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39 In order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (Case 35/85 Procureur de la République v Tissier [1986] ECR 1207, paragraph 9, and Case C-315/88 Bagli Pennacchiotti [1990] ECR I-1323, paragraph 10).
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9 AS FAR AS THAT POINT IS CONCERNED , IT IS FOR THE COURT , WHEN FACED WITH QUESTIONS WHICH ARE NOT FRAMED IN AN APPROPRIATE MANNER OR WHICH GO BEYOND ITS FUNCTIONS UNDER ARTICLE 177 , TO EXTRACT FROM ALL THE INFORMATION PROVIDED BY THE NATIONAL COURT , IN PARTICULAR FROM THE GROUNDS OF THE DECISION REFERRING THE QUESTIONS , THE POINTS OF COMMUNITY LAW WHICH REQUIRE INTERPRETATION OR WHOSE VALIDITY IS AT ISSUE , HAVING REGARD TO THE SUBJECT-MATTER OF THE DISPUTE . IN ORDER TO PROVIDE A SATISFACTORY ANSWER TO A NATIONAL COURT WHICH HAS REFERRED A QUESTION TO IT , THE COURT OF JUSTICE MAY DEEM IT NECESSARY TO CONSIDER PROVISIONS OF COMMUNITY LAW TO WHICH THE NATIONAL COURT HAS NOT REFERRED IN THE TEXT OF ITS QUESTION . HOWEVER , IT IS FOR THE NATIONAL COURT TO DECIDE WHETHER OR NOT THE RULE OF COMMUNITY LAW , AS INTERPRETED BY THE COURT OF JUSTICE PURSUANT TO ARTICLE 177 , IS APPLICABLE IN THE CASE BROUGHT BEFORE IT .
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54 In those circumstances, it is impossible to accept that the time-limit for notification laid down in the Fifth Code, which in practice is more favourable to Member States than that laid down in the Second Code (although, conversely, the period within which the Commission is to authorise the aid is less generous in the Fifth Code than in the Second Code), and the amendment of which is not even contemplated, constitutes, unlike that laid down in the Second Code, merely a procedural time-limit of an indicative nature.
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57 The reasoned opinion must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question failed to fulfil one of its obligations under the Treaty (see in particular Case C-289/94 Commission v Italy [1996] ECR I-4405, paragraph 16). In this case, the reasons given by the Commission on that point were essentially legal considerations in relation to which the explanations given by the Italian Government were not relevant.
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16 Although the reasoned opinion provided for in Article 169 of the Treaty must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question failed to fulfil one of its obligations under the Treaty, the letter of formal notice is not subject to such strict requirements of precision, since, of necessity, it cannot contain anything more than an initial brief summary of the complaints. There is therefore nothing to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it already made more generally in the letter of formal notice (see, in particular, Commission v Italy, cited above, paragraph 21).
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27. It is therefore necessary to examine whether national legislation, such as that at issue in the main proceedings, affects the powers that the NRA concerned derives from the abovementioned provisions of the Framework Directive and the Universal Service Directive.
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58. The derogation provided for in Article 58(1)(a) EC is itself limited by Article 58(3) EC, which provides that the national provisions referred to in paragraph 1 of that article ‘shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 56’ (see Case C‑35/98 Verkooijen [2000] ECR I‑4071, paragraph 44; Case C‑319/02 Manninen [2004] ECR I‑7477, paragraph 28; and Jäger , paragraph 41). Moreover, in order to be justified, the difference in treatment established in relation to inheritance and transfer duties payable in respect of an immovable property situated in the Kingdom of Belgium between the person who, at the time of death, was residing in that Member State and the person who, at the time of death, was residing in another Member State, must not go beyond what is necessary to achieve the objective pursued by the legislation at issue.
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41. The derogation provided for in Article 73d(1)(a) of the Treaty is itself, as the German Government observed, limited by Article 73d(3) of the Treaty, which provides that the national provisions referred to in paragraph 1 of that article ‘shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 73b’ (see Verkooijen , paragraph 44, and Manninen , paragraph 28). Moreover, in order to be justified, the difference in treatment between the agricultural land and forestry assets situated in Germany and those situated in the other Member States must not go beyond what is necessary to achieve the objective pursued by the legislation at issue.
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74. Il importe de rappeler, en réponse à l’argumentation développée par Comap, que, conformément à une jurisprudence constante, lorsqu’il est établi qu’une entreprise a participé à des réunions entre entreprises concurrentes ayant un caractère anticoncurrentiel, il incombe à cette entreprise d’avancer des indices de nature à établir que sa participation était dépourvue de tout esprit anticoncurrentiel, en démontrant qu’elle avait indiqué à ses concurrents qu’elle participait à ces réunions dans une optique différente de la leur (voir, en ce sens, arrêts Aalborg Portland e.a./Commission, précité, point 81; du 25 janvier 2007, Sumitomo Metal Industries et Nippon Steel/Commission, C‑403/04 P et C‑405/04 P, Rec. p. I‑729, point 47, ainsi que Archer Daniels Midland/Commission, précité, point 119).
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30. It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the Community legislature subsequently laid down special protection for women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave (Case C-32/93 Webb [1994] ECR I-3567, paragraph 21; Brown , paragraph 18; C-109/00 Tele Danmark [2001] ECR I-6993, paragraph 26; and McKenna , paragraph 48).
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48. In view of the harmful effects which the risk of dismissal may have on the physical and mental state of pregnant workers, workers who have recently given birth or those who are breastfeeding, Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1) laid down a prohibition of dismissal during a period from the beginning of pregnancy to the end of maternity leave.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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39. However, it is also clear from the case-law of the Court that, in certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process, the primary aim of which is not their production, may be regarded not as residue, but as by‑products which their holder does not seek to ‘discard’, within the meaning of Article 1(a) of the Directive, but which he intends to exploit or market on terms advantageous to himself in a subsequent process – including, as the case may be, in order to meet the needs of economic operators other than the producer of those substances – provided that such re-use is a certainty, does not require any further processing prior to re-use and forms an integral part of the process of production or use (see, to that effect, Palin Granit , paragraphs 34 to 36; Case C‑114/01 AvestaPolarit Chrome [2003] ECR I‑8725, paragraphs 33 to 38; Niselli , paragraph 47; and also Case C‑416/02 Commission v Spain [2005] ECR I‑7487, paragraphs 87 and 90, and Case C‑121/03 Commission v Spain [2005] ECR I‑7569, paragraphs 58 and 61).
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36 However, having regard to the obligation, recalled at paragraph 23 of this judgment, to interpret the concept of waste widely in order to limit its inherent risks and pollution, the reasoning applicable to by-products should be confined to situations in which the reuse of the goods, materials or raw materials is not a mere possibility but a certainty, without any further processing prior to reuse and as an integral part of the production process.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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61. As regards the Bundesanstalt für Arbeit ' s argument based on employment policy and, in particular, encouraging of recruitment, it must be observed that the Member States are required to choose measures likely to attain the objectives pursued in the field of employment. The Court has recognised that the Member States have a broad margin of discretion in exercising that power (see Seymour-Smith and Perez , paragraph 74).
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74 It is true that in paragraph 33 of the Nolte case the Court observed that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion.
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39. Toutefois, les États membres sont tenus, en vertu de l’article 4, paragraphe 3, TUE de faciliter à la Commission l’accomplissement de sa mission, consistant notamment, selon l’article 17, paragraphe 1, TUE, à veiller à l’application des dispositions du traité FUE ainsi que des dispositions prises par les institutions de l’Union européenne en vertu de celui-ci (voir, en ce sens, arrêt Commission/Italie, C‑135/05, EU:C:2007:250, point 27 et jurisprudence citée).
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44. Il en est de même de l’argument de la République hellénique selon lequel le caractère général et obligatoire du régime de pension litigieux ne présenterait pas les caractéristiques d’un régime professionnel ou complémentaire. En effet, la circonstance qu’un régime particulier de pension, tel que celui prévu par le code, s’insère dans un cadre législatif général et harmonisé de régimes de pension ne suffit pas à exclure les prestations de pension fournies en vertu d’un tel régime du champ d’application de l’article 141 CE (voir, en ce sens, arrêt Niemi, précité, point 42). En outre, contrairement à ce que prétend cet État membre, l’applicabilité de cette disposition aux prestations de pension n’est nullement subordonnée à la condition qu’une pension soit une pension complémentaire par rapport à une prestation servie par un régime légal de sécurité sociale (arrêts précités Beune, point 37; Griesmar, point 37, et Niemi, point 42).
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37 At all events, it must be emphasized that, as is apparent from Barber (paragraph 27), application of Article 119 is not conditional upon a pension being supplementary to a benefit provided by a statutory social security scheme. Benefits awarded under an occupational scheme which, partly or entirely, take the place of the benefits paid by a statutory social security scheme may fall within the scope of Article 119.
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68. Secondly, it is clear from the order for reference that the concession granted in 1984 was to have effect until 2029. Thus, its early termination pursuant to Decree-Law 273/2005, the effect of which will be that the Comune di Rodengo Saiano will have to make the award of a new concession subject to competitive tendering, could constitute enhanced compliance with Community law.
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81. However, first, it must be held that, as stated by the General Court in paragraph 63 of the judgment under appeal, the German language version of point 6 refers in a ‘very clear’ way to ‘sales in the markets concerned by the infringement’ (‘Umsatz auf den vom Verstoß betroffenen Märkten’). Second, according to settled case-law, although the other language versions of point 6 do not make it possible to justify clearly that literal interpretation of point 13 of the 2006 Guidelines, as the appellants claim, the need for a uniform interpretation of the various language versions of a provision of European Union law requires, in the case of divergence between them, that the provision in question be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 28, and Case C‑63/06 Profisa [2007] ECR I‑3239, paragraph 14). It is apparent from paragraph 76 above that the literal interpretation adopted by the General Court in paragraph 63 of the judgment under appeal is fully consistent with the objective pursued by that provision and, more generally, with the objective of EU rules on competition, as the General Court also stated in paragraph 64 of the judgment under appeal.
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28 As the case-law of the Court shows, interpretation of a provision of Community law involves a comparison of the language versions (see Case 283/81 CILFIT, cited above, paragraph 18). Moreover, the need for a uniform interpretation of those versions requires, in the case of divergence between them, that the provision in question be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case C-449/93 Rockfon [1995] ECR I-4291, paragraph 28).
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25. However, when there is presented in one Member State a marketing authorisation application for a plant protection product already authorised in another Member State, under Article 10(1) of the Directive the former State must, subject to certain conditions and allowing for certain exceptions, refrain from requiring the repetition of tests and analyses already carried out in that other State, which permits thereby a saving of time and money involved in gathering the required information.
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27. The Court has repeatedly held that a benefit is regarded as a social security benefit where it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a statutorily defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Hosse , paragraph 37, and Commission v Parliament and Council , paragraph 56).
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56. By contrast, a benefit is regarded as a social security benefit where it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a statutorily defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14; Case C‑356/89 Newton [1991] ECR I‑3017; Case C‑78/91 Hughes [1992] ECR I‑4839, paragraph 15; Molenaar , paragraph 20; and Jauch , paragraph 25). It was on the basis of that case-law, which takes account of the components of German care insurance benefits, that the Court held, in paragraph 25 of Molenaar , that those benefits were to be regarded as ‘sickness benefits’ for the purpose of Article 4(1)(a) of Regulation No 1408/71 and, in paragraph 36 of that judgment, that they were to be regarded as ‘cash benefits’ of sickness insurance as referred to inter alia in Article 19(1)(b) of that regulation (see also Jauch , paragraph 25).
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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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49. It is in that latter sense that the concept of neutrality is relevant in the present case. As is clear from the case‑law set out in paragraph 22 above, in the interpretation of the exemptions provided for under Article 13 of the Sixth Directive, the principle of fiscal neutrality must be applied alongside the principle that those exemptions must be interpreted strictly (see also, to that effect, Case C‑44/11 Deutsche Bank [2012] ECR, paragraph 45).
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45. Lastly, it must be stated that that conclusion is not called into question by the principle of fiscal neutrality. As the Advocate General stated at point 60 of her Opinion, that principle cannot extend the scope of an exemption in the absence of clear wording to that effect. That principle is not a rule of primary law which can condition the validity of an exemption, but a principle of interpretation, to be applied concurrently with the principle of strict interpretation of exemptions.
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68. However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its assessment (see, in particular, Vassallo , EU:C:2006:518, paragraph 39, and the order in Papalia , EU:C:2013:873, paragraph 31).
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61. However, while it is true that transposing a directive into national law does not require the provisions of the directive to be formally enacted in an express and specific legal provision, since the general legal context may be sufficient for its implementation, depending on its content (see, in particular, Case 29/84 Commission v Germany [1985] ECR 1661, paragraphs 22 and 23; Case C‑217/97 Commission v Germany [1999] ECR I‑5087, paragraphs 31 and 32; and Case C‑233/00 Commission v France [2003] ECR I‑6625, paragraph 76), it should be noted that by specifying in indent (a) of the first subparagraph of Article 4(2) of Directive 2003/4 that the protection of the confidentiality of public proceedings must be ‘provided for by law’, a condition which corresponds to the requirement laid down in Article 4(4) of the Aarhus Convention that the confidentiality of proceedings must be ‘provided for under national law’, the European Union legislature clearly wanted an express provision to exist in national law with a precisely defined scope, and not merely a general legal context.
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31 ON THAT POINT THE COURT ACCEPTS THE COMMISSION ' S ARGUMENT THAT REFERENCE TO PRINCIPLES OF LAW WHICH ARE AS GENERAL AS THOSE RELIED ON BY THE GERMAN GOVERNMENT IS NOT SUFFICIENT TO ESTABLISH THAT NATIONAL LAW FULLY GUARANTEES COMPLIANCE WITH PROVISIONS OF DIRECTIVES WHICH ARE OF SUCH A PRECISE AND DETAILED NATURE .
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27 Consequently, Article 48 does not apply to unemployment benefits of the kind at issue in the main proceedings and hence the taking into account by a Member State of periods of employment or insurance completed by the persons concerned under the legislation of another Member State for the purposes of the award of unemployment benefit is governed solely by Article 67 of Regulation No 1408/71, which is the subject of the second question.
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32. However, the Court has already held that, in so far as it applies solely to public contracts, such a national measure is not appropriate for achieving that objective if there is no information to suggest that employees working in the private sector are not in need of the same wage protection as those working in the context of public contracts (see, to that effect, the judgment in Rüffert , EU:C:2008:189, paragraphs 38 to 40).
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39. As stated at paragraph 29 of this judgment, since this case concerns the rate of pay fixed by a collective agreement such as that at issue in the main proceedings, that rate is applicable, as a result of a law such as the Landesvergabegesetz, only to a part of the construction sector falling within the geographical area of that agreement, since, first, that legislation applies solely to public contracts and not to private contracts and, second, that collective agreement has not been declared universally applicable.
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57. Finally, under Article 14(2) of Directive 2004/38, the right of the family members of a Union citizen to reside in the host Member State on the basis of Article 7(2) of the directive continues only as long as they meet the conditions laid down in that provision.
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53. In particular, as is clear from the actual wording of paragraph 33 of the judgment in Kadiman , the host Member State may subject the residence of the member of the family of the Turkish worker only to conditions intended to guarantee full compliance with the objective pursued by the first paragraph of Article 7 of Decision No 1/80, by ensuring that the person concerned does not reside in its territory in disregard of the spirit and purpose of that provision, as stated in paragraph 45 of the present judgment.
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33 With regard more particularly to the residence of a family member during that initial period of three years, at issue in the main proceedings, it must be pointed out that, although, as is apparent from paragraph 29 of this judgment, a Member State which has authorized a person to enter its territory in order to join a Turkish worker cannot then withhold from that person the right to reside there in order to enable the family to be together, that Member State nevertheless retains the power to subject that right of residence to conditions of such a kind as to ensure that the presence of the family member in its territory is in conformity with the spirit and purpose of the first paragraph of Article 7 of Decision No 1/80.
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63. However, as regards the present case, the General Court did not err in law because, in any event, the appellant has not sufficiently proved the acquisition, by the mark for which registration is sought, of distinctive character through use throughout the European Union.
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24. Thus, the General Court has exclusive jurisdiction to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to assess those facts. The establishment of those facts and the evaluation of that evidence do not, save where they are distorted, constitute a point of law which is subject as such to review by the Court of Justice (see, in particular, Case C-449/99 P EIB v Hautem [2001] ECR I-6733, paragraph 44, and Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, paragraphs 69 and 70).
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69. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first, to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and to review the legal conclusions it has drawn from them (see, in particular, Baustahlgewebe v Commission , paragraph 23, and Case C-551/03 P General Motors v Commission [2006] ECR I‑0000, paragraph 51).
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45 THIS NEED IS FULLY SATISFIED WHEN THE EXCLUSION OF NATIONALS IS LIMITED TO THOSE ACTIVITIES WHICH, TAKEN ON THEIR OWN, CONSTITUTE A DIRECT AND SPECIFIC CONNEXION WITH THE EXERCISE OF OFFICIAL AUTHORITY .
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24. S’agissant du principe d’autosuffisance, la Commission fait valoir que les tentatives de la République italienne de déplacer le débat de l’échelle régionale à l’échelle nationale sont inutiles puisque cette question a déjà été clarifiée dans l’arrêt Commission/Italie (C‑297/08, EU:C:2010:115, points 61 à 69), selon lequel, compte tenu du choix de la République italienne de procéder à une gestion des déchets à l’échelle régionale, les régions doivent se doter, dans une mesure et pour une durée significative, d’infrastructures suffisantes pour couvrir leurs besoins en termes d’élimination des déchets. Si chaque région comptait sur la coopération des autres régions et sur celle de l’ensemble du système national d’élimination des déchets, le risque de crise de ce système s’accroîtrait.
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67. It follows that, as the Commission observed, where a Member State has specially opted, as part of one or more of its ‘waste management plans’ within the meaning of Article 7(1) of Directive 2006/12, to organise the equipping of its territory on a regional basis, it should be inferred from this that each region with a regional plan must, as a rule, ensure the treatment and disposal of its waste as close as possible to the place where it is produced. The principle that environmental damage should, as a matter of priority, be remedied at source – laid down in Article 191 TFEU as a basis for Community action in relation to the environment – entails that it is for each region, municipality or other local authority to take appropriate steps to ensure that its own waste is collected, treated and disposed of and that that waste must accordingly be disposed of as close as possible to the place where it is produced, in order to limit as far as possible the transportation of waste (see Case C‑155/91 Commission v Council [1993] ECR I‑939, paragraph 13 and the case-law cited).
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98. Secondly, those measures have and/or have had the effect of freezing the structures on the national market and protecting the position of the operators already active on that market.
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35. According to the case-law of the Court, the status of ‘dependent’ family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national who has exercised his right of free movement or by his spouse (see, in relation to Article 10 of Regulation No 1612/68 and Article 1 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26), Lebon , paragraph 22, and Case C‑200/02 Zhu and Chen [2004] ECR I‑9925, paragraph 43, respectively).
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22 ARTICLE 10 ( 1 ) AND ( 2 ) OF REGULATION NO 1612/68 MUST BE INTERPRETED AS MEANING THAT THE STATUS OF DEPENDENT MEMBER OF A WORKER' S FAMILY IS THE RESULT OF A FACTUAL SITUATION . THE PERSON HAVING THAT STATUS IS A MEMBER OF THE FAMILY WHO IS SUPPORTED BY THE WORKER AND THERE IS NO NEED TO DETERMINE THE REASONS FOR RECOURSE TO THE WORKER' S SUPPORT OR TO RAISE THE QUESTION WHETHER THE PERSON CONCERNED IS ABLE TO SUPPORT HIMSELF BY TAKING UP PAID EMPLOYMENT .
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65. However, the Commission’s claims concerning the reasoning of the General Court set out in paragraphs 100 to 111 of that judgment have, in any event, no relevance to the operative part of that judgment, and must therefore be regarded as ineffective (see to that effect, in particular, Joined Cases C‑302/99 P and C‑308/99 P Commission and France v TF1 [2001] ECR I‑5603, paragraphs 27 to 29).
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32. Therefore, since the riding gloves at issue in the main proceedings consists of different materials and there is no specific tariff heading under which they may be classified, the only provision applicable to the classification of those gloves is general rule 3(b) (see, to that effect, Case 253/87 Sportex [1988] ECR 3351, paragraph 7, and Case C‑250/05 Turbon International [2006] ECR I-10531, paragraph 20).
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20. Since the product at issue is composed of different materials and neither of the two subheadings mentioned above is more specific than the other, the sole provision to which recourse may be had for the purpose of classifying the goods is general rule 3(b) (see, to that effect, Case 253/87 Sportex [1988] ECR 3351, paragraph 7).
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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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180. In the first place, the contested decision showed the reasoning followed by the Commission in a way which subsequently allowed a party such as Impala to challenge its validity before the competent Court. It would be unreasonable in that regard to require, as did the Court of First Instance in paragraph 289 of the judgment under appeal, a detailed description of each of the factors underpinning the contested decision, such as the nature of campaign discounts, the circumstances in which they might be applied, their degree of opacity, their size or their specific impact on price transparency (see to that effect, by way of analogy, Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraphs 59 to 61, and Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I-0000, paragraph 108). That is all the more the case because Impala was, as is apparent in particular from paragraphs 7 and 10 of the judgment under appeal, closely associated with the formal proceedings (see, by way of analogy, Case C-120/99 Italy v Council [2001] ECR I-7997, paragraph 29, and Case C-304/01 Spain v Commission [2004] ECR I-7655, paragraph 50) and that it was, in addition, perfectly able to challenge the validity of the Commission’s substantive appraisal in the contested decision before the Court of First Instance.
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108. As regards the economic and accounting concepts used by the Commission, the nature of costs examined and the components of the financial calculations undertaken, these undeniably concern complex technical appraisals. Since the contested decision clearly disclosed the Commission’s reasoning, enabling the substance of that decision to be challenged subsequently before the competent court, it would be excessive to require a specific statement of reasons for each of the technical choices or each of the figures on which that reasoning is based (see, by analogy, in respect of measures of general application, in particular, Joined Cases C‑154/04 and C‑155/04 Alliance for Natural Health and Others [2005] ECR I‑6451, paragraph 134).
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92. Il convient de relever, par ailleurs, que, conformément à la jurisprudence de la Cour (voir, notamment, arrêt du 8 mars 1988, Apple and Pear Development Council, 102/86, Rec. p. 1443, point 12), la notion de «prestation de services effectuée à titre onéreux», au sens de l’article 2, point 1, de la sixième directive, suppose l’existence d’un lien direct entre le service rendu et la contre-valeur reçue.
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40. The Court has repeatedly held that, in order to ensure, as far as possible, that the rights and obligations which derive from the Brussels Convention for the Contracting States and the persons to whom it applies are equal and uniform, the terms of the provision should not be interpreted as a mere reference to the internal law of one or other of the States concerned. ‘Civil and commercial matters’ must be regarded as an independent concept to be interpreted by referring, first, to the objectives and scheme of the Brussels Convention and, second, to the general principles which stem from the corpus of the national legal systems (see Case C‑292/05 Lechouritou and Others [2007] ECR I‑0000, paragraph 29 and the case‑law cited).
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29. It is to be remembered that, in order to ensure, as far as possible, that the rights and obligations which derive from the Brussels Convention for the Contracting States and the persons to whom it applies are equal and uniform, the terms of that provision should not be interpreted as a mere reference to the internal law of one or other of the States concerned. It is thus clear from the Court’s settled case-law that ‘civil and commercial matters’ must be regarded as an independent concept to be interpreted by referring, first, to the objectives and scheme of the Brussels Convention and, second, to the general principles which stem from the corpus of the national legal systems (see, inter alia, Case 29/76 LTU [1976] ECR 1541, paragraphs 3 and 5; Case 814/79 Rüffer [1980] ECR 3807, paragraph 7; Case C‑271/00 Baten [2002] ECR I-10489, paragraph 28; Case C-266/01 Préservatrice foncière TIARD [2003] ECR I-4867, paragraph 20; and Case C-343/04 ČEZ [2006] ECR I-4557, paragraph 22).
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57. However, those two exceptions were justified solely by the particularities of the agreements that led to their application.
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9AS TO THE SECOND QUESTION , IN ITS AFORESAID JUDGMENT OF 16 MARCH 1978 IN CASE 117/77 THE COURT HELD THAT , ' ' THE DUTY LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 22 ( 2 ) TO GRANT THE AUTHORIZATION REQUIRED UNDER ARTICLE 22 ( 1 ) ( C ) COVERS BOTH CASES WHERE THE TREATMENT PROVIDED IN ANOTHER MEMBER STATE IS MORE EFFECTIVE THAN THAT WHICH THE PERSON CONCERNED CAN RECEIVE IN THE MEMBER STATE WHERE HE RESIDES AND THOSE IN WHICH THE TREATMENT IN QUESTION CANNOT BE PROVIDED ON THE TERRITORY OF THE LATTER STATE ' ' .
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25FURTHERMORE , REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ) P . 159 ) STATES IN ARTICLE 93 ( 1 ) THAT THE AMOUNT OF BENEFITS PROVIDED UNDER ARTICLE 22 OF THE REGULATION ' ' SHALL BE REFUNDED BY THE COMPETENT INSTITUTION TO THE INSTITUTION WHICH PROVIDED THE SAID BENEFITS AS SHOWN IN THE ACCOUNTS OF THAT INSTITUTION ' ' .
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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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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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56. Il s’ensuit que, en ce qui concerne le paiement de l’amende, le rapport de solidarité qui existe entre deux sociétés constituant une telle entité économique ne saurait se réduire à une forme de caution fournie par la société mère pour garantir le paiement de l’amende infligée à la filiale.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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36 However, while language requirements of the kind laid down by the national legislation at issue in the main proceedings are not technical regulations within the meaning of Directive 83/189, they do constitute a barrier to intra-Community trade in so far as products coming from other Member States have to be given different labelling involving additional packaging costs (see, to that effect, Case C-51/93 Meyhui v Schott Zwiesel Glaswerke [1994] ECR I-3879, paragraph 13).
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13 However, the prohibition on affixing to crystal glass products in categories 3 and 4 of Annex I to Directive 69/493 their description in a language other than the language or languages of the Member State in which those goods are marketed constitutes a barrier to intra-Community trade in so far as products coming from other Member States have to be given different labelling causing additional packaging costs.
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64. The finding in the preceding paragraph is confirmed by the second subparagraph of Article 23(2) of Regulation No 1/2003 which requires, as regards the 10% upper limit, that it should be calculated on the basis of the turnover in the business year preceding the Commission decision imposing a penalty for an infringement. Such a requirement is fully respected where, as in this case, that ceiling is determined solely on the basis of the turnover of the subsidiary, in respect of the fine which is imposed exclusively on it, in relation to the period prior to its acquisition by the parent company, which the appellants do not dispute in this appeal. It follows that, in such circumstances, the structural changes in the undertaking responsible as an economic entity are in fact taken into account in the calculation of the fine.
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13 The Court has also held that a rule of national law preventing the procedure laid down in Article 177 of the Treaty from being followed must be set aside (see the judgment in Case 166/73 Rheinmuehlen v Einfuhr-und Vorratsstelle fuer Getreide und Futtermittel [1974] ECR 33, paragraphs 2 and 3).
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2 ARTICLE 177 IS ESSENTIAL FOR THE PRESERVATION OF THE COMMUNITY CHARACTER OF THE LAW ESTABLISHED BY THE TREATY AND HAS THE OBJECT OF ENSURING THAT IN ALL CIRCUMSTANCES THIS LAW IS THE SAME IN ALL STATES OF THE COMMUNITY .
WHILST IT THUS AIMS TO AVOID DIVERGENCES IN THE INTERPRETATION OF COMMUNITY LAW WHICH THE NATIONAL COURTS HAVE TO APPLY, IT LIKEWISE TENDS TO ENSURE THIS APPLICATION BY MAKING AVAILABLE TO THE NATIONAL JUDGE A MEANS OF ELIMINATING DIFFICULTIES WHICH MAY BE OCCASIONED BY THE REQUIREMENT OF GIVING COMMUNITY LAW ITS FULL EFFECT WITHIN THE FRAMEWORK OF THE JUDICIAL SYSTEMS OF THE MEMBER STATES .
CONSEQUENTLY ANY GAP IN THE SYSTEM SO ORGANIZED COULD UNDERMINE THE EFFECTIVENESS OF THE PROVISIONS OF THE TREATY AND OF THE SECONDARY COMMUNITY LAW .
THE PROVISIONS OF ARTICLE 177, WHICH ENABLE EVERY NATIONAL COURT OR TRIBUNAL WITHOUT DISTINCTION TO REFER A CASE TO THE COURT FOR A PRELIMINARY RULING WHEN IT CONSIDERS THAT A DECISION ON THE QUESTION IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT, MUST BE SEEN IN THIS LIGHT .
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28. In this regard it must be noted that it is clear from the actual wording of note 1(a) to Chapter 30 of the CN that dietetic foods or beverages, other than nutritional preparations for intravenous administration, which, without being part of the daily diet, are nevertheless used purely for feeding purposes are excluded from that chapter.
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18 Furthermore, in the judgment in Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 51, the Court held that a system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators. The Court concluded from this (in paragraph 52) that maintaining effective competition and securing transparency required the drawing-up of technical specifications, monitoring their application and granting type-approval to be carried out by a body independent of public or private undertakings offering competing goods and/or services in the telecommunications sector (see also the judgment in Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 26).
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51 It should be observed that a system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators. To entrust an undertaking which markets terminal equipment with the task of drawing up the specifications for such equipment, monitoring their application and granting type-approval in respect thereof is tantamount to conferring upon it the power to determine at will which terminal equipment may be connected to the public network, and thereby placing that undertaking at an obvious advantage over its competitors.
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38
Thus, the mechanism consisting, on the one hand, in an exemption, by the Member State of departure, of the supply giving rise to the intra-Community dispatch or transport, together with a right to deduction or reimbursement of the input VAT paid in that Member State and, on the other hand, in the taxation, by the Member State of arrival, of the intra-Community acquisition, was intended to ensure a clear demarcation of the sovereignty of the Member States in matters of taxation (judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 23 and case-law cited).
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27. In interpreting a provision of Community law, it is appropriate to consider its wording as well as the context in which it occurs and the objectives of the rules of which it forms part (see Case C-223/98 Adidas [1999] ECR I-7081, paragraph 23, and Case C-191/99 Kvaerner [2001] ECR I-4447, paragraph 30).
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23 It should be recalled, at the outset, that according to the settled case-law of the Court, 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 is part (see, inter alia, the judgments in Case 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12; and in Case 337/82 St. Nikolaus Brennerei v Hauptzollamt Krefeld [1984] ECR 1051, paragraph 10).
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21FOR THIS PURPOSE IT PROVIDES FOR THE ABOLITION OF ALL DIFFERENCES IN TREATMENT BETWEEN NATIONAL WORKERS AND WORKERS WHO ARE NATIONALS OF THE OTHER MEMBER STATES AS REGARDS CONDITIONS OF EMPLOYMENT , WORK AND REMUNERATION AND GIVES WORKERS WHO ARE NATIONALS OF THE OTHER MEMBER STATES AND MEMBERS OF THEIR FAMILY ACCESS TO THE SOCIAL AND TAX ADVANTAGES FROM WHICH NATIONAL WORKERS BENEFIT IN THE STATE OF EMPLOYMENT .
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86 It follows that, as the Court has also stated in relation to Regulation No 1408/71 in Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 36, and Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 21, a person has the status of worker where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme, irrespective of the existence of an employment relationship.
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36 So a person has the status of employed person within the meaning of Regulation No 1408/71 where he is covered, even if only in respect of a single risk, compulsorily or on an optional basis, by a general or special social security scheme mentioned in Article 1(a) of Regulation No 1408/71, irrespective of the existence of an employment relationship (see, on this point, Case 182/78 Pierik II [1979] ECR 1977, paragraphs 4 and 7, and Joined Cases 82/86 and 103/86 Laborero and Sabato [1987] ECR 3401, paragraph 17).
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28. The fact that the national legislation upon which those tax penalties and criminal proceedings are founded has not been adopted to transpose Directive 2006/112 cannot call that conclusion into question, since its application is designed to penalise an infringement of that directive and is therefore intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union.
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45. It is clear from Article 130r of the EC Treaty (now, after amendment, Article 174 EC) that the protection of human health is one of the objectives of the Community policy on the environment, that that policy aims at a high level of protection and is to be based inter alia on the precautionary principle, and that the requirements of that policy must be integrated into the definition and implementation of other Community policies. In addition, it follows from the case-law of the Court that the precautionary principle may also apply in policy on the protection of human health which, according to Article 129 of the EC Treaty (now, after amendment, Article 152 EC) likewise aims at a high level of protection (see, to that effect, Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, paragraphs 63 and 64; Case C-236/01 Monsanto Agricoltura Italia and Others [2003] ECR I-8105, paragraphs 128 and 133; Commission v Denmark , paragraph 49; and Commission v France , paragraph 56; see also, to that effect, Case T-13/99 Pfizer Animal Health v Council [2002] ECR II-3305, paragraphs 139 and 140; Case T-70/99 Alpharma v Council [2002] ECR II-3495, paragraphs 152 and 153; and Case T-177/02 Malagutti-Vezinhet v Commission [2004] ECR II‑0000, paragraph 54).
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49. It is clear that such an assessment of the risk could reveal that scientific uncertainty persists as regards the existence or extent of real risks to human health. In such circumstances, it must be accepted that a Member State may, in accordance with the precautionary principle, take protective measures without having to wait until the reality and seriousness of those risks are fully demonstrated (see, to that effect, Case C-157/96 National Farmers ' Union and Others [1998] ECR I-2211, paragraph 63). However, the risk assessment cannot be based on purely hypothetical considerations (see, to that effect, EFTA Surveillance Authority v Norway , paragraph 29, and Case C-236/01 Monsanto Agricoltura Italia and Others [2003] ECR I-8105, paragraph 106).
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18 In determining whether a contract of guarantee securing performance of a credit agreement by the principal debtor can fall within the scope of Directive 85/577, it should be noted that, apart from the exceptions listed in Article 3(2), the scope of the directive is not limited according to the nature of the goods or services to be supplied under a contract; the only requirement is that the goods or services must be intended for private consumption. The grant of a credit facility is indeed the provision of a service, the contract of guarantee being merely ancillary to the principal contract, of which in practice it is usually a precondition.
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41
The aim of that principle is to ensure a procedural balance between the parties to judicial proceedings, guaranteeing the equality of rights and obligations of those parties as regards, inter alia, the rules that govern the bringing of evidence and the adversarial hearing before the court (see, to that effect, judgment of 6 November 2012 in Otis and Others, C‑199/11, EU:C:2012:684, paragraphs 71 and 72) and also those parties’ rights to bring an action (judgment of 17 July 2014 in Sánchez Morcillo and Abril García, C‑169/14, EU:C:2014:2099, paragraphs 44, 48 and 49).
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71. The principle of equality of arms, which is a corollary of the very concept of a fair hearing (Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others v API and Commission [2010] ECR I‑8533, paragraph 88), implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.
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83
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
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25. Il y a lieu de relever, ensuite, que, si le droit de se prévaloir du principe de protection de la confiance légitime s’étend à tout justiciable dans le chef duquel une institution de l’Union européenne a fait naître des espérances fondées du fait d’assurances précises qu’elle lui aurait fournies, nul ne peut en revanche se prévaloir d’une violation de ce principe en l’absence d’assurances précises que lui aurait fournies une telle institution (voir, en ce sens, arrêt Grèce/Commission, C‑321/09 P, EU:C:2011:218, point 45 et jurisprudence citée).
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45. Il y a lieu de rappeler, à cet égard, que le droit de se prévaloir du principe de protection de la confiance légitime s’étend à tout justiciable dans le chef duquel une institution de l’Union européenne a fait naître des espérances fondées du fait d’assurances précises qu’elle lui aurait fournies (voir, en ce sens, arrêts du 25 octobre 2007, Komninou e.a./Commission, C‑167/06 P, point 63, ainsi que du 17 septembre 2009, Commission/Koninklijke FrieslandCampina, C‑519/07 P, Rec. p. I‑8495, point 84). En revanche, nul ne peut se prévaloir d’une violation de ce principe en l’absence d’assurances précises que lui aurait fournies une institution de l’Union (voir, notamment, arrêt du 22 juin 2006, Belgique et Forum 187/Commission, C‑182/03 et C‑217/03, Rec. p. I‑5479, point 147).
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110. The answer to the first question must therefore be that Article 48 of the Treaty precludes rules such as those at issue in the main proceedings ─ irrespective of whether or not they are laid down in a convention for the avoidance of double taxation ─ whereby a taxpayer forfeits, in the calculation of the income tax payable by him in his State of residence, part of the tax-free amount of that income and of his personal tax advantages because, during the year in question, he also received income in another Member State which was taxed in that State without his personal and family circumstances being taken into account.
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33. In such circumstances, the question referred must be declared inadmissible to the extent that it seeks an interpretation of the EU competition rules (see, by analogy, inter alia, Duomo Gpa and Others , paragraph 24, and Joined Cases C‑162/12 and C‑163/12 Airport Shuttle Express and Others [2014] ECR, paragraphs 37 to 42).
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40. In such circumstances, the questions referred must be declared inadmissible to the extent that they seek an interpretation of those provisions (see, by analogy, inter alia, Duomo Gpa and Others , paragraph 24).
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28 FOR THE RETENTION OF SUCH MEASURES , ARTICLE 27 ( 5 ) LAYS DOWN THE PROCEDURAL REQUIREMENT THAT MEMBER STATES MUST NOTIFY THEM TO THE COMMISSION . THAT REQUIREMENT WAS DULY SATISFIED BY THE KINGDOM OF BELGIUM .
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29. The Court has consistently held that, for national tax legislation to be capable of being regarded as compatible with the provisions of the FEU Treaty on the free movement of capital, the difference in treatment must concern situations which are not objectively comparable or it must be justified by an overriding reason in the public interest (Case C‑35/98 Verkooijen [2000] ECR I‑4071, paragraph 43; Case C‑319/02 Manninen [2004] ECR I‑7477, paragraph 29; Case C‑512/03 Blanckaert [2005] ECR I‑7685, paragraph 42; and Case C-182/08 Glaxo Wellcome [2009] ECR I-8591, paragraph 68).
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29. A distinction must therefore be made between unequal treatment which is permitted under Article 58(1)(a) EC and arbitrary discrimination which is prohibited by Article 58(3). In that respect, the case-law shows that, for national tax legislation like that at issue, which, in relation to a fully taxable person in the Member State concerned makes a distinction between revenue from national dividends and that from foreign dividends, to be capable of being regarded as compatible with the Treaty provisions on the free movement of capital, the difference in treatment must concern situations which are not objectively comparable or be justified by overriding reasons in the general interest, such as the need to safeguard the coherence of the tax system ( Verkooijen , paragraph 43). In order to be justified, moreover, the difference in treatment between different categories of dividends must not go beyond what is necessary in order to attain the objective of the legislation.
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67. À cet égard, il convient de rappeler que, selon une jurisprudence constante, la motivation de l’arrêt attaqué doit faire apparaître de façon claire et non équivoque le raisonnement du Tribunal, de manière à permettre aux intéressés de connaître les justifications de la décision prise et à la Cour d’exercer son contrôle juridictionnel (voir arrêt Deutsche Telekom/Commission, C‑280/08 P, EU:C:2010:603, point 136 et jurisprudence citée).
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35. In this respect, it is common ground that a tax such as that described by the national tribunal is not a general tax, since it is not intended to attach to all economic transactions in the Member State concerned (see, to that effect, Solisnor-Estaleiros Navais , paragraph 17, and Case C-208/91 Beaulande [1992] ECR I-6709, paragraph 16). IPT applies only to a specific service, the supply of insurance, since it is charged at the standard rate on the receipt of premiums in connection with contracts of insurance and at the higher rate solely on insurance premiums relating to motor cars, domestic appliances and travel where, in the case of the latter two sectors, the insurance contract possesses certain characteristics.
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16 First, stamp duty of the kind described by the national court is not a general tax since it relates only to real estate sold for valuable consideration, the conveyance of which gives rise to certain formalities. Such duty is not therefore intended to apply to all economic transactions in the Member State concerned.
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91 It is clear from paragraph 88 of Belgium v Commission, cited above, that the Commission, while it considers the method used by Belgian authorities to be undesirable, did not regard it as infringing Community law and did not take it into account in connection with the financial corrections made in Decision 97/333. The same is true for the contested Decision, which is based on the same grounds as Decision 97/333.
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93. It should be noted at the outset 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 (judgment in Rosselle , C‑65/14, EU:C:2015:339, paragraph 43 and the case-law cited).
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43. According to the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments in Merck , 292/82, EU:C:1983:335, paragraph 12; in TNT Express Nederland , C‑533/08, EU:C:2010:243, paragraph 44; and in Utopia , C‑40/14, EU:C:2014:2389, paragraph 27).
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50. En second lieu, il résulte de la jurisprudence de la Cour que le requérant peut également conserver un intérêt à demander l’annulation d’un acte d’une institution communautaire pour permettre d’éviter que l’illégalité dont celui-ci est prétendument entaché ne se reproduise à l’avenir (voir, en ce sens, arrêts du 6 mars 1979, Simmenthal/Commission, 92/78, Rec. p. 777, point 32; AKZO Chemie/Commission, précité, point 21, et Apesco/Commission, précité, point 16).
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71. In that context, it must also be made clear that the national court has no jurisdiction to determine the compatibility of State aid measures or of a State aid scheme with the common market. That assessment falls within the exclusive competence of the Commission of the European Communities, subject to review by the Community judicature (see Case C-354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon [1991] ECR I-5505, paragraph 14; Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 42; and Case C-295/97 Piaggio [1999] ECR I-3735, paragraph 31).
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42 In drawing the appropriate conclusions from an infringement of the last sentence of Article 93(3), national courts cannot rule on the compatibility of the aid with the common market, that determination being a matter for the Commission, subject to review by the Court of Justice (see Case C-354/90 FNCE, cited above, paragraph 14).
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36 The file and the pleadings show that the crucial point is whether Protocol No 2 is intended only to clarify the limitation of the effects in time of the Barber judgment, as set out above, or whether it has wider scope.
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35 Furthermore, as the Court has ruled in connection with Article 92(1) of the EC Treaty, the expression `aid', for the purposes of Article 4(c) of the ECSC Treaty, necessarily implies advantages granted directly or indirectly through State resources or constituting an additional charge for the State or for bodies designated or established by the State for that purpose (see Case 82/77 Openbaar Ministerie of the Netherlands v Van Tiggele [1978] ECR 25, paragraphs 23 to 25; Joined Cases 213/81 to 215/81 Norddeutsches Vieh- und Fleischkontor Will and Others v BALM [1982] ECR 3583, paragraph 22; Joined Cases C-72/91 and C-73/91 Sloman Neptun v Bodo Ziesemer [1993] ECR I-887, paragraphs 19 and 21; Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185, paragraph 16; and Joined Cases C-52/97 to C-54/97 Viscido and Others v Ente Poste Italiane [1998] ECR I-2629, paragraph 13).
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20 Therefore it is necessary to determine whether or not the advantages arising from a system such as that applicable to the ISR are to be viewed as being granted through State resources.
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12 THE PROVISIONS OF ARTICLE 9 ARE COMPLEMENTARY TO THOSE OF ARTICLE 8 . THEIR OBJECT IS TO ENSURE A MINIMUM PROCEDURAL SAFEGUARD FOR PERSONS AFFECTED BY ONE OF THE MEASURES REFERRED TO IN THE THREE CASES SET OUT IN PARAGRAPH ( 1 ) OF THAT ARTICLE . WHERE THE RIGHT OF APPEAL RELATES ONLY TO THE LEGAL VALIDITY OF A DECISION , THE PURPOSE OF THE INTERVENTION OF THE ' ' COMPETENT AUTHORITY ' ' REFERRED TO IN ARTICLE 9 ( 1 ) IS TO ENABLE AN EXHAUSTIVE EXAMINATION OF ALL THE FACTS AND CIRCUMSTANCES INCLUDING THE EXPEDIENCY OF THE PROPOSED MEASURE TO BE CARRIED OUT BEFORE THE DECISION IS FINALLY TAKEN . FURTHERMORE THE PERSON CONCERNED MUST BE ABLE TO EXERCISE BEFORE THAT AUTHORITY SUCH RIGHTS OF DEFENCE AND OF ASSISTANCE OR REPRESENTATION AS THE DOMESTIC LAW OF THAT COUNTRY PROVIDES FOR .
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20 Under Article 2(2) of the Directive, Member States may exclude from the scope of the Directive occupational activities for which, by reason of their nature or the context in which they are carried out, sex constitutes a determining factor; it must be noted, however, that, as a derogation from an individual right laid down in the Directive, that provision must be interpreted strictly (Johnston, paragraph 36, and Sirdar, paragraph 23).
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26 A CET EGARD , IL Y A LIEU DE CONSTATER QUE LE TRAITE NE PREVOIT DES DEROGATIONS APPLICABLES EN CAS DE SITUATIONS SUSCEPTIBLES DE METTRE EN CAUSE LA SECURITE PUBLIQUE QUE DANS SES ARTICLES 36 , 48 , 56 , 223 ET 224 QUI CONCERNENT DES HYPOTHESES EXCEPTIONNELLES BIEN DELIMITEES . EN RAISON DE LEUR CARACTERE LIMITE , CES ARTICLES NE SE PRETENT PAS A UNE INTERPRETATION EXTENSIVE ET NE PERMETTENT PAS D ' EN DEDUIRE UNE RESERVE GENERALE , INHERENTE AU TRAITE , POUR TOUTES MESURES PRISES AU TITRE DE LA SECURITE PUBLIQUE . RECONNAITRE UNE RESERVE GENERALE A TOUTE DISPOSITION DU DROIT COMMUNAUTAIRE , EN DEHORS DES CONDITIONS SPECIFIQUES DES DISPOSITIONS DU TRAITE , RISQUERAIT DE PORTER ATTEINTE AU CARACTERE CONTRAIGNANT ET A L ' APPLICATION UNIFORME DU DROIT COMMUNAUTAIRE .
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30 The Court held that those three cases must be taken into account in relation both to measures referred to in Article 9(1) of the Directive and to those mentioned in Article 9(2) thereof (Shingara and Radiom, paragraph 37).
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93. Finally, with regard to whether the presumption of actual exercise of decisive influence is compatible with the principles of the right to a fair hearing and the presumption of innocence, the Court has already held that that presumption is proportionate to the aim pursued and, therefore, remains within acceptable limits, since it is intended, in particular, to strike a balance between, on the one hand, the importance of the objective of combatting conduct contrary to the competition rules, in particular to Article 81 EC, and of preventing a repetition of such conduct and, on the other hand, the requirements flowing from certain general principles of European Union law, such as the principle of the presumption of innocence, the principle that penalties should be applied solely to the offender and the principle of legal certainty, as well as the rights of the defence, including the principle of equality of arms. It is for that reason in particular that the presumption is rebuttable (see, to that effect, ENI v Commission , paragraph 50, and Case C‑501/11 P Schindler Holding and Others v Commission [2013] ECR, paragraphs 107 and 108).
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108. The presumption that decisive influence is exercised over a subsidiary wholly or almost wholly owned by its parent company is intended, in particular, to strike a balance between, on the one hand, the importance of the objective of combatting conduct contrary to the competition rules, in particular to Article 81 EC, and of preventing a repetition of such conduct and, on the other hand, the requirements flowing from certain general principles of European Union law such as the principle of the presumption of innocence, the principle that penalties should be applied solely to the offender and the principle of legal certainty as well as the rights of the defence, including the principle of equality of arms ( Elf Aquitaine v Commission , paragraph 59). It follows that such a presumption is proportionate to the legitimate aim pursued.
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28 HENCE THE RELEVANT SUBSTANTIAL PART OF THE COMMON MARKET IN THIS CASE IS THE NETHERLANDS AND IT IS AT THE LEVEL OF THE NETHERLANDS MARKET THAT MICHELIN NV ' S POSITION MUST BE ASSESSED .
( 2 ) ASSESSMENT OF MICHELIN NV ' S POSITION IN RELATION TO ITS COMPETITORS
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21. While, under Article 80(2) EC, sea and air transport are, in so far as the Community legislature has not decided otherwise, not subject to the rules contained in Title V of Part Three of the EC Treaty relating to the common transport policy, they remain, on the same basis as the other modes of transport, subject to the general rules of the Treaty (Case 167/73 Commission v France [1974] ECR 359, paragraph 32, and Joined Cases 209/84 to 213/84 Asjes and Others [1986] ECR 1425, paragraph 45).
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32 WHILST UNDER ARTICLE 84 ( 2 ), THEREFORE, SEA AND AIR TRANSPORT, SO LONG AS THE COUNCIL HAS NOT DECIDED OTHERWISE, IS EXCLUDED FROM THE RULES OF TITLE IV OF PART TWO OF THE TREATY RELATING TO THE COMMON TRANSPORT POLICY, IT REMAINS, ON THE SAME BASIS AS THE OTHER MODES OF TRANSPORT, SUBJECT TO THE GENERAL RULES OF THE TREATY .
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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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27. There is nothing, however, in the wording of the judgment in Zino Davidoff and Levi Strauss which gives grounds for concluding that the statements made by the Court in paragraph 46 of that judgment, concerning the facts and circumstances from which the implied consent of a trade mark proprietor may be inferred, are applicable only in a factual context such as that and cannot have general application.
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46 Such intention will normally be gathered from an express statement of consent. Nevertheless, it is conceivable that consent may, in some cases, be inferred from facts and circumstances prior to, simultaneous with or subsequent to the placing of the goods on the market outside the EEA which, in the view of the national court, unequivocally demonstrate that the proprietor has renounced his rights.
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50. It is settled case-law that the fact that the number of undertakings able to claim entitlement under a measure is very large, or that they belong to different sectors of activity, is not sufficient to call into question the selective nature of that measure and, therefore, to rule out its classification as State aid (Case C‑75/97 Belgium v Commission [1999] ECR I‑3671, paragraph 32; Case C‑143/99 Adria‑Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2011] ECR I‑8365, paragraph 48; and Case C‑409/00 Spain v Commission [2003] ECR I‑1487, paragraph 48). Where the measure in question is governed by objective criteria of horizontal application, that fact too does not call into question its selective character, since it can serve only to show that the aid at issue falls within an aid scheme and is not individual aid (see, to that effect, Spain v Commission , paragraph 49).
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22. That condition is given effect to in, inter alia, Articles 3 and 12 of that directive. While Article 3 thereof specifies the circumstances in which a trade mark is incapable, ab initio , of fulfilling its function as an indication of origin, Article 12(2)(a) of the directive relates to the situation where the trade mark has become the common name and has therefore lost its distinctive character, with the result that it no longer fulfils that function (see, to that effect, Björnekulla Fruktindustrier , paragraph 22). The rights conferred on the proprietor of that mark under Article 5 of Directive 2008/95 may then be revoked (see, to that effect, Case C‑145/05 Levi Strauss [2006] ECR I‑3703, paragraph 33).
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33. Accordingly, where a trade mark has lost its distinctive character in consequence of acts or inactivity of the proprietor so that it has become a common name within the meaning of Article 12(2) of Directive 89/104, its proprietor can no longer assert the rights conferred on him under Article 5 of that directive.
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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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111. Further, as stated in paragraph 101 of this judgment, the application, in the judgment under appeal, of the same reduction for the benefit of Dimon was entirely consistent with the methodology followed by the Commission in the contested decision, and consequently there is no basis for the Commission’s claim that it was not foreseeable (see, to that effect, Groupe Danone v Commission , paragraph 82).
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82. Thus, in the exercise of its unlimited jurisdiction, the Court of First Instance relied exclusively on the provisions of the Guidelines and applied no other factors, circumstances or criteria which Groupe Danone could not foresee would be taken into account.
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22 The answer to the third question must therefore be that Article 11 A 3(b ) of the Sixth Directive must be interpreted as meaning that the expression "price discount and rebates allowed to the customer and accounted for at the time of the supply" covers the difference between the normal retail selling price of the goods supplied and the sum of money actually received by the retailer for those goods where the retailer accepts from the customer a coupon which he gave to the customer upon a previous purchase made at the normal retail selling price .
The other questions
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34. On the other hand, and inasmuch as the ‘assets of the company’ are defined as all the property which the members have contributed, together with any increase in its value (see, to that effect, Case C-38/88 Siegen [1990] ECR I-1447, paragraph 12), the ‘increase in the assets’ within the meaning of Article 4(2)(b) of Dire ctive 69/335 includes, in principle, every kind of increase in the net assets of a capital company ( Senior Engineering Investments , paragraph 34). Thus, the Court has classified as an ‘increase in the assets’ within the meaning of that provision, for example, a transfer of profits (see Case C-49/91 Weber Haus [1992] ECR I-5207, paragraph 10), an interest-free loan (see, in particular, Case C-392/00 Norddeutsche Gesellschaft zur Beratung und Durchführung von Entsorgungsaufgaben bei Kernkraftwerken [2002] ECR I-7397, paragraph 18), an absorption of losses (see Siegen , paragraph 13), and the waiver of a claim (Case C-15/89 Deltakabel [1991] ECR I-241, paragraph 12).
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10 A profit transfer in favour of a capital company, if it increases the assets of that company and is likely to increase the value of its shares, constitutes a service which may be subject to capital duty, if it is a service provided by a member.
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36. Consequently, it follows from the requirements inherent in the protection of the rights of individuals relying on Community law that they must have the possibility of obtaining redress in the national courts for the damage caused by the infringement of those rights owing to a decision of a court adjudicating at last instance (see in that connection Brasserie du Pêcheur and Factortame, cited above, paragraph 35).
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122. However, in order for the difference in treatment between nationally-sourced dividends and dividends from a non‑member State other than a State party to the EEA Agreement to be justified by an overriding reason in the public interest of this kind, the difference must be appropriate for attaining the objective invoked and must not go beyond what is necessary to attain it (see Case C‑250/95 Futura Participations and Singer [1997] ECR I‑2471, paragraph 26; Case C‑9/02 de Lasteyrie du Saillant [2004] ECR I‑2409, paragraph 49; and Marks & Spencer , paragraph 35).
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26 Consequently, the imposition of such a condition, which specifically affects companies or firms having their seat in another Member State, is in principle prohibited by Article 52 of the Treaty. It could only be otherwise if the measure pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interest. Even if that were so, it would still have to be of such a nature as to ensure achievement of the aim in question and not go beyond what was necessary for that purpose (see, to this effect, the judgments in Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37; in Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; and in Case C-415/93 Bosman [1995] ECR I-4921, paragraph 104).
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13. Ainsi, à la date d’expiration du délai fixé dans l’avis motivé, date à laquelle doit être appréciée l’existence d’un manquement (voir, en ce sens, arrêts du 14 septembre 2004, Commission/Espagne, C‑168/03, Rec. p. I‑8227, point 24, et du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9), le rapport de synthèse requis en vertu de l’article 15, paragraphe 2, de la directive n’avait pas été présenté et les analyses ainsi que l’étude visées à l’article 5, paragraphe 1 de cette directive n’avaient pas été effectuées en ce qui concerne le district hydrographique pilote du Serchio et une portion des districts hydrographiques des Alpes orientales, et du Nord, du Centre et du Sud des Apennins.
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23. It follows from the case-law of the Court that, in the absence of provisions of Community law, disputes concerning the recovery of amounts wrongly paid under Community law must be decided by national courts in application of their own domestic law, subject to the limits imposed by Community law, on the basis that the rules and procedures laid down by domestic law must not have the effect of making it practically impossible or excessively difficult to recover the aid not due and that the national legislation must be applied in a manner which is not discriminatory as compared to procedures for deciding similar national disputes (Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others [1983] ECR 2633, paragraph 19, Case C‑366/95 Steff-Houlberg Export and Others [1998] ECR I‑2661, paragraph 15, and Case C‑336/00 Huber [2002] ECR I‑7699, paragraph 55).
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19 IN ACCORDANCE WITH THOSE PRINCIPLES THE COURT HAS REPEATEDLY HELD ( ON 5 MARCH 1980 IN CASE 265/78 H . FERWERDA BV V PRODUKTSCHAP VOOR VEE EN VLEES ( 1980 ) ECR 617 , ON 12 JUNE 1980 IN JOINED CASES 119 AND 126/79 LIPPISCHE HAUPTGENOSSENSCHAFT EG AND ANOTHER V BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( 1980 ) ECR 1863 AND ON 6 MAY 1982 IN CASE 54/81 FIRMA WILHELM FROMME V BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( 1982 ) ECR 1449 AND JOINED CASE 146 , 192 AND 193/81 BAYWA AG AND OTHERS V BUNDESANSTALT FUR LANDWIRTSCHAFTLICHE MARKTORDNUNG ( 1982 ) ECR 1503 ) THAT IN THE ABSENCE OF PROVISIONS OF COMMUNITY LAW DISPUTES CONCERNING THE RECOVERY OF AMOUNTS UNDULY PAID UNDER COMMUNITY LAW MUST BE DECIDED BY NATIONAL COURTS PURSUANT TO THEIR OWN NATIONAL LAW SUBJECT TO THE LIMITS IMPOSED BY COMMUNITY LAW INASMUCH AS THE RULES AND PROCEDURES LAID DOWN BY NATIONAL LAW MUST NOT HAVE THE EFFECT OF MAKING IT VIRTUALLY IMPOSSIBLE TO IMPLEMENT COMMUNITY REGULATIONS AND NATIONAL LEGISLATION MUST BE APPLIED IN A MANNER WHICH IS NOT DISCRIMINATORY COMPARED TO PROCEDURES FOR DECIDING SIMILAR BUT PURELY NATIONAL DISPUTES .
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64. It is clear from all the language versions of that latter provision that it was indeed the allocation of unused reference quantities which was to be carried out ‘in proportion to the reference quantities of each producer’ and that the contribution of producers to the payment of the levy due was, for its part, established by reference to the overrun of the reference quantity of each individual producer.
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26. It follows that prior authorisation within the meaning of Article 6(2) of Directive 2006/11 means that every request for authorisation for that purpose must be examined individually and cannot be tacit (see, with particular regard to Article 7 of Directive 76/464, Case C-230/00 Commission v Belgium [2001] ECR I-4591, paragraph 16).
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16 It follows from that case-law that tacit authorisation cannot be compatible with the requirements of the directives referred to in this action because they prescribe, in the case of Directives 75/442, 76/464, 80/68 and 84/360, systems of prior authorisation, and, in the case of Directive 85/337, assessment procedures preceding the grant of authorisation. The national authorities are therefore required under each of those directives to examine individually every request for authorisation.
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39 Nor has it been established that Sargenor and Dynamisan had clearly defined therapeutic or prophylactic characteristics with an effect concentrated on precise functions of the human organism or that they are capable of being applied in the prevention or treatment of specific diseases or ailments.
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39
In addition, it is clear from recital 11 of Decision 2011/278 that, where no data were available or the data collected did not comply with the benchmarking methodology, information on present levels of emissions and consumptions and on most efficient techniques, mainly derived from the Reference Documents on Best Available Techniques (BREF) established in accordance with Directive 2008/1 was used to derive benchmark values. In particular, due to a lack of data on the treatment of waste gases, heat exports and electricity production, the values for the product benchmarks for coke and hot metal were derived from calculations of direct and indirect emissions based on information on relevant energy flows provided by the relevant BREF and default emission factors set out in Decision 2007/589 (judgment of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 47).
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47
In addition, it is clear from recital 11 of Decision 2011/278 that, where no data were available or the data collected did not comply with the benchmarking methodology, information on present levels of emissions and consumptions and on most efficient techniques, mainly derived from the Reference Documents on Best Available Techniques (BREF) established in accordance with Directive 2008/1 was used to derive benchmark values. In particular, due to a lack of data on the treatment of waste gases, heat exports and electricity production, the values for the product benchmarks for coke and hot metal were derived from calculations of direct and indirect emissions based on information on relevant energy flows provided by the relevant BREF and default emission factors set out in Decision 2007/589.
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52. In that respect, the Court has held that that effect must not, moreover, be insignificant (see inter alia, to that effect, judgments in Béguelin Import , 22/71, EU:C:1971:113, paragraph 16; Manfredi and Others , C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 42; and Erste Group Bank and Others v Commission , C‑125/07 P, C‑133/07 P and C‑137/07 P, EU:C:2009:576, paragraph 36 and the case-law cited).
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43. A sign representing the shape of a product falls among the signs which may constitute a trade mark provided that it is capable of being represented graphically and capable of distinguishing the products or services of one undertaking from those of other undertakings. That follows, so far as Community trade marks are concerned, from Article 4 of Regulation No 40/94 (see, to that effect, Joined Cases C‑456/01 P and C‑457/01 P Henkel v OHIM [2004] ECR I‑5089, paragraphs 30 and 31, and Lego Juris v OHIM , paragraph 39).
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30. Under Article 4 of Regulation No 40/94 a Community trade mark may consist of any signs capable of being represented graphically, provided that such signs are capable of distinguishing the products or services of one undertaking from those of other undertakings.
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101. As to the content of the programmes that must be drawn up, it is true that, as follows from paragraph 88 of the present judgment, the Member States have wide flexibility in selecting the specific initiatives to be implemented, whilst it is also true that they are not obliged to adopt policies and measures to ensure that ceilings are not exceeded before the end of 2010.
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66. That said, the Court’s interpretation of Regulation No 1408/71 in response to the first question submitted for a preliminary ruling must be understood without prejudice to the solution which flows from the potential applicability of provisions of primary law (see, by way of analogy, Acereda Herrera , cited above, paragraph 38). The finding that a national measure may be consistent with a provision of a secondary law measure, in this case Regulation No 1408/71, does not necessarily have the effect of removing that measure from the scope of the Treaty’s provisions (see, to that effect, Case C‑158/96 Kohll [1998] ECR I‑1931, paragraph 25, and Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 47). It follows that the applicability, as the case may be, of Articles 19 or 22 of Regulation No 1408/71 to a situation such as that at issue in the main proceedings does not of itself prevent the person concerned from claiming, pursuant to primary law, the payment of certain costs relating to care received in a care home situated in another Member State, under rules different to those provided for in those articles (see, by analogy, Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, paragraphs 37 to 53, along with Watts , cited above, paragraph 48).
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38 It must be determined first of all whether the situation at issue in the main proceedings falls within the scope of freedom to provide services within the meaning of Article 59 of the Treaty.
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7 It must first be observed, as the Court held in its judgment of 14 September 1982 in Case 144/81 Keurkoop v Nancy Kean Gifts (( 1982 )) ECR 2853 with respect to the protection of designs and models, that, as Community law stands at present and in the absence of Community standardization or harmonization of laws, the determination of the conditions and procedures under which protection of designs and models is granted is a matter for national rules . It is thus for the national legislature to determine which products are to benefit from protection, even where they form part of a unit which is already protected as such .
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100
It is clear from the case-law of the Court of Justice that Article H(2) of Annex II to Regulation No 1164/94, as amended, read in conjunction with Article 18(3) of Regulation No 1386/2002, provides that, in order to adopt a decision on financial corrections, the Commission is required to comply with a time limit of three months from the date of the hearing (see judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 95 and 102, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 95 and 102).
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102. Contrary to what the Commission has claimed, the fact that the relevant rules do not expressly provide that, in the event of non-compliance with the time-limit laid down for adopting a decision on financial corrections, the Commission may no longer adopt such a decision is irrelevant, since the setting of a time-limit within which a decision of that nature must be adopted is in itself sufficient.
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33
It should also be recalled that the Court has held that the purpose of the reference in Article 11(2) of Regulation No 44/2001 is to add injured parties to the list of plaintiffs contained in Article 9(1)(b) of that regulation, without restricting the category of persons having suffered damage to those suffering it directly (judgments of 13 December 2007, FBTO Schadeverzekeringen, C‑463/06, EU:C:2007:792, paragraph 26, and of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraph 27).
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27
In the second place, with regard to the argument that the General Court disregarded key evidence, it is necessary to point out that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment of 11 September 2014, Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council, C‑602/12 P, not published, EU:C:2014:2203, paragraph 37).
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37. By contrast, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, to that effect, judgment in Moser Baer India v Council , EU:C:2009:498, paragraph 32).
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41. Second, with regard to the interpretation of the terms ‘staying’ and ‘resident’, it should be pointed out that, contrary to the argument of the Czech and Netherlands Governments, the definition of those two terms cannot be left to the assessment of each Member State.
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40 A Member State may invoke reasons of public interest to justify a national measure which is likely to obstruct the exercise of the freedom to provide services only if that measure is compatible with the fundamental rights whose observance the Court ensures (see, to that effect, Case C-260/89 ERT [1991] ECR I-2925, paragraph 43, and Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 24).
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24 Furthermore, it is to be noted that where a Member State relies on overriding requirements to justify rules which are likely to obstruct the exercise of free movement of goods, such justification must also be interpreted in the light of the general principles of law and in particular of fundamental rights (see Case C-260/89 ERT [1991] ECR I-2925, paragraph 43).
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30. The requirement that the charging of a reduced rate must not give rise to any risk of distortion of competition will be considered in the context of the question concerning the procedure laid down by Article 12(3)(b) of the Sixth Directive.
The procedure laid down by Article 12(3)(b) of the Sixth Directive
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22
First, such rules must make provision for a procedure enabling economic operators to obtain the authorisation to market food supplements including nutrients in doses exceeding those authorised. The procedure must be one which is readily accessible and can be completed within a reasonable time, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts (see, to that effect, judgments of 5 February 2004, Commission v France, C‑24/00, EU:C:2004:70, paragraph 26; of 5 February 2004, Greenham and Abel, C‑95/01, EU:C:2004:71, paragraph 35, and of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 81).
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35. First, such rules must make provision for a procedure enabling economic operators to have a nutrient included on the national list of authorised substances. The procedure must be one which is readily accessible and can be completed within a reasonable time, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts (see to that effect Case C-344/90 Commission v France [1992] ECR I-4719, paragraph 9, and today ' s judgment in Case C-24/00 Commission v France [2004] ECR I-0000, paragraph 26).
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20. In that regard, it must be pointed out that the wording of Article 1(1) of Regulation No 1393/2007 makes it clear that that regulation is to apply in civil and commercial matters ‘where a judicial … document h as to be transmitted from one Member State to another for service there.’
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99. As a preliminary point, it must be recalled that, for the purposes of Article 87(3) EC, the Commission enjoys a wide margin of discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context. The Court, in reviewing whether that freedom was lawfully exercised, cannot substitute its own assessment for that of the competent authority but must restrict itself to examining whether the authority’s assessment is vitiated by a manifest error or misuse of powers (see, in particular, Case C-310/99 Italy v Commission , paragraph 45, Case C-456/00 France v Commission [2002] ECR I-11949, paragraph 41, and Case C-66/02 Italy v Commission , paragraph 135).
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41. In this connection it should be remembered, first, that the Commission, for the purposes of applying Article 87(3) EC, enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context (see, inter alia , Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 67, and Case C-310/99 Italy v Commission [2002] ECR I-2289, paragraph 45), and second, that the Court, in reviewing whether that freedom was lawfully exercised, cannot substitute its own assessment for that of the competent authority but must restrict itself to examining whether the authority's assessment is vitiated by a manifest error or misuse of powers (see Case C-288/96 Germany v Commission [2000] ECR I-8237, paragraph 26, and Italy v Commission , cited above, paragraph 46).
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39. The direct link between the supply of services and the consideration received also does not appear to be called into question by the fact that, as Saudaçor maintains, its activity is intended to fulfil a constitutional obligation exclusively and directly incumbent upon the State under the Portuguese constitution, namely the obligation to implement a national health service which is universal and potentially free, to be financed, in essence, by public resources.
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47
In the second place, Article 5(1) of Directive 2001/23 requires the bankruptcy proceedings or any analogous insolvency proceedings to be instituted with a view to liquidation of the assets of the transferor. In that regard it is clear, as follows from the case-law of the Court, that a procedure aimed at ensuring the continuation of the undertaking in question does not satisfy that requirement (see, to that effect, judgments of 25 July 1991, d’Urso and Others, C‑362/89, EU:C:1991:326, paragraphs 31 and 32, and of 7 December 1995, Spano and Others, C‑472/93, EU:C:1995:421, paragraph 25).
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25 As the Commission and the plaintiffs in the main proceedings maintain, it is clear from the case-law of the Court that the directive does not apply to transfers taking place in proceedings for the liquidation of the transferor' s assets, such as insolvency proceedings (see the judgment in Abels, cited above) or compulsory administrative liquidation under Italian Law (see the judgment in D' Urso), but it does apply to the transfer of an undertaking subject to a procedure aimed at ensuring the continuation of its business, such as the "surséance van betaling" procedure under Netherlands Law (judgment in Abels) or the special administration procedure under Italian Law in respect of large undertakings in critical difficulties, where it has been decided that the undertaking is to continue trading for so long as that decision remains in effect (see the judgment in D' Urso).
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44. Toutefois, la jurisprudence de l’Union qui porte sur des restrictions à l’exercice des libertés de circulation au sein de l’Union ne saurait être intégralement transposée aux libertés garanties par l’accord EEE, dès lors que l’exercice de ces dernières s’inscrit dans un contexte juridique différent (voir, en ce sens, arrêt du 19 juillet 2012, A, C‑48/11, non encore publié au Recueil, point 34).
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84. However, the mere fact that a company transfers its place of management to another Member State cannot set up a general presumption of tax evasion and justify a measure which compromises the exercise of a fundamental freedom guaranteed by the Treaty (see, to that effect, ICI , paragraph 26; Case C‑478/98 Commission v Belgium [2000] ECR I-7587, paragraph 45; Case C‑436/00 X and Y [2002] ECR I‑10829, paragraph 62; Case C‑334/02 Commission v France [2004] ECR I‑2229, paragraph 27; and Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 50).
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62 However, tax evasion or tax fraud cannot be inferred generally from the fact that the transferee company or its parent company is established in another Member State and cannot justify a fiscal measure which compromises the exercise of a fundamental freedom guaranteed by the Treaty (see, to that effect, Case C-478/98 Commission v Belgium [2000] ECR I-7587, paragraph 45).
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46
In that regard, it should be recalled that Article 8(1)(b) of Regulation No 207/2009 –– which is, in the absence of any provision to the contrary in Articles 67 to 74 of that regulation, applicable to EU collective marks pursuant to Article 66(3) of the regulation –– provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.
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22 The Court has ruled that, where a regulation which introduces an anti-dumping duty imposes different duties on a series of undertakings, an undertaking is individually concerned only by those provisions which impose on it a specific anti-dumping duty and determine the amount thereof, and not by those provisions which impose anti-dumping duties on other undertakings, with the result that an action brought by that undertaking will be admissible only in so far as it seeks the annulment of those provisions of the regulation that exclusively concern it (Case 240/84 Toyo v Council [1987] ECR 1809, paragraphs 6 and 7; Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, paragraphs 7 and 8; Case 256/84 Koyo Seiko v Council [1987] ECR 1899, paragraphs 6 and 7; and Case 258/84 Nippon Seiko v Council [1987] ECR 1923, paragraphs 7 and 8).
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6
HOWEVER, IT SHOULD BE NOTED THAT THE CONTESTED REGULATION DOES NOT LAY DOWN GENERAL RULES WHICH APPLY TO A WHOLE GROUP OF TRADERS WITHOUT DISTINGUISHING BETWEEN THEM BUT IMPOSES DIFFERENT ANTI-DUMPING DUTIES ON A SERIES OF MANUFACTURERS OR EXPORTERS OF SMALL BALL-BEARINGS ESTABLISHED IN JAPAN AND SINGAPORE WHO ARE EXPRESSLY NAMED, AND ALSO ON OTHER UNDERTAKINGS WHICH ARE NOT NAMED BUT WHICH PURSUE THE SAME ACTIVITIES IN THOSE SAME COUNTRIES . UNDER THOSE CIRCUMSTANCES IT MUST BE CONCLUDED THAT NTN IS INDIVIDUALLY CONCERNED ONLY BY THOSE PROVISIONS OF THE CONTESTED REGULATION WHICH IMPOSE ON IT A SPECIFIC ANTI-DUMPING DUTY AND DETERMINE THE AMOUNT THEREOF, AND NOT BY THOSE PROVISIONS WHICH IMPOSE ANTI-DUMPING DUTIES ON OTHER UNDERTAKINGS .
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52. However, the Court has accepted that national legislation may constitute a justified restriction on a fundamental freedom when it is dictated by reasons of an economic nature in the pursuit of an objective in the public interest (see, to that effect, Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraph 60 and the case-law cited).
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39 As the Advocate General has explained in point 37 of his Opinion, it follows from the case-law (see Joined Cases 9/77 and 10/77 Bavaria Fluggesellschaft and Germanair v Eurocontrol [1977] ECR 1517, paragraph 4, and Case 148/84 Deutsche Genossenschaftsbank v Brasserie du Pêcheur [1985] ECR 1981, paragraph 17), firstly, that the Convention established an enforcement procedure which constitutes an autonomous and complete system independent of the legal systems of the Contracting States and, secondly, that the principle of legal certainty in the Community legal system and the objectives of the Convention in accordance with Article 220 of the EEC Treaty, which is at its origin, require a uniform application in all Contracting States of the Convention rules and the relevant case-law of the Court.
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17 IN ORDER TO ATTAIN THAT OBJECTIVE THE CONVENTION ESTABLISHED AN ENFORCEMENT PROCEDURE WHICH CONSTITUTES AN AUTONOMOUS AND COMPLETE SYSTEM , INCLUDING THE MATTER OF APPEALS . IT FOLLOWS THAT ARTICLE 36 OF THE CONVENTION EXCLUDES PROCEDURES WHEREBY INTERESTED THIRD PARTIES MAY CHALLENGE AN ENFORCEMENT ORDER UNDER DOMESTIC LAW .
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41. Under those latter provisions, the Member State concerned is required to establish, in the light of current scientific and technical knowledge, that the product is effective and safe. That Member State is thus required to establish that there are no unacceptable or harmful effects on plants, on human or animal health, on groundwater or on the environment. In addition, that Member State must establish that the product does not cause unnecessary suffering and pain to vertebrates to be controlled.
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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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55. In those circumstances, in order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring a pharmaceutical laboratory such as Boiron to prove that wholesale distributors are overcompensated, and thus that the tax on direct sales amounts to State aid, is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which such a laboratory will not have, the national court 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.
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43. In view of the foregoing, the reply to the first and second questions must be that the first indent of Article 7(4)(a) of the Regulation is to be interpreted as meaning that the objections to a shipment of waste for recovery which the competent authorities of dispatch and of destination are empowered to raise may be based on considerations connected not only to the actual transport of the waste in each competent authority’s area of jurisdiction but also on the recovery planned for that shipment.
The third question
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21. However, in spite of the wording of the second recital in the preamble to Regulation No 392/2004, which states that it was necessary ‘to remove any possibility of misinterpretation’, that new formulation has no bearing on the content of Regulation No 2092/91. The adoption of a new version of Article 2 suggests the intention of the legislature to amend Regulation No 2092/91 and not to leave it unchanged. In the absence of such an intention, the adoption of the legislative amendment in question would not have been necessary (see Commission v Spain , cited above, paragraph 38).
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38. However, that amendment has no bearing on the previous legislative situation, in the light of which the present infringement proceedings must be assessed. The adoption of a new version of Article 2 of Regulation No 2092/91 suggests the intention of the legislature to amend that article and not to leave it unchanged. If there had been no such intention, the adoption of the legislative amendment in question would not have been necessary.
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37. With respect to the legitimate expectations of those concerned, such as Mr Sudholz, it must be pointed out that if the taxable person chooses to treat goods used both for business and private purposes as business goods, the VAT due as input tax on the acquisition of those goods is in principle wholly and immediately deductible (see, inter alia, Case C‑97/90 Lennartz [1991] ECR I-3795, paragraph 26, and Case C-269/00 Seeling [2003] ECR I-4101, paragraph 41). In the absence of any provision empowering the Member States to limit the right to deduct, that right must be exercised immediately in respect of all the taxes charged on transactions relating to inputs (see, inter alia, Lennartz , paragraph 27, and Case C‑37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 16).
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36 Within those limits, once the Council has laid down in its basic regulation the essential rules governing the matter in question, it may delegate to the Commission general implementing power without having to specify the essential components of the delegated power; for that purpose, a provision drafted in general terms provides a sufficient basis for the authority to act (Case C-240/90 Germany v Commission [1992] ECR I-5383, paragraph 41).
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41 That argument does not carry conviction either. It is clear from the aforementioned Koester judgment that since the Council has laid down in its basic regulation the essential rules governing the matter in question, it may delegate to the Commission general implementing power without having to specify the essential components of the delegated power; for that purpose, a provision drafted in general terms provides a sufficient basis for the authority to act.
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106. As stated in paragraphs 50 and 51 above, the objectives of the Flemish Decree relate to land planning and social housing.
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53. It follows that, as the Court has previously held, point 13 of the Guidelines on the method of setting fines 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 relative size of the undertaking’s contribution to it. Consequently, while the concept of the value of sales referred to in point 13 of those guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not fall within the scope of the alleged cartel, it would, however, be contrary to the goal pursued by that provision if that concept were to be understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (judgments in Team Relocations and Others v Commission , C‑444/11 P, EU:C:2013:464, paragraphs 76 and 88, and Guardian Industries and Guardian Europe v Commission , C‑580/12 P, EU:C:2014:2363, paragraph 57).
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57. It follows that point 13 of the 2006 Guidelines pursues the objective of adopting, as the starting point for the calculation of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it. Consequently, while the concept of the value of sales referred to in point 13 of those guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not fall within the scope of the alleged cartel, it would, however, be contrary to the goal pursued by that provision if that concept were to be understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel ( Team Relocations and Others v Commission , C‑444/11 P, EU:C:2013:464, paragraph 76).
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19. Any other interpretation would have the effect of allowing Member States to limit payment of compensation to third-party victims of a road-traffic accident to certain types of damage, thus bringing about disparities in the treatment of victims depending on where the accident occurred, which is precisely what the directives are intended to avoid. Article 3(1) of the First Directive would then be deprived of its effectiveness.
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39. In accordance with settled case-law, the rule of special jurisdiction laid down in Article 5(3) of that regulation is based on the existence of a particularly close linking factor between the dispute and the courts of the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (judgments in Melzer , C‑228/11, EU:C:2013:305, paragraph 26, and in Hi Hotel HCF , C‑387/12, EU:C:2014:215, paragraph 28).
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26. In that connection, according to settled case-law, the rule of special jurisdiction laid down in Article 5(3) of Regulation No 44/2001 is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (see, to that effect, Zuid‑Chemie , paragraph 24, and eDate Advertising and Others , paragraph 40).
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30. A different solution would call into question the principle of autonomy of actions, by making the procedure for an action for damages depend on the completion of an action for annulment. That solution can be applied to disputes arising from individual measures. In those cases, the period of limitation begins as soon as the decision has produced its effects vis-à-vis the persons concerned by it.
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107 It is clear from the above case-law that three conditions must be satisfied for a Member State to be required to compensate for damage thus caused: the rule of law infringed must have been intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties (Brasserie du Pêcheur and Factortame, paragraph 51; British Telecommunications, paragraph 39; Hedley Lomas, paragraph 25; and Dillenkofer and Others, paragraph 24, all cited above).
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25 In the case of a breach of Community law attributable to a Member State acting in a field in which it has a wide discretion to make legislative choices the Court has held, at paragraph 51 of its judgment in Brasserie du Pêcheur and Factortame, cited above, that such a right to reparation must be recognized where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.
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21. The concept of ‘reputation’ assumes a certain degree of knowledge amongst the relevant public.
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27
It accordingly follows from the Court’s case-law that, first, exceptions to that freedom must be interpreted strictly (see, to that effect, judgments of 21 June 1974, Reyners, 2/74, EU:C:1974:68, paragraphs 43 to 55, and of 1 February 2017, Commission v Hungary, C‑392/15, EU:C:2017:73, paragraph 106 and the case-law cited), second, while the provisions of the Treaty relating to that freedom are aimed at ensuring the benefit of national treatment in the host Member State, they also prohibit the Member State of origin from hindering the establishment in another Member State of one of its nationals or of a company incorporated in accordance with its legislation (judgments of 27 September 1988, Daily Mail and General Trust, 81/87, EU:C:1988:456, paragraph 16, and of 21 May 2015, Verder LabTec, C‑657/13, EU:C:2015:331, paragraph 33 and the case-law cited) and, third, the concept of establishment within the meaning of the Treaty is a very broad one, allowing an EU national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration within the European Union (see, to that effect, judgment of 30 November 1995, Gebhard, C‑55/94, EU:C:1995:411, paragraph 25).
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51 PROFESSIONAL ACTIVITIES INVOLVING CONTACTS, EVEN REGULAR AND ORGANIC, WITH THE COURTS, INCLUDING EVEN COMPULSORY COOPERATION IN THEIR FUNCTIONING, DO NOT CONSTITUTE, AS SUCH, CONNEXION WITH THE EXERCISE OF OFFICIAL AUTHORITY .
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97. Firstly, with respect to the argument that the disadvantage suffered by a taxpayer such as Mr de Groot in relation to the reduction of tax is to a large extent compensated for by a progressivity advantage, described by the Advocate General at the national court and referred to by the Belgian Government, it is sufficient to state that it is settled case-law that detrimental tax treatment contrary to a fundamental freedom cannot be justified by the existence of other tax advantages, even if those advantages exist (see, with respect to the freedom of establishment, Case 270/83 Commission v France [1986] ECR 273, paragraph 21, Case C-107/94 Asscher [1996] ECR I-3089, paragraph 53, and Saint-Gobain , paragraph 54; with respect to the freedom to provide services, Case C-294/97 Eurowings Luftverkehr [1999] ECR I-7447, paragraph 44; and, with respect to the free movement of capital, Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 61).
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24. In that regard, it should be remembered at the outset that, according to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667, paragraph 27; Case C-599/10 SAG ELV Slovensko and Others [2012] ECR, paragraph 15; and Case C-378/10 VALE Építési [2012] ECR, paragraph 18).
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18. For the purposes of the examination, respectively, of the admissibility of the reference for a preliminary ruling in its entirety, and of the third and fourth questions referred, the Court recalls the settled case-law pursuant to which questions on the interpretation of European Union law referred by a national court, in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667, paragraph 27 and the case-law cited).
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31. That link must therefore also be present where part of the consideration is obtained from a third party.
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33 Also, the Court has held on several occasions that the place of performance of the obligation in question is to be determined by the law governing that obligation according to the conflict rules of the court seised (Case 12/76 Tessili v Dunlop [1976] ECR 1473, paragraph 13, Case C-288/92 Custom Made Commercial v Stawa Metallbau [1994] ECR I-2913, paragraph 26, and Case C-440/97 Groupe Concorde and Others v The Master of the Vessel Suhadiwarno Panjan and Others [1999] ECR I-0000, paragraph 32).
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32 It follows from all of the foregoing considerations that, on a proper construction of Article 5(1) of the Brussels Convention, the place of performance of the obligation, within the meaning of that provision, is to be determined in accordance with the law governing the obligation in question according to the conflict rules of the court seised.
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44. As regards the objectives of Regulation No 1/2005, it must be pointed out that, although it is true that the elimination of technical barriers to trade in live animals and the smooth operation of market organisations, referred to in recital 2 in the preamble to that regulation, form part of the purpose of that regulation in the same way as they formed part of that of Directive 91/628, of which Regulation No 1/2005 constitutes the extension, it is, however, apparent from recitals 2, 6 and 11 in the preamble to that regulation that, like that directive, its main objective is the protection of animals during transport. In that regard, the finding in paragraph 29 of the judgment in Case C‑491/06 Danske Svineproducenter as regards the objectives of that directive therefore remains valid in respect of Regulation No 1/2005.
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39. That objective would be seriously frustrated if the Member States were entitled to derogate from the provisions of the directive by maintaining in force rules ─ even rules categorized as special or exceptional ─ under which it is possible to decide by administrative measure, separately from any decision by the general meeting of shareholders, to effect an increase in the company ' s capital (see the judgments in Joined Cases C-19/90 and C-20/90 Karella and Karellas [1991] ECR I-2691, paragraphs 25 and 26, and Case C-381/89 Syndesmos Melon tis Eleftheras Evangelikis Ekklisias and Others [1992] ECR I-2111, paragraphs 32 and 33).
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32 According to that judgment, that directive seeks, in accordance with Article 54(3)(g) of the Treaty, to coordinate the safeguards required in the Member States in relation to companies, within the meaning of the last paragraph of Article 58 of that Treaty, in order to make such guarantees equivalent and to protect the interests of members and third parties. Consequently, the aim of the Second Directive is to provide a minimum level of protection for shareholders in all the Member States.
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30 Although, at first sight, the average consumer - reasonably well informed and reasonably observant and circumspect - ought not to expect a cream whose name incorporates the term `lifting' to produce enduring effects, it nevertheless remains for the national court to determine, in the light of all the relevant factors, whether that is the position in this case.
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48. It must, however, be pointed out that that line of argument has been dismissed by the Court not only, as those governments claim, as regards the calculation of transfer duties payable in respect of the gift of an immovable property ( Mattner , paragraphs 35 to 38) but also as regards the calculation of inheritance tax payable in respect of such a property ( Jäger , paragraph 44; Eckelkamp and Others , paragraphs 61 to 63; and Arens-Sikken , paragraphs 55 to 57).
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56. The Netherlands legislation deems, in principle, both the heirs of resident persons and the heirs of persons who were non-resident at the time of death to be taxable persons for the purposes of collecting inheritance and/or transfer duties on immovable properties situated in the Netherlands. It is only in respect of the deduction of overendowment debts resulting from a testamentary parental partition inter vivos that the inheritances of residents and non-residents are treated differently.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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41. It must be pointed out, however, that Regulation No 1408/71 does not set up a common scheme of social security, but allows different national social security schemes to exist and its sole objective is to ensure the coordination of those schemes (Case 21/87 Borowitz [1988] ECR 3715, paragraph 23, and Case C‑331/06 Chuck [2008] ECR I‑0000, paragraph 27).
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23 The problem raised having been defined in this way, it must be noted that, as the Court has stated on many occasions ( see for example judgment of 12 July 1979 in Case 266/78 Brunori v Landesversicherungsanstalt Rheinprovinz (( 1979 )) ECR 2705; judgment of 12 June 1980 in Case 733/79 Caisse de Compensation des allocations familiales des régions de Charleroi et de Namur v Laterza (( 1980 )) ECR 1915; and judgment of 9 July 1980 in Case 807/79 Gravina v Landesversicherungsanstalt Schwaben (( 1980 )) ECR 2205 ), Regulation No 1408/71 does not set up a common scheme of social security but allows different national schemes to exist and its sole objective is to coordinate those national schemes .
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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19. In that regard, it is clear from the case-law that the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of its Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Cases C‑284/06 Burda [2008] ECR I‑4571, paragraph 37 and the case-law cited, and Case C‑266/09 Stichting Natuur en Milieu and Others [2010] ECR I‑0000, paragraph 27).
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27. It should be recalled that the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, inter alia, Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633, paragraph 31 and the case-law cited).
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29. Il ressort d’une jurisprudence constante de la Cour que l’État membre destinataire d’une décision l’obligeant à récupérer des aides illégales est tenu, en vertu de l’article 249 CE, de prendre toutes les mesures propres à assurer l’exécution de cette décision (arrêt du 5 octobre 2006, Commission/France, C‑232/05, Rec. p. I‑10071, point 42 et jurisprudence citée).
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22 In order to fall within the scope of Regulation No 1408/71, legislation must in particular cover one of the risks expressly specified in Article 4(1) of that regulation. That list is exhaustive, so that a branch of social security not mentioned does not fall within that category even if it confers upon individuals a legally defined position entitling them to benefits (see in particular Hoeckx, paragraph 12, and Scrivner, paragraph 19).
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19 ALTHOUGH IT IS POSSIBLE THAT BECAUSE OF THE CLASSES OF PERSONS TO WHICH THEY APPLY , THEIR OBJECTIVES AND THE DETAILED RULES FOR THEIR APPLICATION , CERTAIN LAWS MAY SIMULTANEOUSLY CONTAIN ELEMENTS BELONGING TO BOTH OF THE CATEGORIES MENTIONED AND THUS DEFY ANY GENERAL CLASSIFICATION , IT MUST BE STATED THAT IN ORDER TO FALL WITHIN THE FIELD OF SOCIAL SECURITY COVERED BY REGULATION NO 1408/71 THE LEGISLATION AT ISSUE MUST IN ANY EVENT SATISFY , IN PARTICULAR , THE CONDITION OF COVERING ONE OF THE RISKS SPECIFIED IN ARTICLE 4 ( 1 ) OF THE REGULATION . IT FOLLOWS THAT THE LIST OF RISKS CONTAINED IN THAT PARAGRAPH IS EXHAUSTIVE AND THAT , AS A RESULT , A BRANCH OF SOCIAL SECURITY NOT MENTIONED IN THE LIST DOES NOT FALL WITHIN THAT CATEGORY EVEN IF IT CONFERS UPON INDIVIDUALS A LEGALLY DEFINED POSITION ENTITLING THEM TO BENEFITS .
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23 In the second place, as regards the criterion of training, it is not be excluded that it may work to the disadvantage of women in so far as they have had less opportunity than men for training or have taken less advantage of such opportunity . Nevertheless, in view of the considerations set out in the aforementioned judgment of 13 May 1986 the employer may justify remuneration of special training by showing that it is of importance for the performance of specific tasks entrusted to the employee .
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82. Thus, the Court has held that if a national law merely encourages or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC (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 73, and CIF , paragraph 56).
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36 IT IS ADVISABLE TO EXAMINE FIRST OF ALL WHAT EFFECT THE ITALIAN RULES AND OTHER MEASURES ADOPTED BY THE ITALIAN AUTHORITIES HAVE ON THE EVALUATION OF THIS DISPUTE .
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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36. However, it follows from Article 225 EC and the first paragraph of Article 51 of the EC Statute of the Court of Justice that the latter is not competent to find the facts or, as a rule, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 24). That appraisal does not therefore 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 (Cases C-24/01 P and C-25/01 P Glencore and Compagnie Continentale v Commission [2002] ECR I-10119, paragraph 65).
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24 The Court of Justice thus has no jurisdiction to find the facts or, as a rule, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (see, in particular, the order in San Marco v Commission, cited above, paragraph 40). That appraisal does not therefore 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 (Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42).
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48. However, the latter analysis is not valid as regards consumption residues which cannot be regarded as ‘by-products’ of a manufacturing or extraction process which are capable of being reused as an integral part of the production process.
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37. However, it is also clear from the case-law of the Court that, in certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process, the primary aim of which is not their production, may be regarded not as residue, but as by‑products which their holder does not seek to ‘discard’, within the meaning of Article 1(a) of the directive, but which he intends to exploit or market on terms advantageous to himself in a subsequent process – including, as the case may be, in order to meet the needs of economic operators other than the producer of those substances – provided that such re-use is a certainty, does not require any further processing prior to re-use and forms an integral part of the process of production or use (see, to that effect, Palin Granit , paragraphs 34 to 36; Case C‑114/01, AvestaPolarit Chrome [2003] ECR I‑8725, paragraphs 33 to 38; Niselli , paragraph 47; and also Case C‑416/02 Commission v Spain [2005] ECR I‑7487, paragraphs 87 and 90, and Case C‑121/03 Commission v Spain [2005] ECR I‑7569, paragraphs 58 and 61).
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34 One counter-argument to challenge that analysis is that goods, materials or raw materials resulting from a manufacturing or extraction process, the primary aim of which is not the production of that item, may be regarded not as a residue but as a by-product which the undertaking does not wish to `discard', within the meaning of the first paragraph of Article 1(a) of Directive 75/442, but intends to exploit or market on terms which are advantageous to it, in a subsequent process, without any further processing prior to reuse.
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99. However, the specific features of the ENSP entrance examination do not allow for account to be taken of specific qualifications in the field of hospital management since, in the logic of the French recruitment system at issue in the main proceedings, the candidate is clearly not yet supposed to have such qualifications. The examination is intended to select between candidates who, by definition, are not yet trained to carry out that managerial role.
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33. Contractual terms falling within the concept of ‘the main subject-matter of the contract’, within the meaning of Article 4(2) of Directive 93/13, must be understood as being those that lay down the essential obligations of the contract and, as such, characterise it (see, to that effect, judgments in Caja de Ahorros y Monte de Piedad de Madrid , C‑484/08, EU:C:2010:309, paragraph 34, and Kásler et Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 49). By contrast, terms ancillary to those that define the very essence of the contractual relationship cannot fall within the concept of ‘the main subject-matter of the contract’, within the meaning of that provision (judgments in Kásler et Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 50, and Matei , C‑143/13, EU:C:2015:127, paragraph 54).
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49. However, taking account also of the fact that Article 4(2) of Directive 93/13 represents a derogation and the ensuing necessity of its being interpreted strictly, contractual terms falling within the notion of the ‘main subject-matter of the contract’, within the meaning of that provision, must be understood as being those that lay down the essential obligations of the contract and, as such, characterise it.
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20. It is common ground that a benefit such as interim assistance, which forms part of the benefits awarded to employees in the event of dismissal, comes within the substantive scope of the provisions cited in the preceding paragraph and that a frontier worker in Mr Merida’s situation may rely on those provisions in regard to such a benefit (see, in that connection, Case C-35/97 Commission v France [1998] ECR I-5325, paragraphs 36, 40 and 41).
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49
According to settled case-law, the appropriate assessment of the implications for the site that must be carried out pursuant to Article 6(3) implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field (see, to that effect, judgments in Commission v France, C‑241/08, EU:C:2010:114, paragraph 69; Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 99, and Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraphs 112 and 113).
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113. With regard to the factors on the basis of which the competent authorities may gain the necessary level of certainty, the Court has stated that it must be ensured that no reasonable scientific doubt remains, and those authorities must rely on the best scientific knowledge in the field (see Waddenvereniging and Vogelbeschermingsvereniging , paragraphs 59 and 61, and Commission v Italy , paragraph 59).
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103. It should be noted, first of all, that the Italian Republic does not dispute that, when the deadline set in the reasoned opinion expired, the waste littering the public roads totalled 55 000 tonnes, adding to the 110 000 tonnes to 120 000 tonnes of waste awaiting treatment at municipal storage sites. In any event, that information emerges from the memorandum of the Commissario delegato of 2 March 2008, appended to the reply of the Italian Republic to the reasoned opinion. Furthermore, according to the statements made by the Italian Republic, the local inhabitants, exasperated by such accumulation, have taken the initiative of igniting fires in the piles of refuse, which is harmful both for the environment and for their own health.
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40. Moreover, it should be noted that, according to the Court’s case-law, first, the mere fact that contracting authorities allow bodies which receive subsidies enabling them to submit tenders at prices appreciably lower than those of competing, unsubsidised, tenderers to take part in a procedure for the award of a public contract does not amount to a breach of the principle of equal treatment and, second, if the Community legislature had intended to require contracting authorities to exclude such tenderers, it would have stated this explicitly ( ARGE, paragraphs 25 and 26).
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26 If the Community legislature had intended to require contracting authorities to exclude such tenderers, it would have stated this explicitly.
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71
However, the imposition of such a supplementary requirement to identify a particular category of undertakings, additional to the analytical method applicable to selectivity in tax matters that may be deduced from the Court’s settled case-law, which essentially involves ascertaining whether the exclusion of certain operators from the benefit of a tax advantage that arises from a measure derogating from an ordinary tax system constitutes discrimination with respect to those operators, cannot be inferred from the Court’s case-law and, in particular, from the judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732).
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64. It is true that calculation, when applying the imputation method, of a tax credit on the basis of the nominal rate of tax to which the profits underlying the dividends paid have been subject may still lead to a less favourable tax treatment of foreign-sourced dividends, as a result in particular of the existence in the Member States of different rules relating to determination of the basis of assessment for corporation tax. However, it must be held that, when unfavourable treatment of that kind arises, it results from the exercise in parallel by different Member States of their fiscal sovereignty, which is compatible with the Treaty (see, to this effect, Kerckhaert and Morres , paragraph 20, and Case C‑96/08 CIBA [2010] ECR I‑2911, paragraph 25).
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20. In circumstances such as those of the present case, the adverse consequences which might arise from the application of an income tax system such as the Belgian system at issue in the main proceedings result from the exercise in parallel by two Member States of their fiscal sovereignty.
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18 In the same judgment (paragraph 12) the Court made it clear that the general prohibition of discrimination on grounds of nationality laid down in Article 7 of the Treaty has been implemented by Article 52 of the Treaty in the specific domain governed by that article and that, consequently, any rules incompatible with the latter provision are also incompatible with Article 7 of the Treaty.
Article 52 of the Treaty
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21
In that regard, a preliminary point to note is that this question does not concern the rules relating to the assessment of evidence and the requisite standard of proof which, in the absence of EU rules on the matter, are covered, in principle, by the procedural autonomy of the Member States (see judgment of 21 January 2016 in Eturas and Others, C‑74/14, EU:C:2016:42, paragraphs 29 to 37). Rather, it concerns the constituent elements of the infringement that must be present if an undertaking is to be found liable for a concerted practice.
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37
Consequently, the principle of effectiveness requires that an infringement of EU competition law may be proven not only by direct evidence, but also through indicia, provided that they are objective and consistent.
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34. It follows from the above considerations that the cross-appeal must be dismissed as inadmissible.
The main appeals
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73. Such a procedure must be accessible in the sense that it must be expressly mentioned in a measure of general application which is binding on the authorities concerned. It must be capable of being completed within a reasonable time. An application to have a substance included on a list of authorised substances may be refused by the competent authorities only on the basis of a full assessment of the risk posed to public health by the substance, established on the basis of the most reliable scientific data available and the most recent results of international research. If the procedure results in a refusal, the refusal must be open to challenge before the courts (see, by analogy, Case C‑24/00 Commission v France [2004] ECR I‑1277, paragraphs 26, 27 and 36, and Case C‑95/01 Greenham and Abel [2004] ECR I‑1333, paragraphs 35, 36 and 50).
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27. Secondly, an application to obtain the inclusion of a nutrient on the national list of authorised substances may be refused by the competent national authorities only if such substance poses a genuine risk to public health (see Commission v Denmark , paragraph 46).
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13 It therefore follows from the context of the provision in question and from the purpose of the rules of which it forms a part that effective monitoring requires the driver to produce such a sheet for the last driving day of the last week in which he drove prior to the inspection, particularly in order that compliance with the compulsory weekly rest period can be checked. If the driver was not driving in the week prior to that in which the inspection took place, or if he was not driving on the last calendar day or the last working day of the last week in which he was driving, the objectives of the rules in question do not require him to produce the record sheet for those respective periods.
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65. Indeed, in the case leading to that judgment, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside and a refusal to grant such a person a work permit have such an effect. The Court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union (see Ruiz Zambrano , paragraphs 43 and 44).
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43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
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53. However, Article 9 of the Aarhus Convention and Article 10a of Directive 85/337 would lose all effectiveness if the mere fact that a project is adopted by a legislative act which does not fulfil the conditions set out in paragraph 37 of the present judgment were to make it immune to any review procedure for challenging its substantive or procedural legality within the meaning of those provisions.
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49
With particular regard to Article 4(1) of Directive 90/435, that provision provides that, where a parent company, by virtue of its association with its subsidiary, receives distributed profits, the Member State of the parent company is required either to refrain from taxing such profits or to authorise the parent company to deduct from the amount of tax payable that fraction of the corporation tax paid by the subsidiary which relates to those profits and, if appropriate, the amount of the withholding tax levied by the Member State in which the subsidiary is resident, up to the limit of the amount of the corresponding domestic tax (judgments of 12 December 2006, Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 102; of 3 April 2008, Banque Fédérative du Crédit Mutuel, C‑27/07, EU:C:2008:195, paragraph 25, and of 8 March 2017, Wereldhave Belgium and Others, C‑448/15, EU:C:2017:180, paragraph 37).
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37
Thus, first, Article 4(1) of Directive 90/435 provides that, where a parent company receives, by virtue of its association with its subsidiary, distributed profits, the Member State of the parent company is either to refrain from taxing such profits, or to authorise the parent company to deduct from the amount of tax payable that fraction of the corporation tax paid by the subsidiary which relates to those profits and, if appropriate, the amount of the withholding tax levied by the Member State in which the subsidiary is resident, up to the limit of the amount of the corresponding domestic tax (judgments of 12 December 2006, Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 102, and of 3 April 2008, Banque Fédérative du Crédit Mutuel, C‑27/07, EU:C:2008:195, paragraph 25).
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53. As regards the freedom to provide services, it is settled case-law that, first, the activity of operating gaming machines must, irrespective of whether or not it is separable from activities relating to the manufacture, importation and distribution of such machines, be considered a service within the meaning of the Treaty provisions and, secondly, national legislation which only authorises the operation and playing of games in casinos constitutes a barrier to the freedom to provide services (see, to that effect, Case C-6/01 Anomar and Others [2003] ECR I-8621, paragraphs 56 and 75).
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24. It is thus not disputed that, for a measure to be classified as State aid for the purposes of Article 107(1) TFEU, 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; and fourth, it must distort or threaten to distort competition (judgment in Trapeza Eurobank Ergasias , C‑690/13, EU:C:2015:235, paragraph 17 and the case-law cited).
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17. It is settled case-law that, for a measure, as State aid, to come within Article 87(1) EC, 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, on the assumption that all those conditions must be cumulatively fulfilled (see, inter alia, judgment in Commission v Deutsche Post , C‑399/08 P, EU:C:2010:481, paragraphs 38 and 39 and the case-law cited).
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113. Such measures presuppose, in particular, that the risk assessment available to the national authorities provides specific evidence which, without precluding scientific uncertainty, makes it possible reasonably to conclude on the basis of the most reliable scientific evidence available and the most recent results of international research that the implementation of those measures is necessary in order to avoid novel foods which pose potential risks to human health being offered on the market.
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30. The Court has interpreted this passage as intended by the legislature, namely as meaning that the exercise by a person having the care of children, and, in particular, by the spouse of the person entitled in pursuance of Article 73 of Regulation No 1408/71, of a professional or trade activity in the Member State of residence of the children suspends, under Article 10 of Regulation No 574/72, the right to allowances in pursuance of Article 73 of Regulation No 1408/71 up to the amount of the allowances of the same kind actually paid by the Member State of residence, irrespective of who is designated as directly entitled to the family allowances by the legislation of the Member State of residence ( McMenamin , paragraphs 20 to 27).
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20 That phrase was inserted by Council Regulation No 1660/85 which entered into force on 20 June 1985. The former wording provided for the suspension of allowances due in pursuance of Article 73 of Regulation No 1408/71 from the State of employment only if the spouse exercised a professional or trade activity in the State of residence of the children.
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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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31. It should be noted at the outset that the term ‘the centre of a debtor’s main interests’, within the meaning of Article 3(1) of the Regulation, is a concept that is peculiar to the Regulation, thus having an autonomous meaning, and must therefore be interpreted in a uniform way, independently of national legislation ( Eurofood IFSC , paragraph 31, and Interedil , paragraph 43). While the Regulation does not define that concept, guidance as to its scope is, nevertheless, to be found in recital 13 in the preamble to the Regulation, which states that ‘the “centre of main interests” should correspond to the place where the debtor conducts the administration of his interests on a regular basis and [which] is therefore ascertainable by third parties’ ( Eurofood IFSC , paragraph 32, and Interedil , paragraph 47).
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32. The scope of that concept is highlighted by the 13th recital of the Regulation, which states that ‘the ‘centre of main interests’ should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties’.
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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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70. According to settled case-law, compliance with the principle of equal treatment, or of non-discrimination, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C-44/94 Fishermen’s Organisations and Others [1995] ECR I-3115, paragraph 46; Case C-304/01 Spain v Commission [2004] ECR I-7655, paragraph 31; Case C-141/05 Spain v Council [2007] ECR I-9485, paragraph 40; and Case C-442/04 Spain v Council [2008] ECR I-3517, paragraph 35).
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35. Compliance with the principle of non-discrimination, as laid down in Article 34(2) EC, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C‑44/94 Fishermen’s Organisations and Others [1995] ECR I‑3115, paragraph 46; Case C‑304/01 Spain v Commission [2004] ECR I‑7655, paragraph 31; and Case C‑141/05 Spain v Council [2007] ECR I‑0000, paragraph 40).
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41 En ce qui concerne les dispositions du règlement n_ 3665/87 relatives à la force majeure, il est de jurisprudence constante que, la notion de force majeure n'ayant pas un contenu identique dans les divers domaines d'application du droit communautaire, sa signification doit être déterminée en fonction du cadre légal dans lequel elle est destinée à produire ses effets (voir, notamment, arrêt du 7 décembre 1993, Huygen e.a., C-12/92, Rec. p. I-6381, point 30). Le règlement n_ 3665/87 n'est donc pas contraire aux principes généraux du droit communautaire en ce qu'il précise et limite les effets de la force majeure en matière de restitutions à l'exportation.
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11 As may be seen from the Court' s consistent case-law (see, most recently, the judgment in Case C-326/88 Hansen [1990] ECR I-2911, at paragraph 17), when a Community regulation does not provide any specific penalty in case of breach but refers on this matter to national provisions, the Member States retain a discretion as to the choice of penalties. However, under Article 5 of the EEC Treaty, which requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law, they must ensure that infringements of a Community regulation are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.
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17 Furthermore, it should be borne in mind that, according to the consistent case-law of the Court, as confirmed by its judgment in Case 68/88 Commission v Greece [1989] ECR 2965, where a Community regulation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the EEC Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law . For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive .
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82. Accordingly, the essential question when reviewing whether to continue to include a person on the list at issue is whether, since that person was included in that list or since the last review, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion in relation to the involvement of the person at issue in terrorist activities.
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23. While Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must nevertheless be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (see, inter alia, Case C‑33/07 Jipa [2008] ECR I‑5157, paragraph 23; C‑430/10 Gaydarov [2011] ECR I‑11637, paragraph 32; and Case C‑434/10 Aladzhov [2011] ECR I‑11659, paragraph 34).
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32. Lastly, it is clear from settled case‑law that, while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, the fact still remains that, in the European Union context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (see, inter alia, Jipa , paragraph 23).
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20 It is therefore necessary to consider whether the reasoning is to be extended to activities linked in any way at all to dealing in drugs.
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La Cour a jugé que, s’il est vrai que l’article 13 de la directive 2008/98 ne précise pas le contenu concret des mesures qui doivent être prises pour s’assurer que les déchets soient éliminés sans mettre en danger la santé de l’homme et sans porter préjudice à l’environnement, il n’en reste pas moins que cet article lie les États membres quant à l’objectif à atteindre, tout en leur laissant une marge d’appréciation dans l’évaluation de la nécessité de telles mesures (arrêts du 10 juin 2010, Commission/Portugal, C‑37/09, non publié, EU:C:2010:331, point 35, et du 11 décembre 2014, Commission/Grèce, C‑677/13, non publié, EU:C:2014:2433, point 77).
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77. La Cour a déjà décidé que, si l’article 4, paragraphe 1, de la directive 2006/12/CE du Parlement européen et du Conseil, du 5 avril 2006, relative aux déchets (JO L 114, p. 9 ) , qui a été remplacé par l’article 13 de la directive 2008/98, ne précise pas le contenu concret des mesures qui doivent être prises pour s’assurer que les déchets soient éliminés sans mettre en danger la santé de l’homme et sans porter préjudice à l’environnement, il n’en reste pas moins que cette disposition lie les États membres quant à l’objectif à atteindre, tout en leur laissant une marge d’appréciation dans l’évaluation de la nécessité de telles mesures (arrêt Commission/Portugal, EU:C:2010:331, point 35 et jurisprudence citée).
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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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108. Those findings cannot be invalidated by the Commission’s allegation that altering the substance of a European Union act means turning it into an act which its author would not have had the intention of adopting or would not have adopted. In that regard, it need only be stated that the question whether partial annulment would alter the substance of the contested measure is an objective criterion, and not a subjective criterion linked to the political intention of the authority which adopted the measure at issue (see Case C-239/01 Germany v Commission , paragraph 37, and Case C‑244/03 France v Parliament and Council , paragraph 14).
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37. However, as the Advocate General points out in point 48 of his Opinion, whether partial annulment would alter the substance of the contested measure is an objective criterion, and not a subjective criterion linked to the political intention of the authority which adopted the measure at issue.
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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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35. Furthermore, it should also be recalled that, if, by virtue of the very nature of regulations and of their function in the system of sources of European Union law, the provisions of regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application, however, some of their provisions may necessitate, for their implementation, the adoption of measures of application by the Member States (see, in particular, Case C-316/10 Danske Svineproducenter [2011] ECR I-13721, paragraphs 39 and 40 and the case-law cited).
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40. However, some of their provisions may necessitate, for their implementation, the adoption of measures of application by the Member States ( Handlbauer , paragraph 26 and the case-law cited).
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29 The assumption underlying this approach is that the employer commits himself, albeit unilaterally, to pay his employees defined benefits or to grant them specific advantages and that the employees in turn expect the employer to pay them those benefits or provide them with those advantages. Anything that is not a consequence of that commitment and does not therefore come within the corresponding expectations of the employees falls outside the concept of pay.
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80
In the present case, since the national origin requirement is discriminatory, as established in paragraph 68 of the present judgment, the Slovenian legislation can be justified only on one of the grounds listed in Article 36 TFEU (see, inter alia, by analogy, judgments of 17 June 1981, Commission v Ireland, 113/80, EU:C:1981:139, paragraphs 7, 8, 10 and 11, and of 30 November 1995, Gebhard, C‑55/94, EU:C:1995:411, paragraph 37).
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11 THE ORDERS CONCERNED IN THE PRESENT CASE ARE NOT MEASURES WHICH ARE APPLICABLE TO DOMESTIC PRODUCTS AND TO IMPORTED PRODUCTS WITHOUT DISTINCTION BUT RATHER A SET OF RULES WHICH APPLY ONLY TO IMPORTED PRODUCTS AND ARE THEREFORE DISCRIMINATORY IN NATURE , WITH THE RESULT THAT THE MEASURES IN ISSUE ARE NOT COVERED BY THE DECISIONS CITED ABOVE WHICH RELATE EXCLUSIVELY TO PROVISIONS THAT REGULATE IN A UNIFORM MANNER THE MARKETING OF DOMESTIC PRODUCTS AND IMPORTED PRODUCTS .
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57
First of all, as regards the condition that the Turkish worker must be duly registered as belonging to the labour force in the host Member State, the Court has held that that condition relates to the concept of ‘legal employment’ which appears in Article 6(1) of Decision No 1/80, embraces all workers who have met the conditions laid down by law or regulation in the host Member State and who are thus entitled to pursue an occupation in its territory (see, to that effect, judgment of 18 December 2008, Altun, C‑337/07, EU:C:2008:744, paragraphs 22, 23 and 28).
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20
Second, before a condition can be classified within ‘other requirements’, within the meaning of Article 1(4) of Directive 98/34, a national measure must constitute a ‘condition’ which can significantly influence the composition or nature of the product concerned or its marketing (see, to that effect, judgment of 19 July 2012, Fortuna and Others, C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 35 and the case-law cited). However, it is necessary to determine whether such a measure is to be deemed a ‘condition’ relating to the use of the product concerned or whether it is, rather, a national measure falling within the category of technical regulations referred to in Article 1(11) of Directive 98/34. Whether a national measure falls within one or other of those two categories of technical regulations depends on the scope of the prohibition laid down by that measure (see, to that effect, judgment of 21 April 2005, Lindberg, C‑267/03, EU:C:2005:246, paragraphs 73 and 74).
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74. Whether a national measure such as that at issue in the main proceedings falls within one or the other of those two categories of technical regulation depends on the scope of the prohibition laid down by that measure.
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36. As regards those limits, it must be borne in mind that, pursuant to Article 7(2), the proprietor of a mark may, despite the putting on the market of goods bearing his mark, oppose further commercialisation of those goods where legitimate reasons for such opposition exist and especially where the condition of the goods is changed or impaired after they have been put on the market. According to settled case-law, the use of the adverb ‘especially’ in Article 7(2) of the directive indicates that alteration or impairment of the condition of goods bearing a mark is given only as an example of what may constitute legitimate reasons (see, inter alia, Case C-59/08 Copad [2009] ECR I-3421, paragraph 54 and the case-law cited).
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26. As is clear from the explanatory memorandum to the Commission Proposal of 10 December 1997 (COM(97) 628), which led to the adoption of Directive 2001/29, confirmed by recital 25 in the preamble to that directive, ‘making available to the public’, for the purposes of Article 3 of the directive, is intended to refer to ‘interactive on-demand transmissions’ characterised by the fact that members of the public may access them from a place and at a time individually chosen by them (see, to that effect, judgment in SCF , C‑135/10, EU:C:2012:140, paragraph 59).
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59. As is clear from the explanatory memorandum to the Proposal for Directive 2001/29 (COM(97) 628), confirmed by recital 25 of that directive, making available to the public, for the purposes of that provision, is intended to refer to ‘interactive on-demand transmissions’ characterised by the fact that members of the public may access them from a place and at a time individually chosen by them.
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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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En outre, l’article 56 TFUE confère des droits non seulement au prestataire de services lui-même, mais également au destinataire
desdits services (arrêts Eurowings Luftverkehr, C‑294/97, EU:C:1999:524, point 34; FKP Scorpio Konzertproduktionen, C‑290/04,
EU:C:2006:630, point 32; Dijkman et Dijkman-Lavaleije, C‑233/09, EU:C:2010:397, point 24, ainsi que X, C‑498/10, EU:C:2012:635,
point 23).
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32. Finally, it is settled case-law that Article 59 of the EEC Treaty confers rights not only on the provider of services but also on the recipient (see, in particular, Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377; Case C‑204/90 Bachmann [1992] ECR I‑249; Case C‑158/96 Kohll [1998] ECR I‑1931; Case C‑224/97 Ciola [1999] ECR I‑2517; and Case C‑294/97 Eurowings Luftverkehr [1999] ECR I‑7447).
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18 Secondly, the relevant market is delimited from a geographical point of view. It should be noted that most beer supply agreements are still entered into at a national level. It follows that, in applying the Community competition rules, account is to be taken of the national market for beer distribution in premises for the sale and consumption of drinks.
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44 The same applies where the possibility for addressees not to give effect to the Community measure is purely theoretical and their intention to act in conformity with it is not in doubt (see to that effect Case 62/70 Bock v Commission [1971] ECR 897, paragraphs 6 to 8, Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraphs 8 to 10, and Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-0000, paragraph 51).
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7 THE APPROPRIATE GERMAN AUTHORITIES HAD NEVERTHELESS ALREADY INFORMED THE APPLICANT THAT THEY WOULD REJECT ITS APPLICATION AS SOON AS THE COMMISSION HAD GRANTED THEM THE REQUISITE AUTHORIZATION . THEY HAD REQUESTED THAT AUTHORIZATION WITH PARTICULAR REFERENCE TO THE APPLICATIONS ALREADY BEFORE THEM AT THAT TIME .
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48. Furthermore, it is true that the Member State at issue, by planning the taxation of purchases of residential property in its territory, is proceeding in accordance with the principle of territoriality enshrined in international tax law and recognised by European Union law (see, inter alia, Futura Participations and Singer , paragraph 22). However, the powers which Member States are recognised as having by virtue of the principle of territoriality must be exercised in accordance with the principles of European Union law.
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45. Concerning, second, the amount of that lump sum payment, it should be borne in mind that it is for the Court to determine that amount in a manner that is appropriate to the circumstances and proportionate both to the breach that has been established and the ability to pay of the Member State concerned (see, to that effect, Commission v Greece , paragraph 146, and Commission v Spain , paragraph 143).
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146. If the Court decides to impose a lump sum payment, it must do so, in exercising its discretion, in a manner that is appropriate to the circumstances and proportionate both to the breach that has been established and the ability to pay of the Member State concerned (see Commission v Spain , paragraph 41).
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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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58. Secondly, in order to be ‘eligible’ within the meaning of Article 44(2) of Regulation No 1782/2003 and Article 34(2)(a) of Regulation No 73/2009, the agricultural area at issue in the main proceedings must be part of the holding of the farmer concerned. The Court has held in that regard that that is the case where the farmer has the power to manage that holding for the purposes of an agricultural activity, that is to say, where the farmer enjoys a degree of autonomy with regard to that area sufficient for the carrying-out of his or her agricultural activity (judgment in Landkreis Bad Dürkheim , C‑61/09, EU:C:2010:606, paragraphs 58 and 62).
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58. In that regard, it should be borne in mind that, as indicated in paragraph 52 of this judgment, an area is allocated to a farmer’s holding where he has the power to manage that holding for the purposes of an agricultural activity.
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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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65 In preliminary ruling proceedings, although it is ultimately for the national court, which alone is competent to assess the facts, to establish whether, in the particular case before it, there are objective grounds unrelated to any discrimination based on sex to justify such inequality, the Court of Justice, which is called on to provide answers of use to the national court, may nevertheless 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 Seymour-Smith and Perez, cited above, paragraphs 67 and 68).
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68 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 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 (Case C-278/93 Freers and Speckmann [1996] ECR I-1165, paragraph 24).
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42 THE GERMAN GOVERNMENT CONCLUDES THAT , FROM THE POINT OF VIEW OF COMPETITION , THE POSITION OF THE MARKET IN NEWSPAPERS AND PERIODICALS IS SO SPECIAL THAT IT IS NOT POSSIBLE TO APPLY TO IT WITHOUT MODIFICATION PRINCIPLES WHICH HAVE BEEN DEVELOPED IN COMPLETELY DIFFERENT CONTEXTS . IF THE POSSIBILITY OF FIXING PRICES FOR NEWSPAPERS AND PERIODICALS IS NOT ACCEPTED ANY EFFECTIVE DISTRIBUTION SYSTEM FOR SUCH PRODUCTS WOULD BE INCOMPATIBLE WITH THE RULES ON COMPETITION AND THE EFFECT ON THE DIVERSITY AND FREEDOM OF THE PRESS WOULD BE DISASTROUS . FROM THAT POINT OF VIEW IT IS NOT UNIMPORTANT TO NOTE THAT SYSTEMS OF FIXED PRICES IN RELATION TO THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS ARE ACCEPTED UNDER THE LEGISLATION OF MOST MEMBER STATES OR ARE OPERATED WITHOUT ENCOUNTERING ANY DIFFICULTIES .
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25
It also follows from established case-law that, in principle, the Court only has jurisdiction to interpret the provisions of EU law that are actually applicable in the main proceedings (see, to that effect, judgments of 18 December 1997, Annibaldi, C‑309/96, EU:C:1997:631, paragraph 13, and of 7 July 2011, Agafiţei and Others, C‑310/10, EU:C:2011:467, paragraph 28 and case-law cited, and order of 14 April 2016, Târșia, C‑328/15, not published, EU:C:2016:273, paragraph 19 and case-law cited).
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28. It is therefore apparent from settled case-law that a reference by a national court can be rejected if, inter alia, it is obvious that European Union law cannot be applied, either directly or indirectly, to the circumstances of the case (see, inter alia, Leur Bloem , paragraph 26 and the case‑law cited).
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36. In addition to the legitimacy which it derives from the very wording of the treaties, such an interpretation is the only one consistent with the principles of legal certainty and non-discrimination.
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