance with Chapter 7 of Title III of Regulation No 1408/71.
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24 With regard, secondly, to the term "social security" used in Article 41(1) of the Cooperation Agreement, it is clear from paragraph 25 of the Kziber judgment, cited above, that it must be deemed to be analogous with the identical term used in Regulation No 1408/71.
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25 La notion de sécurité sociale figurant à l' article 41, paragraphe 1, de l' accord doit être comprise par analogie avec la notion identique figurant au règlement ( CEE ) n 1408/71 du Conseil, du 14 juin 1971, relatif à l' application des régimes de sécurité sociale aux travailleurs salariés et à leur famille qui se déplacent à l' intérieur de la Communauté ( version codifiée, JO 1980, C 138, p . 1 ). Or, l' article 4 de ce règlement, relatif au champ d' application matériel, énumère, en son paragraphe 1, parmi les branches de la sécurité sociale, les prestations de chômage dont les allocations d' attente, en cause dans l' affaire au principal, ne constituent qu' une forme particulière .
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23 It is clear from that case-law that, as an exception and in specific circumstances, the right to deduct exists even if a direct and immediate link between a particular input transaction and an output transaction or transactions giving rise to the right to deduct cannot be established.
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20 Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with respect to the same kind of charges or dues. That principle cannot, however, be interpreted as obliging a Member State to extend its most favourable rules governing repayment to all actions for repayment of charges or dues levied in breach of Community law (Edis, cited above, paragraph 36).
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36 Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with respect to the same kind of charges or dues (see, to that effect, Joined Cases 66/79, 127/79 and 128/79 Amministrazione delle Finanze dello Stato v Salumi [1980] ECR 1237, paragraph 21). That principle cannot, however, be interpreted as obliging a Member State to extend its most favourable rules governing recovery under national law to all actions for repayment of charges or dues levied in breach of Community law.
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48 As to the alleged infringement of the second sentence of Article 4(4) of the Wild Birds Directive, it should be observed that the Commission has not shown that the French Republic did not endeavour to avoid pollution or deterioration of the habitat where the titanogypsum treatment plant was constructed.
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69 However, the Court has since made clear that the Treaty rules governing freedom of movement for persons and measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by Community law and which are confined in all relevant respects within a single Member State (see, in particular, Petit, paragraph 8; Joined Cases C-225/95 to C-227/95 Kapasakalis and Others [1998] ECR I-4239, paragraph 22; and Case C-18/95 Terhoeve [1999] ECR I-345, paragraph 26).
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26 It is settled case-law that the Treaty rules governing freedom of movement for persons and measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by Community law and which are confined in all respects within a single Member State (Case C-332/90 Steen v Deutsche Bundespost [1992] ECR I-341, paragraph 9; Case C-134/95 USSL No 47 di Biella v INAIL [1997] ECR I-195, paragraph 19; Joined Cases C-64/96 and C-65/96 Land Nordrhein-Westfalen v Uecker and Jacquet v Land Nordrhein-Westfalen [1997] ECR I-3171, paragraph 16; and Joined Cases C-225/95, C-226/95 and C-227/95 Kapasakalis and Others v Greek State [1998] ECR I-4239, paragraph 22).
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69. In the province of Upper Austria, the relevant assessment is made on the basis of the answers given by practitioners practising in the catchment area of the independent outpatient dental clinic intended to be set up, even though they are potential direct competitors of that clinic. Such a method is liable to affect the objectivity and impartiality of the treatment of the application for authorisation.
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40. It follows that, in a situation such as that in the main proceedings, the principle of the protection of legitimate expectations precludes a national legislative amendment which retroactively deprives a taxable person of a right enjoyed prior to that amendment to obtain default interest on a refund of excess VAT (see, to that effect, Marks & Spencer , paragraph 46).
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46 Likewise, in a situation such as that in the main proceedings, the principle of the protection of legitimate expectations applies so as to preclude a national legislative amendment which retroactively deprives a taxable person of the right enjoyed prior to that amendment to obtain repayment of taxes collected in breach of provisions of the Sixth Directive with direct effect.
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18 An agreement between undertakings is to be regarded as liable to affect trade between Member States if in the light of certain considerations of law or fact it is capable of influencing the pattern of trade between Member States directly, indirectly, actually or potentially in a manner which may prejudice the aims of a single market between States (see Gottrup-Klim, cited above, paragraph 54).
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41. Moreover, there is no threshold or percentage below which it may be considered that trade between Member States is not affected. The relatively small amount of the aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (see Altmark Trans and Regierungspräsidium Magdeburg , paragraph 81; Joined Cases C‑34/01 to C‑38/01 Enirisorse [2003] ECR I‑14243, paragraph 28; and Heiser , cited above, paragraph 32).
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28. It must be recalled that there is no threshold or percentage below which it may be considered that trade between Member States is not affected. The relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (see Case C-280/00 Altmark Trans [2003] ECR I-7747, paragraph 81). It is all the more probable that trade could be affected in the cases in the main proceedings because the port charges are allocated to an undertaking established in a port and paid by shipping companies in respect of the loading and unloading of goods, whatever their provenance.
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67. En second lieu, s’agissant de l’appréciation relative à l’existence ou non d’un avantage dont aurait bénéficié la requérante, il convient de relever, tout d’abord, que la légalité d’une décision prise par la Commission en matière d’aides d’État, notamment au regard de l’obligation de motivation, doit être appréciée en fonction des éléments d’information dont cette dernière disposait à la date à laquelle cette décision a été arrêtée. Le Tribunal a correctement rappelé, au point 33 de l’arrêt attaqué, la jurisprudence de la Cour à cet égard (voir, notamment, arrêt du 14 septembre 2004, Espagne/Commission, C‑276/02, Rec. p. I‑8091, point 31).
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29. That consideration is particularly important in the field of education in view of the aims pursued by Article 6(e) TFEU and the second indent of Article 165(2) TFEU, namely, inter alia, encouraging mobility of students and teachers (see D’Hoop , paragraph 32; Case C-147/03 Commission v Austria [2005] ECR I-5969, paragraph 44; and Morgan and Bucher , paragraph 27).
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44. As to the Republic of Austria’s argument to the effect that the reduced transport fares should be considered a family benefit for the purposes of Regulation No 1408/71, it should be observed that, even if the conflict rules laid down in that regulation do apply to citizens of the Union pursuing their studies in a Member State other than their Member State of origin and whose parents have no link with the host Member State, categorising the reduced fares in this manner still does not justify unequal treatment on grounds of nationality in respect of those citizens.
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39 THE ANSWER TO THE FOURTH QUESTION ASKED BY THE VERWALTUNGSGERICHT FRANKFURT AM MAIN MUST THEREFORE BE THAT THE BURDEN OF PROOF IN THE RECOVERY OF AIDS UNDULY PAID IS DETERMINED BY NATIONAL LAW SUBJECT TO ANY RESTRICTIONS WHICH DERIVE FROM COMMUNITY LAW IN THIS REGARD .
THE OBLIGATION TO MONITOR THE MANUFACTURE OF SKIMMED-MILK POWDER AT THE MANUFACTURER ' S PREMISES
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67. En raison du changement majeur de circonstances mentionné au point 65 du présent arrêt, l’appréciation portée par la Commission sur ces régimes d’aides ne peut donc être considérée comme préjugeant de celle qui aurait été portée sur un régime d’aides comprenant des mesures similaires, mais qui aurait trouvé à s’appliquer dans un contexte économique radicalement différent de celui que la Commission a pris en compte dans le cadre de son appréciation. Il s’ensuit que la compatibilité avec le marché intérieur du nouveau régime d’aides ayant fait l’objet d’une demande adressée au Conseil par la Hongrie au titre de l’article 108, paragraphe 2, troisième alinéa, TFUE doit être évaluée au terme d’une appréciation individuelle distincte de celle des régimes mentionnés au point 16 du présent arrêt, effectuée en prenant en considération les circonstances économiques pertinentes au moment où ces aides ont été accordées (voir, en ce sens, arrêts du 3 octobre 1991, Italie/Commission, C‑261/89, Rec. p. I‑4437, point 21, ainsi que du 21 juillet 2011, Freistaat Sachsen et Land Sachsen-Anhalt/Commission, C‑459/10 P, Rec. p. I‑109, point 48).
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21 Moreover, the procedure for assessing aid under Article 93(2) makes it possible to appraise any new fact capable of altering the Commission' s assessment, regard being had to the purpose of any new aid and all relevant economic circumstances at the time when the aid is granted.
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27 As regards, first, the requirement of preserving financial equilibrium of the social-security system, it must be borne in mind that the Court has already held that the grant of benefits under non-contributory schemes to persons in respect of whom certain risks have materialised, regardless of the entitlement of such persons to an old-age pension by virtue of contribution periods completed by them, has no direct influence on the financial equilibrium of contributory pension schemes (see Thomas and Others, paragraph 14).
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32. It must be observed, next, that in CSC Financial Services , the Court, with reference to paragraphs 64 and 66 of SDC , stressed that the nature of the activities of CSC Financial Services Ltd was the essential element in determining whether the latter provided a service which was exempt for the purposes of points (3) to (5) of Article 13B(d) of the Sixth Directive ( CSC Financial Services , paragraphs 23 to 28). Second, the Court held at the beginning of paragraph 39 of that judgment that it was not necessary to consider the precise meaning of the term ‘negotiation’.
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28 As the Court emphasised at paragraph 73 of its judgment in SDC, trade in securities involves acts which alter the legal and financial situation as between the parties and are comparable to those involved in the case of a transfer or a payment. The supply of a mere physical, technical or administrative service, which does not alter the legal or financial situation would not, therefore, appear to be covered by the exemption laid down in Article 13B(d)(5) of the Sixth Directive.
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14 THOSE RULES , WHICH SEEK ONLY TO CONTROL THE QUANTITIES OF TEXTILE PRODUCTS IMPORTED FROM CERTAIN NON-MEMBER COUNTRIES , PURSUE AN ENTIRELY DIFFERENT OBJECTIVE FROM THAT OF REGULATION NO 1224/80 , AS AMENDED , WHOSE PURPOSE IS TO ESTABLISH A FAIR , UNIFORM AND NEUTRAL SYSTEM OF CUSTOMS VALUATION OF GOODS FOR THE APPLICATION OF THE COMMON CUSTOMS TARIFF . THE LATTER REGULATION MUST THEREFORE BE INTERPRETED WITHOUT REFERENCE TO THE RULES ON THE SYSTEM OF EXPORT AND IMPORT LICENCES .
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63. Furthermore, it is settled case-law that the terms of a provision of the Sixth Directive which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community, in order to prevent differences from one Member State to another in the way the VAT system is applied (see Case C‑497/01 Zita Modes [2003] ECR I‑0000, paragraph 34).
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34. However, according to settled case-law, the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question (see, in particular, Case 327/82 Ekro [1984] ECR 107, paragraph 11, Case C-287/98 Linster [2000] ECR I-6917, paragraph 43, Case C-357/98 Yiadom [2000] ECR I-9265, paragraph 26, and Case C-373/00 Adolf Truley [2003] ECR I-1931, paragraph 35).
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49. In that regard, it should be borne in mind that Article 2(d) of the Directive gives a particularly wide definition to the concept of commercial practices: ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’.
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47. Furthermore, the legislature has laid down with particular strictness that shapes necessary to obtain a technical result are unsuitable for registration as trade marks, since it has excluded the grounds for refusal listed in Article 7(1)(e) of Regulation No 40/94 from the scope of the exception under Article 7(3). If follows, therefore, from Article 7(3) of the regulation that, even if a shape of goods which is necessary to obtain a technical result has become distinctive in consequence of the use which has been made of it, it is prohibited from being registered as a trade mark (see by analogy, in relation to Article 3(3) of Directive 89/104, which is essentially identical to Article 7(3) of Regulation No 40/94, Philips , paragraph 57, and Case C-371/06 Benetton Group [2007] ECR I-7709, paragraphs 25 to 27).
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26. Lastly, it must be borne in mind that in Philips the Court has already held that:
– if a shape is refused registration pursuant to Article 3(1)(e) of the Directive, it can in no circumstances be registered by virtue of Article 3(3) (paragraph 57);
– a sign which is refused registration under Article 3(1)(e) can never acquire a distinctive character for the purposes of Articl e 3(3) by the use made of it (paragraph 75);
– Article 3(1)(e) concerns certain signs which are not such as to constitute trade marks and that it is a preliminary obstacle liable to prevent a sign consisting exclusively of the shape of a product from being registrable with the result that if any one of the criteria listed in Article 3(1)(e) is satisfied, a sign consisting exclusively of the shape of the product cannot be registered as a trade mark (paragraph 76).
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39
It follows from such an interpretation that a potentially less favourable treatment of dividends distributed to non-resident pension funds during one tax year cannot be compensated by their potentially favourable treatment during other tax years.
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21
The Court has held that, outside the limits laid down therein, Article 273 of the VAT Directive does not specify either the conditions or the obligations which the Member States may impose and therefore gives the Member States a margin of discretion with regard to the means of ensuring collection of all the VAT due on their territory and for combating fraud (see, to that effect, judgment of 5 October 2016, Maya Marinova, C‑576/15, EU:C:2016:740, paragraph 43 and the case-law cited).
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43
In addition, the Court has held that, outside the limits laid down therein, Article 273 of the VAT directive does not specify either the conditions or the obligations which the Member States may impose and therefore gives the Member States a margin of discretion with regard to the means of achieving the objectives recalled in paragraph 41 above (see, to that effect, judgments of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraph 23, and of 26 March 2015, Macikowski, C‑499/13, EU:C:2015:201, paragraph 36).
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39 The advertiser uses the BMW mark to identify the source of the goods in respect of which the services are supplied, and thus to distinguish those goods from any others in respect of which the same services might have been provided. If the use of the trade mark in advertisements for the service which consists of selling second-hand BMW cars is undoubtedly intended to distinguish the subject of the services provided, it is not necessary to treat any differently the advertisements for the service consisting of repair and maintenance of BMW cars. In that case, too, the mark is used to identify the source of the goods which are the subject of the service.
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37
It follows from the case-law of the Court that a refusal by the authorities of a Member State to recognise the name of a national of that State who exercised his right to move and reside freely in the territory of another Member State, as determined in that second Member State, is likely to hinder the exercise of the right, enshrined in Article 21 TFEU, to move and reside freely in the territories of the Member States. Confusion and inconvenience are liable to arise from the divergence between the two names used for the same person (see, to that effect, judgment of 22 December 2010 in Sayn-Wittgenstein, C‑208/09, EU:C:2010:806, paragraphs 39, 41, 42, 66 and 71).
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71. Consequently, the refusal, by the authorities of a Member State, to recognise all the elements of the surname of a national of that State as determined in another Member State, in which that national resides, and as entered for 15 years in the register of civil status of the first Member State, is a restriction on the freedoms conferred by Article 21 TFEU on every citizen of the Union.
Existence of a justification for the restriction on the freedom of movement and residence enjoyed by citizens of the Union
Observations submitted to the Court
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33 THE DECISION CITED BY THE COMMISSION RELATES SOLELY TO THE EXCEPTIONAL CASE WHERE AN APPLICATION FOR COMPENSATION IS BROUGHT FOR THE PAYMENT OF AN AMOUNT PRECISELY EQUAL TO THE DUTY WHICH THE APPLICANT WAS REQUIRED TO PAY UNDER AN INDIVIDUAL DECISION , SO THAT THE APPLICATION SEEKS IN FACT THE WITHDRAWAL OF THAT INDIVIDUAL DECISION . AT ALL EVENTS , SUCH CONSIDERATIONS ARE FOREIGN TO THIS CASE .
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31. The Court has held that national legislation not intended to apply only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities but which applies irrespective of the size of the holding which the shareholder has in a company may fall within the scope of both Article 49 TFEU and Article 63 TFEU (Case C‑543/08 Commission v Portugal [2010] ECR I‑11241, paragraph 43 and the case-law cited).
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43. National legislation not intended to apply only to those shareholdings which enable the holder to have a definite influence on a company’s decisions and to determine its activities but which applies irrespective of the size of the holding which the shareholder has in a company may fall within the ambit of both Article 43 EC and Article 56 EC (Case C‑326/07 Commission v Italy , paragraph 36).
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18 Consequently, Note 5(B) to the Combined Nomenclature does not preclude network cards from being classified under heading No 8471.
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15. Although Article 4 of the Sixth Directive gives a very wide scope to VAT, only activities of an economic nature are, however, covered by that provision (see, to that effect, Case C-306/94 Régie dauphinoise [1996] ECR I-3695, paragraph 15, and Case C-465/03 Kretztechnik [2005] ECR I-4357, paragraph 18). In particular, the application of Article 4(5) of the Sixth Directive implies a prior finding that the activity considered is of an economic nature (Case C-284/04 T-Mobile Austria and Others [2007] ECR I-0000, paragraph 48).
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48. Even if such a regulatory activity could be classified as an economic activity, the fact still remains that the application of Article 4(5) of the Sixth Directive implies a prior finding that the activity considered is of an economic nature. It is apparent from the answer given in paragraph 46 of this judgment that that is not the case.
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23. Species changes involving loss of ecosystem biodiversity, nuisances due to the proliferation of opportunistic macroalgae and severe outbreaks of toxic or harmful phytoplankton therefore constitute an undesirable disturbance of the balance of organisms present in the water.
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18. In that regard, although it is clear from Article 3(1) of the Directive that each of the grounds for refusal listed in that provision is independent of the others and calls for separate examination (see inter alia Joined Cases C-53/01 to C-55/01 Linde and Others [2003] ECR I-3161, paragraph 67), there is a clear overlap between the scope of the grounds for refusal set out in subparagraphs (b), (c) and (d) of Article 3(1) (see, to that effect, Case C-517/99 Merz & Krell [2001] ECR I-6959, paragraphs 35 and 36).
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36 It follows that, in order for Article 3(1)(d) of the Directive to be effective, the scope of the provision in respect of which the Court's interpretation is sought should not be limited solely to trade marks which describe the properties or characteristics of the goods or services covered by them.
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55
Furthermore, according to settled case-law, in general, limitation periods fulfil the function of ensuring legal certainty (judgments of 28 October 2010 in SGS Belgium and Others, C‑367/09, EU:C:2010:648, paragraph 68, and 8 September 2011 in Q-Beef and Bosschaert, C‑89/10 and C‑96/10, EU:C:2011:555, paragraph 42).
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50. Such an assessment is subject to review by the Court of Justice only where the facts and evidence put before the Court of First Instance have been distorted, but such distortion has not been shown or alleged by the Commission in the present case (see, to that effect, inter alia Case C‑53/92 P Hilti v Commission [1994] ECR I‑667, paragraph 42; Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 49; and Case C‑206/04 P Mülhens v OHIM [2006] ECR I‑2717, paragraph 28).
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42 It should be pointed out that the appraisal by the Court of First Instance of the evidence put before it does not constitute (save where the clear sense of that evidence has been distorted) a point of law which is subject, as such, to review by the Court of Justice.
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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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40. As regards the powers available to the national supervisory authorities in respect of transfers of personal data to third countries, it should be noted that Article 28(1) of Directive 95/46 requires Member States to set up one or more public authorities responsible for monitoring, with complete independence, compliance with EU rules on the protection of individuals with regard to the processing of such data. In addition, that requirement derives from the primary law of the European Union, in particular Article 8(3) of the Charter and Article 16(2) TFEU (see, to this effect, judgments in Commission v Austria , C‑614/10, EU:C:2012:631, paragraph 36, and Commission v Hungary , C‑288/12, EU:C:2014:237, paragraph 47).
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36. The second subparagraph of Article 28(1) of Directive 95/46 requires Member States to set up one or more supervisory authorities for the protection of personal data which have complete independence in exercising the functions entrusted to them. In addition, the requirement that compliance with European Union rules on the protection of individuals with regard to the processing of personal data is subject to control by an independent authority derives from the primary law of the European Union, inter alia Article 8(3) of the Charter of Fundamental Rights of the European Union and Article 16(2) TFEU.
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21 Since in certain labour-intensive sectors a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, it must be recognized that such an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task. In those circumstances, as stated in paragraph 21 of Rygaard, cited above, the new employer takes over a body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis.
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86. It is settled case-law that the determination of the existence of harm to the Community industry requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. That is, particularly, the case as regards the determination of the factors injuring the Community industry in an anti‑subsidy proceeding (see AGST Draht- und Biegetechnik , paragraph 34).
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34. Furthermore, it is settled case-law that the determination of the existence of harm to the Community industry requires an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant procedural rules have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error in the appraisal of those fac ts or a misuse of powers (see Ikea Wholesale , paragraph 41, and the case-law cited). That is, particularly, the case as regards the determination of the factors injuring the Community industry in an anti-subsidy proceeding.
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11. Par ailleurs, il y a lieu de rappeler qu’un État membre ne saurait exciper, notamment, de pratiques propres à son ordre juridique interne pour justifier l’inobservation des obligations et des délais prescrits par une directive (voir en ce sens, notamment, arrêts du 9 septembre 2004, Commission/Espagne, C‑195/02, Rec. p. I‑7857, point 82, et du 27 septembre 2007, Commission/France, C‑9/07, non publié au Recueil, point 9).
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52. In that regard, it must be recalled that the meaning of the specifications must be determined by adopting the perspective of potential tenderers since the aim of the procedures for the award of public works contracts laid down in Directive 2004/18 is precisely to guarantee to potential tenderers established in the European Union access to public contracts of interest to them (see Case C‑220/05 Auroux and Others [2007] ECR I‑385, paragraph 53). Thus, in the present case, the specifications could be understood by the potential tenderers only as referring to the possession of the labels mentioned in the context of the requirement or preference in question.
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53. Since the aim of the procedures for the award of public works contracts laid down in the Directive is precisely to guarantee to potential tenderers established in the European Community access to public contracts of interest to them, it follows that whether the value of a contract reaches the threshold laid down in Article 6 of the Directive should be calculated from the tenderers’ perspective.
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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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131. With regard to pensions, it must be noted that, according to the settled case-law of the Court in relation to Article 119 of the Treaty, or, with effect from 1 May 1999, in relation to Article 141 EC, which concern the principle of equal treatment of men and women in relation to pay, the term ‘pay’ within the meaning of the second subparagraph of Article 141(2) EC covers pensions which depend on the employment relationship between worker and employer, excluding those deriving from a statutory scheme, to the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship than by considerations of social policy (see, in particular, Case 80/70 Defrenne [1971] ECR 445, paragraphs 7 and 8; Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, paragraphs 16 to 22; Case C‑262/88 Barber [1990] ECR I‑1889, paragraphs 22 to 28; and Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker [2003] ECR I‑12575, paragraphs 56 to 64).
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24 In order to answer the second question, therefore, it is necessary to ascertain whether those considerations also apply to contracted-out private occupational schemes such as that referred to in this case .
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63
It is also to be observed that, by using the words ‘measures for the approximation’ in Article 114 TFEU, the authors of the Treaty intended to confer on the EU legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features (judgments in Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 42, and United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 102). It was thus open to the EU legislature, in the exercise of that discretion, to proceed towards harmonisation only in stages and to require only the gradual abolition of unilateral measures adopted by the Member States (judgment in Rewe-Zentral, 37/83, EU:C:1984:89, paragraph 20).
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84. Since the objective of Article 379(1) of the Implementing Regulation is to ensure diligent uniform application of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Communities’ own resources, the notification of the offence or the irregularity must, in any event, be made as quickly as possible, that is to say, as soon as the customs authorities are aware of that offence or irregularity, hence well before expiry of the maximum period of 11 months referred to in that provision (see, by analogy, Case C‑377/03 Commission v Belgium [2006] ECR I‑9733, paragraph 69, and Case C‑312/04 Commission v Netherlands [2006] ECR I‑9923, paragraph 54).
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69. It must be borne in mind, however, that since the objective of Article 455(1) of the implementing regulation is to ensure diligent uniform application of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Communities’ own resources (see, by analogy, inter alia Case C-460/01 Commission v Netherlands [2005] ECR I-2613, paragraphs 60, 63, 69 and 70), the notification of the offence or the irregularity must, in any event, be lodged as quickly as possible, namely as soon as the customs authorities are aware of that offence or irregularity, such as in this case where they were aware in at least 31 cases, well before expiry of the maximum periods of one year and, in the case of fraud, two years, as referred to in Article 11(1) of the TIR Convention.
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46. In contrast, the holding, even a minority holding, of a private undertaking in the capital of a company in which the contracting authority in question also has a holding too means that, on any view, it is impossible for that contracting authority to exercise over that company control similar to that which it exercises over its own departments (see, to that effect, Stadt Halle and RPL Lochau , paragraph 49, and Coditel Brabant , paragraph 30).
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35. The deduction system is meant to relieve the taxpayer entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures complete neutrality of taxation of all economic activities provided that they are themselves subject in principle to VAT (Case C‑408/98 Abbey National [2001] ECR I-1361, paragraph 24; Case C‑25/03 HE [2005] ECR I‑3123, paragraph 70; and Joined Cases C‑439/04 and C-440/04 Kittel and Recolta Recycling [2006] ECR I‑6161, paragraph 48).
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70. HE’s claim for deduction of all the VAT attributable to the office must, in those circumstances, be regarded as in conformity with the deduction system, which is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT thus ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, inter alia, Zita Modes , cited above, paragraph 38).
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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. In that regard, the Court – noting, in particular, that inheritances consisting in the transfer to one or more persons of assets left by a deceased person fall under heading XI of Annex I to Directive 88/361, entitled ‘Personal capital movements’ – has held that an inheritance, whether of money, immovable or movable property, is a movement of capital for the purposes of Article 56 EC, except in cases where its constituent elements are confined within a single Member State (see, in particular, Case C‑364/01 Barbier [2003] ECR I‑15013, paragraph 58; Case C‑43/07 Arens-Sikken [2008] ECR I‑0000, paragraph 30; Case C‑11/07 Eckelkamp [2008] ECR I‑0000, paragraph 39; and Case C‑318/07 Persche [2009] ECR I‑0000, paragraphs 30 and 31).
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31. By its second and third questions, with which it is appropriate to deal together, the national court asks, in essence, whether Article 56 EC precludes legislation of a Member State which allows the benefit of a deduction for tax purposes only for gifts made in favour of charitable bodies established in that State, having regard to the fact that the tax authorities of that Member State must be able to verify the taxpayer’s declarations and cannot be required to act in breach of the principle of proportionality. That court is uncertain, in that context, whether Directive 77/799 requires those tax authorities to have recourse to the assistance of the competent authorities of the recipient body’s Member State of establishment to obtain the necessary information or whether, on the other hand, the said tax authorities may require the taxpayer himself to provide all the necessary evidence.
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21 As the Commission rightly points out, heading 9009 includes, in addition to photocopiers incorporating an optical system and of the direct reproduction type, those which incorporate an intermediate for reproduction by the indirect process. In this case, reproduction by the indirect process is effected by converting the image into digital data.
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30. La Cour a, en particulier, considéré que l’objet du litige peut s’étendre à des faits postérieurs à l’avis motivé pour autant qu’ils sont de même nature et constitutifs d’un même comportement que les faits visés par ledit avis (arrêt du 9 novembre 2006, Commission/Royaume-Uni, C‑236/05, Rec. p. I‑10819, point 12 et jurisprudence citée).
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12. In particular, the Court has held that the subject-matter of the dispute may be extended to events which took place after the reasoned opinion was delivered in so far as they are of the same kind and constitute the same conduct as the events to which the opinion referred (see Case 42/82 Commission v France [1983] ECR 1013, paragraph 20; Case C-113/86 Commission v Italy [1988] ECR 607, paragraph 11; and Case C-221/04 Commission v Spain [2006] ECR I-0000, paragraph 28).
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79 Other articles of the Treaty may not, however, be used as a legal basis in order to circumvent the express exclusion of harmonisation laid down in Article 129(4) of the Treaty.
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40. Should the taxable person choose to treat capital goods used for both business and private purposes as business goods, the input VAT due on the acquisition of those goods is, in principle, immediately deductible in full ( Charles and Charles-Tijmens , paragraph 24, and Wollny , paragraph 22).
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24. Should the taxable person choose to treat capital goods used for both business and private purposes as business goods, the input VAT due on the acquisition of those goods is, in principle, immediately deductible in full (see, in particular, Case C‑97/90 Lennartz [1991] ECR I-3795, paragraph 26, Bakcsi , paragraph 25, and Seeling, paragraph 41).
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42. In that regard, it should be pointed out that, as is apparent from the judgment in Maruko (paragraphs 67 to 73), first, it is required not that the situations be identical, but only that they be comparable and, second, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned. In that judgment, concerning the refusal to grant a survivor’s pension to the life partner of a deceased member of an occupational pension scheme, the Court did not carry out an overall comparison between marriage and registered life partnership under German law, but, on the basis of the analysis of German law carried out by the court which made the reference for a preliminary ruling, according to which there was a gradual harmonisation in German law of the regime put in place for registered life partnerships with that applicable to marriage, it made it clear that registered life partnership is to be treated as equivalent to marriage as regards the widow’s or widower’s pension.
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133. However, such legislation cannot be regarded as conflicting with that clause if the reduction it entails is in no way connected to the implementation of the Framework Agreement. That would be the case if the reduction were justified not by the need to put the Framework Agreement into effect but by the need to encourage another objective, one that is distinct from that implementation (see, to that effect, Mangold , paragraphs 52 and 53).
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53. Now, it is clear from both the order for reference and the observations submitted by the German Government at the hearing that, as the Advocate General has noted in paragraphs 75 to 77 of his Opinion, the successive reductions of the age above which the conclusion of a fixed-term contract is permissible without restrictions are justified, not by the need to put the Framework Agreement into effect but by the need to encourage the employment of older persons in Germany.
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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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42. According to the case‑law the Member State to which a decision requiring recovery of illegal aid is addressed is obliged under Article 249 EC to take all measures necessary to ensure implementation of that decision (see Case C‑209/00 Commission v Germany [2002] ECR I‑11695, paragraph 31, and Case C‑404/00 Commission v Spain [2003] ECR I-6695, paragraph 21). This must result in the actual recovery of the sums owed (see, to that effect, Case C‑415/03 Commission v Greece [2005] ECR I‑3875, paragraph 44, and Commission v Italy , cited above, paragraphs 36 and 37).
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21. The Member State to which a decision requiring recovery of illegal aid is addressed is obliged under Article 249 EC to take all measures necessary to ensure implementation of that decision (see Case C-209/00 Commission v Germany , cited above, paragraph 31).
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18 ON THE OTHER HAND, NO SUCH UNCERTAINTY EXISTS FOR MOST CONTRACTS IF REGARD IS HAD SOLELY TO THE CONTRACTUAL OBLIGATION WHOSE PERFORMANCE IS SOUGHT IN THE JUDICIAL PROCEEDINGS . THE PLACE IN WHICH THAT OBLIGATION IS TO BE PERFORMED USUALLY CONSTITUTES THE CLOSEST CONNECTING FACTOR BETWEEN THE DISPUTE AND THE COURT HAVING JURISDICTION OVER IT, AND IT IS THIS CONNECTING FACTOR WHICH EXPLAINS WHY, IN CONTRACTUAL MATTERS, IT IS THE COURT OF THE PLACE OF PERFORMANCE OF THE OBLIGATION WHICH HAS JURISDICTION .
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58. However, as regards transactions involving imports into the EU that are for all essential purposes comparable to those at issue in the main proceedings, the Court held in its judgment in SICES and Others (C‑155/13, EU:C:2014:145, paragraph 40) that, while Article 6(4) of Commission Regulation (EC) No 341/2007 of 29 March 2007 opening and providing for the administration of tariff quotas and introducing a system of import licences and certificates of origin for garlic and certain other agricultural products imported from third countries (OJ 2007 L 90, p. 12), which prohibits the transfer of rights arising under import licences, does not, in principle, preclude such transactions, they none the less constitute an abuse of rights when they are artificially created with the essential aim of benefiting from the preferential rate of duty.
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40. Having regard to the foregoing, the answer to the question referred is that Article 6(4) of Regulation No 341/2007 must be interpreted as not precluding, in principle, transactions by which an importer, holding reduced rate import licences, purchases goods outside the European Union from an operator, itself a traditional importer within the meaning of Article 4(2) of that regulation, but having exhausted its own reduced rate import licences, then resells them to that operator after having imported them into the European Union. However, such transactions constitute an abuse of rights where they are artificially created with the essential aim of benefiting from the preferential rate of duty. The checking for abuse requires the referring court to take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue.
Costs
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20 THE APPLICANT ARGUES THAT THE CONTESTED DECISION IS CONTRARY TO THE TREATY AND TO THE RULES RELATING TO ITS APPLICATION BECAUSE THE COMMISSION, IN COMMENCING ON 31 MAY 1967 PROCEEDINGS CONCERNING THE PRICE INCREASE OF JANUARY 1964, EXCEEDED ANY REASONABLE LIMITATION PERIOD .
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35
The exercise of that discretion is not, however, excluded from review by the Court. In particular, where a party claims that the institution competent in the matter has committed a manifest error of assessment, the EU judicature must verify whether that institution has examined, carefully and impartially, all the relevant facts of the individual case on which that assessment was based (see, inter alia, judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14; of 18 July 2007, Industrias Químicas del Vallés v Commission, C‑326/05 P, EU:C:2007:443, paragraph 77; of 6 November 2008, Netherlands v Commission, C‑405/07 P, EU:C:2008:613, paragraph 56; and of 22 December 2010, Gowan Comércio Internacional e Serviços, C‑77/09, EU:C:2010:803, paragraph 57). That duty to act diligently is inherent in the principle of sound administration and applies generally to the actions of the EU administration (judgment of 4 April 2017, European Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 34; see also, to that effect, judgment of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraph 95).
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56. Moreover, it must be recalled that, where a Community institution has a wide discretion, the review of observance of guarantees conferred by the Community legal order in administrative procedures is of fundamental importance. The Court of Justice has had occasion to specify that those guarantees include, in particular for the competent institution, the obligations to examine carefully and impartially all the relevant elements of the individual case and to give an adequate statement of the reasons for its decision (see Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Joined Cases C‑258/90 and C‑259/90 Pesquerias De Bermeo and Naviera Laida v Commission [1992] ECR I‑2901, paragraph 26; and Spain v Lenzing , paragraph 58).
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20 It follows that the requirement to provide remuneration for the periods of training in specialized medicine, laid down in Article 2(1)(c) of the "coordination" directive, applies only to medical specialties which are common to all the Member States or to two or more Member States and which are mentioned in Article 5 or Article 7 of the "recognition" directive.
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23. Article 49 EC requires the abolition of all restrictions on the freedom to provide services, even if those restrictions apply without distinction to national providers of services and to those from other Member States, when they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where it lawfully provides similar services. The freedom to provide services is for the benefit of both providers and recipients of services (Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑0000, paragraph 51 and the case-law cited).
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51. Article 49 EC requires the abolition of all restrictions on the freedom to provide services, even if those restrictions apply without distinction to national providers of services and to those from other Member States, when they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where it lawfully provides similar services (see, to that effect, Case C‑76/90 Säger [1991] ECR I-4221, paragraph 12, and Case C-58/98 Corsten [2000] ECR I-7919, paragraph 33). Moreover, the freedom to provide services is for the benefit of both providers and recipients of services (see, to that effect, Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16).
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19 So, the Staff Regulations are intended only to regulate the legal relations between the European institutions and their officials, by establishing a series of reciprocal rights and obligations and by affording certain members of an official's family rights which they may assert in relation to the European Communities.
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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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67. The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of 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 to this effect, inter alia, Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12, and Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 31).
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23. Further, it is clear from the second recital in the preamble to Directive 97/55 that the purpose of comparative advertising is also to stimulate competition between suppliers of goods and services to the consumer’s advantage.
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102 Nor is that conclusion negated by the case-law of the Court cited by URBSFA and UEFA, to the effect that Article 30 of the Treaty does not apply to measures which restrict or prohibit certain selling arrangements so long as they apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States (see Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 16).
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16 By contrast, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
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19 THE RULES ON GRADE AND STEP CLASSIFICATION SET OUT IN ARTICLES 31 AND 32 OF THE STAFF REGULATIONS LAY DOWN THE PRINCIPLE THAT CANDIDATES APPOINTED OFFICIALS IN CATEGORY A OR IN THE LANGUAGE SERVICE ARE RECRUITED IN THE STARTING GRADE OF THEIR CATEGORY OR SERVICE AND CLASSIFIED IN THE FIRST STEP OF THEIR GRADE . HOWEVER , THOSE TWO ARTICLES ALLOW THE APPOINTING AUTHORITY TO MAKE EXCEPTIONS TO THOSE RULES , TAKING ACCOUNT OF THE EXPERIENCE OF THE PERSONS CONCERNED , PROVIDED THAT IT IS SUFFICIENTLY ' ' SPECIFIC ' ' IN RELATION TO THE VACANT POST .
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27 The procedure for references for a preliminary ruling under Article 234 EC entails close cooperation between the national courts and the Court of Justice based on the assignment to each of different functions (Case C-236/98 JämO [2000] ECR I-2189, paragraph 30) and constitutes an instrument by means of which the Court provides the national courts with such interpretation of Community law as is necessary for them to give judgment in the cases upon which they are called to adjudicate (Case C-403/98 Monte Arcosu [2001] ECR I-103, paragraph 21).
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30 In that respect, it should be borne in mind that Article 177 of the Treaty lays down the framework for close cooperation between the national courts and the Court of Justice based on the assignment to each of different functions. It is clear from the second paragraph of Article 177 that it is for the national court to decide at what stage in the proceedings it is appropriate for that court to refer a question to the Court of Justice for a preliminary ruling (see Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association and Others [1981] ECR 735, paragraph 5).
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35 Such a provision also has a restrictive effect as regards companies established in other Member States: it constitutes an obstacle to the raising of capital in the Netherlands since the dividends which such companies pay to Netherlands residents receive less favourable tax treatment than dividends distributed by a company established in the Netherlands, so that their shares are less attractive to investors residing in the Netherlands than shares in companies which have their seat in that Member State.
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32. It should be recalled, first of all, that the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States (Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraphs 30 and 31, and Case C-209/03 Bidar [2005] ECR I-2119, paragraph 31). Under Article 18(1) EC, every citizen of the Union has the right to move and reside freely within the territory of the Member States. A national of a Member State who does not enjoy a right of residence in the host Member State as a result of other provisions of the Treaty or of provisions adopted to give it effect may, simply by virtue of being a citizen of the Union, enjoy a right of residence there in direct application of that article (see, to that effect, Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 84, and Case C-456/02 Trojani [2004] ECR I-7573, paragraph 31).
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31. It must be recalled that the right to reside in the territory of the Member States is conferred directly on every citizen of the Union by Article 18(1) EC (see Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 84). Mr Trojani therefore has the right to rely on that provision of the Treaty simply as a citizen of the Union.
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623 IN ADDITION, IN SO FAR AS AN INFRINGEMENT UPHELD BY THE COURT HAS BEEN COMMITTED BY SEVERAL APPLICANTS, IT IS APPROPRIATE TO CONSIDER HOW SERIOUSLY EACH OF THEM PARTICIPATED IN IT .
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45. Moreover, the Court’s case-law makes clear that, in order to be regarded as exempt transactions for the purposes of Article 13B(d) of the Sixth Directive, the services provided must, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of a service described in that provision (see SDC , paragraph 66; Case C-235/00 CSC Financial Services [2001] ECR I-10237, paragraph 25; Abbey National , paragraph 70; and Ludwig , paragraph 27).
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70. However, to be regarded as exempt transactions for the purposes of Article 13B(d)(6) of the Sixth Directive, services performed by a third-party manager in respect of the administrative management of the funds must, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of a service described in that same point 6 (see, to that effect, as regards Article 13B(d)(5) of the Sixth Directive, SDC, paragraph 66, and CSC Financial Services , paragraph 25).
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18 It is apparent from the order for reference that the introduction of strict criminal liability corresponds to the system generally applicable in Denmark for the protection of the working environment .
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89. Further, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court and Article 112(1)(c) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (Case C‑248/99 P France v Monsanto and Commission [2002] ECR I‑1, paragraph 68 and the case-law cited). A ground of appeal put forward in support of an appeal wherein the appellant does no more than merely refer back to its arguments put forward in another context does not meet that requirement, and must therefore be rejected as insufficiently substantiated (order in Case C‑51/95 P Unifruit Hellas v Commission [1997] ECR I‑727, paragraph 33).
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68 In that regard, it follows from Article 225 EC, the first paragraph of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergadem and Goupil v Commission [2000] ECR I-5291, paragraph 34).
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40. First, a prescribing doctor is required, from the point of view of professional conduct, not to prescribe a given medicinal product if it is not fitting for the therapeutic treatment of his patient, despite the existence of public financial inducements for its prescription.
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75 Secondly, it should be recalled that the case which led to the judgment in Kuwait Petroleum, cited above, concerned vouchers offered by a petrol company to consumers with the purchase of a certain quantity of fuel which could be exchanged free of charge for gifts chosen from a special catalogue. The Court held that the offer of such gifts could not be regarded as constituting a rebate or discount under Article 11(A)(3)(b) of the Sixth Directive but was to be deemed to be a supply for valuable consideration and thus a taxable transaction under Article 5(6) of the Sixth Directive (Kuwait Petroleum, paragraphs 16, 17 and 31). Under that provision, the application by a taxable person of goods forming part of his business assets for his private use or that of his staff, or the disposal thereof free of charge, where the value added tax on the goods in question was wholly or partly deductible, are to be treated as supplies made for consideration.
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17 The answer to the first question must therefore be that, on a proper construction of Article 11A(3)(b) of the Sixth Directive, the terms `rebates' and `price discounts' cannot be applied to reductions covering the whole cost of supplying redemption goods.
Questions 2, 3 and 4
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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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23 Directive 77/187 is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person who is responsible for carrying on the business and who incurs the obligations of an employer towards employees of the undertaking. Thus, there is no need, in order for the directive to be applicable, for there to be any direct contractual relationship between the transferor and the transferee: the transfer may also take place in two stages, through the intermediary of a third party such as the owner or the person putting up the capital (see, in particular, Joined Cases C-171/94 and C-172/94 Merckx and Neuhuys [1996] ECR I-1253, paragraphs 28 to 30, and Süzen, cited above, paragraph 12).
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29. The Court has therefore held that the Directive applies to the termination of a lease of a restaurant followed by the conclusion of a new management contract with another operator (Case 324/86 Tellerup v Daddy ' s Dance Hall [1988] ECR 739), the termination of a lease followed by a sale by the owner (Case 101/87 Bork International v Foreningen af Arbejdsledere i Danmark [1988] ECR 3057), and also a situation in which a public authority ceases to grant subsidies to a legal person thereby bringing about the full and definitive termination of its activities in order to transfer them to another legal person with a similar aim ( Redmond Stichting , cited above).
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58
That requirement on the part of the Member States corresponds to the right enshrined in Article 47 of the Charter, entitled ‘Right to an effective remedy and to a fair trial’, which provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal (see, to that effect, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 44, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 30).
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60. Selon une jurisprudence constante, lorsque le Tribunal a constaté ou apprécié les faits, la Cour est compétente pour exercer, en vertu de l’article 256 TFUE, un contrôle sur la qualification juridique de ces faits et les conséquences de droit qui en ont été tirées par le Tribunal (arrêt Chetcuti/Commission, C-16/07 P, EU:C:2008:549, point 53 et jurisprudence citée).
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53. À cet égard, il y a lieu de rappeler que, selon une jurisprudence constante, lorsque le Tribunal a constaté ou apprécié les faits, la Cour est compétente pour exercer, en vertu de l’article 225 CE, un contrôle sur la qualification juridique de ces faits et les conséquences de droit qui en ont été tirées par le Tribunal (voir arrêts du 6 avril 2006, General Motors/Commission, C‑551/03 P, Rec. p. I‑3173, point 51, et du 22 mai 2008, Degussa/Commission et Conseil, C‑266/06 P, point 72).
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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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48. However, it follows from the arguments advanced before the Court by the parties in the main proceedings that the copyright holders did not consent to the distribution of the canvas transfers, at least not expressly. Accordingly, applying the rule of exhaustion of the distribution right would deprive those rightholders of the possibility of prohibiting those objects from being distributed or, in the event of distribution, of requiring appropriate reward for the commercial exploitation of their works. In that regard, the Court has already held that, in order to be appropriate, such remuneration must be reasonable in relation to the economic value of the exploitation of the protected work (see, by analogy, judgment in Football Association Premier League and Others , EU:C:2011:631, paragraphs 107 to 109). As regards canvas transfers, the parties in the main proceedings acknowledge that their economic value significantly exceeds that of posters.
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108. However, the specific subject-matter of the intellectual property does not guarantee the right holders concerned the opportunity to demand the highest possible remuneration. Consistently with its specific subject-matter, they are ensured – as recital 10 in the preamble to the Copyright Directive and recital 5 in the preamble to the Related Rights Directive envisage – only appropriate remuneration for each use of the protected subject-matter.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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22 According to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Those requirements are of particular importance in certain areas, such as that of competition, where the factual and legal situations are often complex (see, in particular, Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraphs 6 and 7, Case C-67/96 Albany International v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-0000, paragraph 39, and Joined Cases C-115/97 to C-117/97 Brentjens' Handelsonderneming v Stichting Bedrijfspensioenfonds voor de Handel in Bouwmaterialen [1999] ECR I-0000, paragraph 38).
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7 The orders for reference contain no such details.
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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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56. 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, in particular, Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 11; Case C‑53/00 Ferring [2001] ECR I-9067, paragraph 21; and Case C-372/97 Italy v Commission , cited above, paragraph 52).
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52. In that regard, when financial 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 Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 11, and Joined Cases C‑278/92 to C‑280/92 Spain v Commission [1994] ECR I‑4103, paragraph 40).
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23. La directive 2003/35 ne comporte aucune disposition particulière quant aux conditions d’application dans le temps du nouvel article 10 bis de la directive 85/337.
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38
As regards the existence of an ‘objective ground’, it follows from the case-law that that concept must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a Member State (judgments of 23 April 2009, Angelidaki and Others, C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 96 and the case-law cited; of 26 January 2012, Kücük, C‑586/10, EU:C:2012:39, paragraph 27, and of 13 March 2014, Márquez Samohano, C‑190/13, EU:C:2014:146, paragraph 45).
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27. The concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the FTW Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State ( Angelidaki and Others , paragraph 96 and case-law cited).
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60. It should be noted that the Regulation provides for a certain number of mandatory rules of coordination intended to ensure, as expressed in recital 12 in the preamble thereto, the need for unity in the Community. In that system, the main proceedings have a dominant role in relation to the secondary proceedings, as stated in recital 20 in the preamble to the Regulation.
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51 The Court has held, in paragraph 47 of Delimitis, that in order not to breach the general principle of legal certainty, national courts must, when ruling on agreements or practices which may subsequently be the subject of a decision by the Commission, avoid giving decisions which would conflict with a decision contemplated by the Commission in the implementation of Articles 85(1) and 86 and Article 85(3) of the Treaty.
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47 It now falls to examine the consequences of that division of competence as regards the specific application of the Community competition rules by national courts. Account should here be taken of the risk of national courts taking decisions which conflict with those taken or envisaged by the Commission in the implementation of Articles 85(1) and 86, and also of Article 85(3). Such conflicting decisions would be contrary to the general principle of legal certainty and must, therefore, be avoided when national courts give decisions on agreements or practices which may subsequently be the subject of a decision by the Commission.
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36
Accordingly, the concept of intervention ‘through State resources’, within the meaning of that provision, is intended to cover, in addition to advantages granted directly by the State, those granted through a public or private body appointed or established by that State to administer the aid (see judgments of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 58; of 30 May 2013, Doux Élevage and Coopérative agricole UKL-ARREE, C‑677/11, EU:C:2013:348, paragraph 26; and of 19 December 2013, Association Vent De Colère! and Others, C‑262/12, EU:C:2013:851, paragraph 20).
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26
The obligation to consult the Parliament during the legislative procedure in the cases laid down by the Treaty means that the Parliament is consulted afresh whenever the text finally adopted, taken as a whole, differs in essence from the text on which the Parliament has already been consulted, except in cases where the amendments substantially correspond to a wish of the Parliament itself (see, to that effect, judgment of 5 October 1994, Germany v Council, C‑280/93, EU:C:1994:367, paragraph 38 and the case-law cited).
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38 In assessing the cogency of the argument that the European Parliament was not consulted a second time, it should be noted that a fresh consultation of the European Parliament is required whenever the text finally adopted, taken as a whole, differs in essence from the text on which the Parliament has already been consulted, except in cases where the amendments substantially correspond to the wishes of the Parliament itself (judgments in Case C-65/90 Parliament v Council [1992] ECR I-4593, paragraph 16, and Joined Cases C-13/92 to C-16/92 Driessen and Others v Minister van Verkeer en Waterstaat [1993] ECR I-4751, paragraph 23).
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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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70. As regards the General Court’s alleged distortion of the order in Case T-124/99 Autosalone Ispra dei Fratelli Rossi v Commission , suffice it to note that the Court held that specific and detailed awareness by the victim of the facts is not one of the conditions which must be met in order for the limitation period to begin running (order in Case C-136/01 P Autosalone Ispra dei Fratelli Rossi v Commission , paragraph 31; Evropaïki Dynamiki v Commission , paragraph 37). Similarly, the subjective appraisal of the reality of the damage by the victim cannot be taken into consideration for the purpose of determining the moment at which the limitation period begins to run in proceedings brought against the European Union for non-contractual liability ( Commission v Cantina sociale di Dolianova and Others , paragraph 61; Evropaïki Dynamiki v Commission , paragraph 37).
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61. In that connection, it must also be observed that the Court has rejected the argument that the limitation period referred to in Article 46 of the Statute of the Court of Justice cannot begin to run until the victim has specific and detailed knowledge of the facts of the case, since knowledge of the facts is not one of the conditions which must be met in order for the limitation period to begin running (see order in Autosalone Ispra dei Fratelli Rossi v Commission , paragraph 31). The subjective appraisal of the reality of the damage cannot therefore be taken into consideration in order to determine the moment at which the limitation period begins in proceedings being brought against the Community for non-contractual liability.
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27. Therefore, it is not permissible to equate the two terms.
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46
Furthermore, it should be pointed out that, whilst arrangement of a fresh interview when the application for subsidiary protection is examined is capable of providing the applicant with an opportunity to add new material to that which he has already set out in writing, the right to be heard does not render it necessary for him to be offered that chance (see, to that effect, judgment of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraph 71).
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71. In that regard, as the Advocate General observed in point 72 of his Opinion, it must be stated that the right to be heard before the adoption of a return decision cannot be used in order to re-open indefinitely the administrative procedure, for the reason that the balance between the fundamental right of the person concerned to be heard before the adoption of a decision adversely affecting that person and the obligation of the Member States to combat illegal immigration must be maintained.
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203. The Court has consistently held that, in interpreting a provision of Community law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it forms part (Case C-223/98 Adidas [1999] ECR I-7081, paragraph 23; Case C-301/98 KVS International [2000] ECR I-3583, paragraph 21; Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 50, and Case C-191/99 Kvaerner [2001] ECR I-4447, paragraph 30).
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33
In the second place, with regard to the context in which Article 198(2) of the VAT Directive occurs, it must be recalled that that provision enables Member States to introduce, in the situations referred to in that article, a reverse charge mechanism whereby the person liable for payment of VAT is the person who is the recipient of the transaction subject to that tax. That provision is therefore an exception to the general rule set out in Article 193 of that directive that VAT is payable by any taxable person carrying out a taxable supply of goods or services. It must therefore be interpreted strictly, without, however, rendering it ineffective (see, by analogy, judgment of 13 June 2013 in Promociones y Construcciones BJ 200, C‑125/12, EU:C:2013:392, paragraphs 23 and 31 and the case-law cited).
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31. It is true that Article 199(1)(g) of Directive 2006/112 is an exception to the normal rules of that directive and must, for that reason, be strictly interpreted, in accordance with settled case-law. However, that strict interpretation must not have the result that that provision is deprived of its effectiveness (see C-395/11 BLV Wohn- und Gewerbebau [2012] I‑0000, paragraph 33 and the case-law cited). Limiting the application of the reverse charge mechanism to the sale of immovable property carried out only during proceedings for the liquidation of the debtor’s assets would not help to ensure the full achievement of the objective pursued since the risk of tax evasion and avoidance exists from the moment at which the debtor has been declared insolvent.
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48. Cependant, il ne saurait nullement être exclu en l’occurrence que des entreprises établies dans des États membres autres que la République italienne aient été ou soient intéressées à exercer une activité de certification dans ce dernier État membre (voir, en ce sens, arrêt Attanasio Group, précité, point 24).
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81
In those circumstances, it must be held that, to the extent that the consequences that Bionorica draws from the distortion, by the General Court, of the facts concerning it arise from a misreading of the order in Case T‑619/14, the arguments advanced by the latter in that regard must be rejected as ineffective in that they could not lead to the setting aside of that order (see, to that effect, judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraphs 87 and 88, and of 26 July 2017, AGC Glass Europe and Others v Commission, C‑517/15 P, not published, EU:C:2017:598, paragraphs 63 to 65).
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Consequently, the first ground of appeal must be rejected in its entirety as ineffective.
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81. It should be noted at the outset, first, that in matters concerning the common agricultural policy the Community legislature has a broad discretion which corresponds to the political responsibilities given to it by Articles 34 EC and 37 EC and that the Court has, on several occasions, held that the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate, having regard to the objective which the competent institution is seeking to pursue (see Case C‑280/93 Germany v Council [1994] ECR I‑4973, paragraphs 89 and 90, and Case C‑306/93 SMW Winzersekt [1994] ECR I‑5555, paragraph 21).
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49. Regarding the place of performance of ‘the obligation in question’, the first indent of Article 5(1)(b) of Regulation No 44/2001 defines that criterion of a link autonomously in the case of the sale of goods in order to reinforce the primary objective of unification of the rules of jurisdiction whilst ensuring their predictability (see, to that effect, Color Drack , paragraph 24, and Rehder , paragraph 33).
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33. The Court next noted that, regarding the place of performance of the obligations arising from contracts for the sale of goods, Regulation No 44/2001, in the first indent of Article 5(1)(b), defines that criterion of a link autonomously, in order to reinforce the objectives of unification of the rules of jurisdiction and predictability. Accordingly, in such cases the place of delivery of the goods is established as the autonomous linking factor to apply to all claims founded on one and the same contract of sale ( Color Drack , paragraphs 24 and 26).
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38. À cet égard, il convient de préciser que, dès lors que le titulaire d’un brevet obtient un CCP sur un principe actif, sur le fondement de l’AMM du premier médicament mis sur le marché comprenant, parmi ses principes actifs, le principe actif protégé par le brevet de base (arrêt Medeva, précité, point 40), tel que, dans l’affaire au principal, un CCP sur le HPV-16 sur le fondement de l’AMM du Gardasil, le libellé même de l’article 3, sous c), du règlement nº 469/2009 s’oppose à ce que ce titulaire obtienne, sur la base du même brevet, un autre CCP sur ce même HPV-16 en tant que «produit» sur le fondement d’une AMM ultérieure d’un autre médicament contenant également celui-ci, à moins que, dans ce dernier médicament, le «produit» visé par la demande de CCP concerne en réalité un HPV-16 différent et entrant dans le champ de la protection conférée par le brevet de base invoqué à l’appui de cette demande [voir, en ce sens, arrêt Neurim Pharmaceuticals (1991), précité, point 30].
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18. Or, toute interprétation divergente au niveau national des obligations d’exonération prévues par la directive 2003/96 non seulement porterait atteinte à l’objectif d’harmonisation de la réglementation de l’Union et à la sécurité juridique, mais risquerait d’introduire des inégalités de traitement entre les opérateurs économiques concernés (voir, en ce sens, arrêts du 1 er avril 2004, Deutsche See-Bestattungs-Genossenschaft, C‑389/02, Rec. p. I-3537, point 21, et du 1 er mars 2007, Jan De Nul, C‑391/05, Rec. p. I-1793, point 23).
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23. An independent interpretation of those exemptions is all the more essential because Article 8(1) of Directive 92/81 imposes on the Member States the obligation not to levy the harmonised excise duty on mineral oils supplied for use as fuel for a number of activities set out in that provision (see Case C-346/97 Braathens [1999] ECR I‑3419, paragraph 31, and Deutsche See-Bestattungs-Genossenschaft , paragraph 20). Any divergent interpretation at national level of those exemption obligations provided for in Directive 92/81 would not only undermine the objectives of the Community legislation and legal certainty, but could introduce unequal treatment between the economic operators concerned (see Deutsche See-Bestattungs-Genossenschaft , paragraph 21).
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93. Or, une telle répétition de comportements infractionnels d’un État membre, dans un secteur spécifique de l’action de l’Union, constitue un indicateur de ce que la prévention effective de la répétition future d’infractions analogues au droit de l’Union est de nature à requérir l’adoption d’une mesure dissuasive, telle que la condamnation au paiement d’une somme forfaitaire (voir arrêt Commission/Italie, C‑196/13, EU:C:2014:2407, point 116 et jurisprudence citée).
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65. Since Directive 77/799 provides for the possibility of national tax authorities requesting information which they cannot obtain for themselves, the Court has ruled that the use, in Article 2(1) of Directive 77/799, of the word ‘may’ indicates that, whilst those authorities have the possibility of requesting information from the competent authority of another Member State, such a request does not in any way constitute an obligation. It is for each Member State to assess the specific cases in which information concerning transactions by taxable persons in its territory is lacking and to decide whether those cases justify submitting a request for information to another Member State ( Twoh International , paragraph 32).
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32. The mutual assistance directive does provide, with a view to preventing tax evasion, for the possibility of national tax authorities requesting information which they cannot obtain for themselves. Thus, the fact that, both in Article 2(1) of that directive and in Article 5(1) of the administrative cooperation regulation, the Community legislature used the word ‘may’ indicates that, whilst those authorities have the possibility of requesting information from the competent authority of another Member State, such a request does not in any way constitute an obligation. It is for each Member State to assess the specific cases in which information concerning transactions by taxable persons in its territory is lacking and to decide whether those cases justify submitting a request for information to another Member State.
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57
As the Court has already held, that point pursues the objective of adopting as the starting point for the setting of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (see judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76).
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83. However, although in preliminary ruling proceedings it is for the national court to establish whether such objective factors exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (Case C-278/93 Freers and Speckmann [1996] ECR I-1165, paragraph 24, Seymour-Smith and Perez , paragraph 68, and Case C-187/00 Kutz-Bauer [2003] ECR I-2741, paragraph 52).
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52. However, although in preliminary ruling proceedings it is for the national court to establish whether such objective reasons exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see Hill and Stapleton , cited above, paragraph 36, and Seymour-Smith and Perez , cited above, paragraph 68).
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55. In the light of the above considerations, the answer to the questions referred must be that Articles 56 EC and 58 EC preclude legislation whereby the entitlement of a person fully taxable in one Member State to a tax credit in relation to dividends paid to him by limited companies is excluded where those companies are not established in that State.
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58
That is why the joint and several liability as between two companies constituting an economic unit cannot be reduced, as regards the payment of the fine, to a type of security provided by the parent company in order to guarantee payment of the fine imposed on the subsidiary (see, to that effect, judgments of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraphs 55 and 56, and of 19 June 2014, FLS Plast v Commission, C‑243/12 P, EU:C:2014:2006, paragraph 107).
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107. The Court has already held that, as regards payment of a fine imposed for breach of the competition rules, the joint and several liability between two companies constituting an economic entity cannot be reduced to a type of security provided by the parent company in order to guarantee payment of the fine imposed on the subsidiary and that an argument that that parent company could not be ordered to pay a fine higher than the fine imposed on its subsidiary is therefore unfounded (see, to this effect, Case C‑50/12 P Kendrion v Commission EU:C:2013:771, paragraphs 56 and 58). This case-law takes account of the fact that the principle that penalties must be specific to the offender and the offence requires, in accordance with Article 23(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003 L 1, p. 1), that the amount of the fine to be paid jointly and severally must be determined by reference to the gravity of the infringement for which the undertaking concerned is considered individually responsible and the duration of the infringement (Joined Cases C‑247/11 P and C‑253/11 P Areva and Others v Commission EU:C:2014:257, paragraph 127 and the case-law cited).
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21 In the first place, a duty such as the general goods duty at issue in the main proceedings, forms part, together with shipping duty in particular, of a general system of internal taxes payable for the use of commercial ports and their facilities.
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28 It must accordingly be determined whether the national legislation was suitable for achieving the objective of protecting the health of animals and whether it went beyond what was necessary to achieve it (see, to that effect, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 57).
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57 As regards the principle of proportionality, the Court has held that, in order to establish whether a provision of Community law complies with that principle, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see, in particular, Case C-426/93 Germany v Council [1995] ECR I-3723, paragraph 42).
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62 Second, the minimum uninterrupted weekly rest period of twenty-four hours provided for by the first sentence of Article 5, plus the eleven hours' daily rest referred to in Article 3, may be the subject of the same derogations as those authorized in relation to Article 4, referred to above. Further derogations relate to shift work activities and activities involving periods of work split up over the day (Article 17(2), point 2.3). In addition, the reference period of seven days may be extended to fourteen days (Article 16(1)).
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33. It must be pointed out that Article 11 of the VAT Directive derives from the second subparagraph of Article 4(4) of the Sixth Directive. Whereas point 2 of Annex A to Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes – Structure and procedures for application of the common system of value added tax (OJ, English Special Edition 1967, p. 16), which introduced the concept of a VAT group into European Union law, permitted Member States ‘not to consider as separate taxable persons, but as one single taxable person’, persons who are organically linked to one another by economic, financial or organisational relationships, the words ‘as separate taxable persons’ were abandoned in the drafting of the second subparagraph of Article 4(4) of the Sixth Directive ( Commission v Ireland , paragraph 37).
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37. It must be pointed out that Article 11 of the VAT Directive derives from the second subparagraph of Article 4(4) of the Sixth Directive. Whereas point 2 of Annex A to Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes – Structure and procedures for application of the common system of value added tax (OJ, English Special Edition 1967, p. 16), which introduced the concept of a VAT group into European Union law, permitted Member States ‘not to consider as separate taxable persons, but as one single taxable person’, persons who are organically linked to one another by economic, financial or organisational relationships, the words ‘as separate taxable persons’ were abandoned in the drafting of the second subparagraph of Article 4(4) of the Sixth Directive.
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42
It has thus been held by the Court that the Commission was not under an obligation to inform the undertaking concerned before the notification of the statement of objections that it was in possession of evidence since it is the notification of the statement of objections, on the one hand, and access to the file enabling the addressee of the statement of objections to peruse the evidence in the Commission’s file, on the other, that ensure that the rights of the defence are observed and that the undertaking concerned is able to rely in full on its rights of defence after that notification (see, inter alia, judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraphs 58 and 59).
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48. Selon une jurisprudence constante, l’interdiction des mesures d’effet équivalent à des restrictions quantitatives à l’importation édictée à l’article 28 CE vise toute mesure des États membres susceptible d’entraver, directement ou indirectement, actuellement ou potentiellement, le commerce intracommunautaire (voir, en ce sens, arrêts du 15 novembre 2005, Commission/Autriche, C‑320/03, Rec. p. I‑9871, point 67; du 26 octobre 2006, Commission/Grèce, C‑65/05, Rec. p. I‑10341, point 27, et du 5 juin 2008, Commission/Pologne, C‑170/07, point 43).
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67. The fact that, as the Republic of Austria argues, there are alternative routes or other means of transport capable of allowing the goods in question to be transported does not negate the existence of an obstacle. It has been established in the case-law since the judgment of 11 July 1974 in Case 8/74 Dassonville [1974] ECR 837, paragraph 5, that Articles 28 EC and 29 EC, taken in their context, must be understood as being intended to eliminate all barriers, whether direct or indirect, actual or potential, to trade flows in intra-Community trade (see Case C‑112/00 Schmidberger [2003] ECR I-5659, paragraph 56).
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31. It follows from all of the foregoing that Article 43(1) of Regulation No 44/2001 must be interpreted as meaning that a creditor of a debtor cannot lodge an appeal against a decision on a request for a declaration of enforceability if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration of enforceability.
Costs
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54. That criterion had already been established by the case‑law of the Court prior to the entry into force of Directive 2004/17. According to that case‑law, a service concession existed where the agreed method of remuneration consisted in the right of the service provider to exploit for payment his own service (see, to that effect, Telaustria and Telefonadress , paragraph 58; order in Case C‑358/00 Buchhändler‑Vereinigung [2002] ECR I‑4685, paragraphs 27 and 28; Case C‑382/05 Commission v Italy [2007] ECR I‑6657, paragraph 34; and Case C‑437/07 Commission v Italy [2008] not published in the ECR, paragraph 29).
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29. Sur ce point, la Cour a considéré que l’on est en présence d’une concession de services lorsque le mode de rémunération convenu tient dans le droit du prestataire d’exploiter sa propre prestation et implique que celui-ci prenne en charge le risque lié à l’exploitation des services en question (voir arrêt du 18 juillet 2007, Commission/Italie, C-382/05, Rec. p. I-6657, point 34 et jurisprudence citée).
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105. It should be remembered that, in accordance with settled case-law, the requirements flowing from the protection of general principles recognised in the Community legal order, which include fundamental rights, are also binding on Member States when they implement Community rules, and that consequently they are bound, as far as possible, to apply the rules in accordance with those requirements (see Case C-2/92 Bostock [1994] ECR I-955, paragraph 16; Case C‑107/97 Rombi and Arkopharma [2000] ECR I-3367, paragraph 65; and, to this effect, ERT , paragraph 43).
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47. The Court has held that the principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of European Union law; nor can the conduct of a national authority responsible for applying European Union law, which acts in breach of that law, give rise to a legitimate expectation on the part of a trader of beneficial treatment contrary to European Union law (Case 316/86 Krücken [1988] ECR 2213, paragraph 24, Joined Cases C-31/91 to C-44/91 Lageder and Others [1993] ECR I-1761, paragraph 35, and Case C‑94/05 Emsland-Stärke [2006] ECR I-2619, paragraph 31).
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24 IL EN RESULTE QUE LE PRINCIPE DE LA PROTECTION DE LA CONFIANCE LEGITIME NE PEUT ETRE INVOQUE A L' ENCONTRE D' UNE DISPOSITION PRECISE D' UN TEXTE DE DROIT COMMUNAUTAIRE ET QUE LE COMPORTEMENT D' UNE AUTORITE NATIONALE CHARGEE D' APPLIQUER LE DROIT COMMUNAUTAIRE, QUI EST EN CONTRADICTION AVEC CE DERNIER, NE SAURAIT FONDER, DANS LE CHEF D' UN OPERATEUR ECONOMIQUE, UNE CONFIANCE LEGITIME A BENEFICIER D' UN TRAITEMENT CONTRAIRE AU DROIT COMMUNAUTAIRE
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28 As regards the first of those points, although the application of a taxation scale for imported second-hand cars based on a single criterion of depreciation as in the case of the legislation at issue in the main proceedings, which, in this case, was based on the number of years for which the vehicle was used is not in itself contrary to the first paragraph of Article 95 of the Treaty, it nevertheless appears that taking other factors of depreciation into account, such as the make, the model, the kilometrage, the method of propulsion, the mechanical state or the state of maintenance of the vehicle, is likely to result in the fixed scale reflecting the actual depreciation of vehicles much more precisely and permits the aim of ensuring that the tax charged on imported second-hand vehicles does not in any case exceed the amount of the residual tax incorporated in the value of similar second-hand vehicles already registered in the national territory to be achieved much more easily.
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53. In that regard, it should be noted, in particular, that, according to the case-law of the Court, a condition of residence is, as a rule, inappropriate as regards migrant workers and frontier workers since, having participated in the employment market of a Member State, they have in principle established a sufficient link of integration with the society of that State, allowing them to benefit from the principle of equal treatment, as compared with, respectively, national workers and resident workers. The link of integration arises, in particular, from the fact that, through the taxes which they pay in the host Member State by virtue of their employment there, migrant and frontier workers also contribute to the financing of the social policies of that State (see, to that effect, inter alia, Case C-542/09 Commission v Netherlands [2012] ECR, paragraphs 63, 65 and 66 and the case-law cited).
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65. As regards migrant workers and frontier workers, the fact that they have participated in the employment market of a Member State establishes, in principle, a sufficient link of integration with the society of that Member State, allowing them to benefit from the principle of equal treatment, as compared with national workers, as regards social advantages. That principle is applicable not only to all employment and working conditions, but also to all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory (see, inter alia, Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 25, and Commission v Germany , paragraph 39).
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29. The expression ‘use of the mark as a trade mark’ must therefore be understood as referring solely to use of the mark for the purposes of the identification, by the relevant class of persons, of the product or service as originating from a given undertaking.
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34. A tariff established by a professional organisation such as the Osservatorio may none the less have the character of legislation, inter alia, where the members of that organisation are experts who are independent of the economic operators concerned and they are required, under the law, to set tariffs taking into account not only the interests of the undertakings or associations of undertakings in the sector which has appointed them but also the public interest and the interests of undertakings in other sectors or users of the services in question (see, to that effect, judgments in Reiff , EU:C:1993:886, paragraphs 17 to 19 and 24; Delta Schiffahrts- und Speditionsgesellschaft , EU:C:1994:240, paragraphs 16 to 18 and 23; DIP and Others , C‑140/94 to C‑142/94, EU:C:1995:330, paragraphs 18 and 19; Commission v Italy , C‑35/96, EU:C:1998:303, paragraph 44; and Arduino , EU:C:2002:97, paragraph 37).
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17 Furthermore, the BinnSchVG does not allow the freight commissions to determine tariffs on the basis solely of the interests of carriers and shippers, but, in Paragraph 21, requires them to take into account the interests of the agricultural sector and of medium-size businesses or of areas which are economically weak and have poor transport services.
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89. Even were it accepted that, pursuant to provisions of European Union secondary legislation, a Member State has an obligation to guarantee the supply of energy within its territory, as is claimed by the Portuguese Republic, compliance with such an obligation cannot be relied on to justify any measure which is contrary in principle to a fundamental freedom.
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17. In the absence of a definition of ‘leasing’ and ‘letting of immovable property’ in Article 13B(b) of the Sixth Directive, the Court has defined the letting of immovable property, within the meaning of that provision, as the landlord of property assigning to the tenant, in return for rent and for an agreed period, the right to occupy his property and to exclude any other person from it (see, to that effect, Case C‑326/99 ‘Goed Wonen’ [2001] ECR I‑6831, paragraph 55; Case C‑409/98 Mirror Group [2001] ECR I‑7175, paragraph 31; Case C‑108/99 Cantor Fitzgerald International [2001] ECR I‑7257, paragraph 21; and also Commission v Ireland, paragraphs 52 to 57; Sinclair Collis , paragraph 25; Temco Europe, paragraph 19; and Fonden Marselisborg Lystbådehavn , paragraph 30).
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57 Where access to roads is provided, what interests the user is the possibility offered to him of making a particular journey rapidly and more safely. The duration of the use of the road is not a factor taken into account by the parties, in particular in determining the price.
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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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38. It should be recalled, as a preliminary point, that the principle of State liability for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty (judgments in Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 35, and in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-0000, paragraph 31). It follows that that principle holds good for any case in which a Member State breaches Community law (judgment in Brasserie du Pêcheur and Factortame , cited above, paragraph 32).
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32. It follows that that principle holds good for any case in which a Member State breaches Community law, whatever be the organ of the State whose act or omission was responsible for the breach.
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46. Dans ces conditions, la Commission pouvait valablement se limiter à établir l’obligation de restitution des aides en cause et laisser aux autorités nationales le soin de calculer le montant précis des sommes à recouvrir. Il appartenait, dès lors, à la République hellénique de démontrer que, malgré les indications chiffrées ainsi fournies, elle ne pouvait pas donner suite à la décision du 14 septembre 2005 ni récupérer les sommes visées par cette décision (voir arrêts du 3 juillet 2001, Commission/Belgique, C-378/98, Rec. p. I-5107, points 50 et 51, ainsi que Commission/Grèce, précité, point 40). Or, une telle démonstration n’a pas été fournie par cet État membre.
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31. It is, furthermore, apparent from the Court’s case-law that it is compatible with Article 58(1) of the Communities-Poland Agreement, and therefore with Article 59(1) of the Communities-Bulgaria Agreement and of the Communities-Slovakia Agreement, for the competent authorities of the host Member State to reject an application made under Article 44(3), Article 45(1) or Article 45(3) of those agreements respectively on the ground that, when that application was made, the applicant was residing illegally within its territory by reason of false representations made to those authorities for the purpose of obtaining initial leave to enter that Member State on a separate basis or of the failure to comply with an express condition attached to that entry and relating to the authorised duration of his stay in that Member State ( Gloszczuk , paragraph 77).
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77 Consequently, it is compatible with Article 58(1) of the Association Agreement for the competent authorities of the host Member State to reject an application made under Article 44(3) of that Agreement on the ground that, when that application was made, the applicant was residing illegally within its territory by reason of false representations made to those authorities for the purpose of obtaining initial leave to enter that Member State on a separate basis or of the failure to comply with an express condition attached to that entry and relating to the authorised duration of his stay in that Member State.
Whether the requirement for a new application for establishment to be submitted in due and proper form is compatible with the rule of equal treatment laid down in Article 44(3) of the Association Agreement and with the condition mentioned in Article 58(1) thereof
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29. Such a measure relates directly to the legal capacity of a natural person (see, by analogy, judgment in Schneider , C‑386/12, EU:C:2013:633, paragraph 26) and, by its nature, constitutes an action intended to ensure that the requirements of protection and assistance of minor children are met.
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54. That conclusion contradicts the case-law of the Court of Justice, in particular the judgment in France v Commission (C‑241/94, EU:C:1996:353, paragraphs 23 and 24), in which the Court of Justice found that, by virtue of its aim and general scheme, the system at issue was liable to place certain undertakings in a more favourable situation than others since the competent authority enjoyed a degree of latitude which enabled it to adjust its financial assistance having regard to various considerations such as, in particular, the choice of the beneficiaries, the amount of financial assistance and the conditions under which it was provided. It also disregarded the judgment in P (C‑6/12, EU:C:2013:525, paragraph 27), in which the Court of Justice held that, when national legislation confers a discretion on national authorities with regard to the detailed rules for the application of the measure at issue, the decisions of those authorities lack selectivity only if that discretion is limited by objective criteria, which are not connected with the system put in place by the legislation in question.
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23 However, as the Commission has rightly pointed out, the FNE enjoys a degree of latitude which enables it to adjust its financial assistance having regard to a number of considerations such as, in particular, the choice of beneficiaries, the amount of the financial assistance and the conditions under which it is provided. The French Government itself concedes that the administration may depart from its own guidelines where particular circumstances justify that course of action.
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59. Next, it should be noted that, in such a factual context, as the Court has already held, the principles of equal treatment and transparency of tender procedures imply an obligation on the part of contracting authorities to interpret the award criteria in the same way throughout the procedure (see, by analogy, Case C‑448/01 EVN and Wienstrom [2003] ECR I‑14527, paragraph 92).
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34. Furthermore, the provisions of Title II of Regulation No 1408/71, of which Article 13 forms part, are intended not only to prevent the concurrent application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons covered by that regulation are not left without social security cover because there is no legislation which is applicable to them ( Kits van Heijningen, cited above, paragraph 12, and Kuusijärvi , cited above, paragraph 28).
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12 As the Court has pointed out on a number of occasions, the provisions of Title II of Regulation No 1408/71, which include Article 13, constitute a complete system of conflict rules ( see, in particular, the judgment of 10 July 1986 in Case 60/85 Luijten v Raad van Arbeid (( 1986 )) ECR 2365 ). Those provisions are intended not only to prevent the simultaneous application of a number of national legislative systems and the complications which might ensue, but also to ensure that the persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation which is applicable to them .
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40. First, a prescribing doctor is required, from the point of view of professional conduct, not to prescribe a given medicinal product if it is not fitting for the therapeutic treatment of his patient, despite the existence of public financial inducements for its prescription.
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60. So far as concerns the Portuguese Republic’s argument that the potential changes to the legislation at issue could render the selection of a second supplier superfluous, it should be recalled that the Court has repeatedly held that the existence of a failure to fulfil obligations must be assessed in the light of the EU legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (see, inter alia, judgments in Commission v Belgium , C‑377/03, EU:C:2006:638, paragraph 33 and the case-law cited, and Commission v France , C‑170/09, EU:C:2010:97, paragraph 6 and the case-law cited). Therefore, the possibility that legislation might be amended does not relieve a Member State of its obligation to transpose the directive in force into its national legal order within the period prescribed for that transposition.
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33. Regarding the first plea of inadmissibility, the Court notes that it is settled case-law that, in the context of proceedings under Article 226 EC, the existence of a failure to fulfil obligations must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (see, inter alia, Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 42, and Case C‑365/97 Commission v Italy [1999] ECR I-7773, paragraph 32).
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50. Accordingly, recourse to criteria founded, first, on the waste-production capacity of the ‘holders’, calculated on the basis of the surface area of the property which they occupy and of its use, and/or, second, on the nature of the waste produced can provide a means of calculating the costs of disposing of that waste and allocating them among the various ‘holders’, since those two parameters are such as to have a direct impact on the amount of the costs.
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32. The existence of a likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see, to that effect, Case C-251/95 SABEL [1997] ECR I-6191, paragraph 22; Lloyd Schuhfabrik Meyer , paragraph 18; Medion , paragraph 27; OHIM v Shaker , paragraph 34; and Nestlé v OHIM , paragraph 33).
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27. The existence of a likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see Case C-251/95 SABEL [1997] ECR I-6191, paragraph 22; Lloyd Schuhfabrik Meyer , cited above, paragraph 18, and Case C-425/98 Marca Mode [2000] ECR I-4861, paragraph 40, in addition to, in relation to Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), drafted in terms substantially identical to those of Article 5(1)(b) of the directive, the order of 28 April 2004 in Case C-3/03 P Matratzen Concord v OHIM [2004] ECR I-3657, paragraph 28).
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23 It follows from all the foregoing considerations that network cards must be classified under heading No 8471 of the Combined Nomenclature as units of automatic data processing machines.
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55. In accordance with Article 3(2), (4) and (6) of the Framework Directive, the Member States must not only guarantee the independence of NRAs by ensuring that they are legally distinct from, and functionally independent of, all organisations providing electronic communications networks, equipment or services, but must also publish, in an easily accessible form, the tasks to be undertaken in accordance with the NRF by those authorities, in particular where the tasks are granted to several bodies, and notify to the Commission the names of the authorities entrusted with carrying out those tasks, and their respective responsibilities (see, to that effect, judgments in Comisión del Mercado de las Telecomunicaciones , C‑82/07, EU:C:2008:143, paragraph 25, and in UPC Nederland , C‑518/11, EU:C:2013:709, paragraph 52).
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25. Thus, in accordance with Article 3(2), (4) and (6) of the Framework Directive, the Member States must not only guarantee the functional independence of regulatory authorities in relation to the organisations providing electronic communications networks, equipment or services, but must also publish, in an easily accessible form, the tasks to be undertaken by the national regulatory authorities, and notify to the Commission the names of the regulatory authorities entrusted with carrying out those tasks, and their res pective responsibilities.
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26. However, the Court has consistently held that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, judgment in Feltgen and Bacino Charter Company , C‑116/10, EU:C:2010:824, paragraph 12 and the case-law cited). Also, where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness (see judgment in Lassal , C‑162/09, EU:C:2010:592, paragraph 51 and the case-law cited).
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