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28. It follows clearly from those provisions, which are stated in a mandatory manner, that the European Union legislature intended to require the awarding authority to examine the details of tenders which are abnormally low, and for that purpose obliges it to request the tenderer to furnish the necessary explanations to prove that those tenders are genuine (see, to that effect, Joined Cases C‑285/99 and C‑286/99 Lombardini and Mantovani [2001] ECR I‑9233, paragraphs 46 to 49).
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48 The Court also observed that it was in order to enable tenderers submitting exceptionally low tenders to demonstrate that those tenders were genuine ones, and thus to ensure the opening up of public works contracts, that the Council, in Article 29(5) of Directive 71/305, laid down a precise, detailed procedure for the examination of tenders which appear to be abnormally low, and that that aim would be jeopardised if Member States were able, when implementing that provision, to depart from it to any material extent (Fratelli Costanzo, paragraph 20).
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41 The same is true of the loans at reduced rates of interest and the reduction in social security charges, because they also enabled CBSF to avoid having to bear costs which would normally have had to be met out of the undertaking' s own financial resources, and thereby prevented market forces from having their normal effect .
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33. As regards, first, the basis for calculation of the taxable value, the Court considers that while, as suggested by the Commission, the authorities of a Member State may refer to a guide indicating the average prices of second-hand vehicles in the national market or to a list of average current prices used as a reference in the sector ( Gomes Valente , paragraph 25, and Weigel , paragraph 74), the Hellenic Republic cannot be criticised for taking as a basis the wholesale price of the corresponding vehicle current at the time when the imported vehicle was put into circulation on the international market.
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25 In drawing up those scales, the authorities of a Member State might refer to a guide indicating the average prices of second-hand vehicles in the national market or to a list of average current prices used as a reference in the sector.
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37. Secondly, it is necessary to examine whether the assistance at issue is granted to the public servant by reason of the latter’s employment. It follows from settled case-law that, in order to determine whether a benefit comes within the scope of Article 157 TFEU, the one criterion which may prove decisive is whether the benefit was granted to the worker by reason of his employment relationship, and all the more so because this is the only criterion which is based on the wording of that provision itself (see, with regard to retirement pensions, Maruko , paragraph 46 and the case-law cited).
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33. Having regard to that case-law, it should be noted at the outset that, as an exception to a fundamental freedom, the derogation in Article 2(2)(i) of Directive 2006/123 must be interpreted in a manner which limits its scope to what is strictly necessary to safeguard the interests it allows the Member States to protect (see, by analogy, judgment in Commission v Belgium , C‑47/08, EU:C:2011:334, paragraph 84 and the case-law cited) and must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority (see, by analogy, judgments in Commission v Belgium , C‑47/08, EU:C:2011:334, paragraph 85, and SOA Nazionale Costruttori , C‑327/12, EU:C:2013:827, paragraph 51).
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84. It is also settled case-law that the first paragraph of Article 45 EC is an exception to the fundamental rule of freedom of establishment. As such, the exception must be interpreted in a manner which limits its scope to what is strictly necessary to safeguard the interests it allows the Member States to protect ( Commission v Greece , paragraph 7; Commission v Spain , paragraph 34; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 45; Case C‑393/05 Commission v Austria [2007] ECR I‑10195, paragraph 35; Case C‑404/05 Commission v Germany [2007] ECR I‑10239, paragraphs 37 and 46; and Commission v Portugal , paragraph 34).
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63. However, given that the obligation to check the status of the taxable person must be discharged by the competent national authority before it assigns that person a VAT identification number, possible irregularities affecting the register cannot deprive a trader who has relied on the information entered in that register of the right of exemption from VAT to which it is entitled.
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26 The question of the need for a preliminary ruling to enable the national court to give judgment in the main proceedings is for that court to decide. According to settled case-law, where the questions referred concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, in particular, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; Case C-340/99 TNT Traco [2001] ECR I-4109, paragraph 30; and Case C-472/99 Clean Car Autoservice [2001] ECR I-9687, paragraph 13). None of the exceptions to the rule identified in that case-law applies to this case. In particular, it is not obvious that the interpretation of Community law sought bears no relation to the actual facts of the main action or its subject-matter.
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13 It is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38, and Case C-340/99 TNT Traco [2001] ECR I-4109, paragraph 30).
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11IT FOLLOWS THAT THE FAMILY BENEFITS OR ALLOWANCES WERE NOT ' ' PAYABLE ' ' UNDER THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE MEMBERS OF THE FAMILY WERE RESIDING .
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26 The first point to be noted in answering this question is that, since the judgment in Case C-192/89 Sevince [1990] ECR I-3461, at paragraph 26, the Court has consistently held that Article 6(1) of Decision No 1/80 has direct effect in the Member States and that Turkish nationals who satisfy its conditions may therefore rely directly on the rights which the three indents of that provision confer on them progressively, according to the duration of their employment in the host Member State (see, in particular, Case C-1/97 Birden [1998] ECR I-7747, paragraph 19).
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19 The first point to be noted is that since the judgment in Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraph 26, the Court has consistently held that Article 6(1) of Decision No 1/80 has direct effect in the Member States and that Turkish nationals who satisfy its conditions may therefore rely directly on the rights which the three indents of that provision confer on them progressively, according to the duration of their employment in the host Member State (see, most recently, Case C-36/96 Günaydin v Freistaat Bayern [1997] ECR I-5143, paragraph 24, and Case C-98/96 Ertanir v Land Hessen [1997] ECR I-5179, paragraph 24).
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63. It follows that the transactions covered by that exemption are those which are specific to the business of undertakings for collective investment.
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30
The Court has made it clear that that test is satisfied where a breach is established which implies that the institution concerned manifestly and gravely disregarded the limits set on its discretion, the factors to be taken into consideration in that connection being, inter alia, the degree of clarity and precision of the rule breached and the measure of discretion left by that rule to the EU authorities (see, to that effect, in particular, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraphs 55 and 56; of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraph 70; and of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 102).
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70. The condition requiring a sufficiently serious breach of Community law implies manifest and grave disregard by the Member State for the limits set on its discretion, the factors to be taken into consideration in this connection being, inter alia, the degree of clarity and precision of the rule infringed and the measure of discretion left by that rule to the national authorities ( Brasserie du Pêcheur and Factortame, paragraphs 55 and 56).
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37 For those reasons, the conditions required of comparative advertising must be interpreted in the sense most favourable to it.
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27. In the present case, note 1(c) to Chapter 3 of Part Two, Section I, of the CN states that that chapter does not cover fish unsuitable for human consumption by reason of either their species or their condition. It is therefore clear from the wording of that note that the decisive criterion for determining whether the goods at issue in the main proceedings come under Chapter 3 lies in the fact that they are fit for human consumption. Under those circumstances, the determinant question is whether, at the time that they were cleared through customs, the frozen backbones of farmed Atlantic salmon, obtained after filleting the fish, constituting those goods, were fit for human consumption (see, by analogy, Case C‑395/93 Neckermann Versand [1994] ECR I‑4027, paragraph 8, and Case C‑14/05 Anagram International [2006] ECR I‑6763, paragraph 26), which it is for the national court to ascertain.
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26. Furthermore, it is irrelevant that those balloons can also be used as festive articles. If the objective characteristic of a product can be established at the time of customs clearance, the fact that it may also be possible to envisage another use for that product will not preclude its classification for legal purposes. For its classification for customs purposes, that product does not have to be solely or exclusively intended for use corresponding to that objective characteristic. It suffices if that is the main use for which it is intended (see, to that effect, Case C‑395/93 Neckermann Versand [1994] ECR I‑4027, paragraphs 8 and 9).
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98. The statement of reasons required by Article 253 EC must explain clearly and unambiguously the reasoning followed by the Community authority which has adopted the contested act, so as to enable interested parties to take cognisance of the justifications for the measure for the purpose of defending their rights and to enable the courts to exercise their powers of review (Spain v Commission , paragraph 82).
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25. As to whether the recipient’s failure to comply with such an obligation entitles the competent authority to refuse altogether to pay the financial assistance, it is to be noted that the principle of proportionality, which is a general principle of Community law and has been affirmed on numerous occasions in the case-law of the Court of Justice, in particular with regard to the common agricultural policy, must be observed as such both by the Community legislature and by the national legislatures and courts which apply Community law. That principle requires that measures adopted by Community institutions should not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see Joined Cases C‑37/06 and C‑58/06 Viamex Agrar Handel and ZVK [2008] ECR I-0000, paragraphs 33 and 35, and the case-law cited therein).
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33. First of all, the principle of proportionality, which is a general principle of Community law and has been affirmed on numerous occasions in the case-law of the Court of Justice, in particular with regard to common agricultural policy (see, inter alia, Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81, and Case C‑310/04 Spain v Council [2006] ECR I‑7285, paragraph 97), must be observed as such both by the Community legislature and by the national legislatures and courts which apply Community law. That principle must also be observed by the competent national authorities in the application of Regulation No 615/98.
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56. Article 8 of Directive 75/442 states that those obligations, which are the corollary to the prohibition on the abandonment, dumping or uncontrolled disposal of waste laid down in Article 4 of the Directive, are the responsibility of ‘any holder of waste’.
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49. In those circumstances, and given that the statement of reasons for the contested decision discloses in a clear and unequivocal fashion the reasoning followed by the Commission in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review, that statement of reasons complies with the requirements established by the Court's case-law (see, in particular, Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35, and Italy v Commission , cited above, paragraph 48).
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48 Fourth, concerning the question whether the Commission failed to comply with its obligation to state reasons, it must be made clear that that obligation is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. The statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. That requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-17/99 France v Commission [2001] ECR I-2481, paragraphs 35 and 36).
The general plea: failure to take account of the value of TWECs as an instrument of intervention in the labour market
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32 The fact that a levy is categorised as a tax under national legislation does not mean that, as regards Regulation No 1408/71, that same levy cannot be regarded as falling within the scope of that regulation and caught by the prohibition against overlapping legislation.
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25. It is settled case‑law that the different language versions of a provision of Community law must be uniformly interpreted, and thus, in the case of divergence between those versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case C‑420/98 W.N. [2000] ECR I‑2847, paragraph 21, and Case C‑56/06 Euro Tex [2007] ECR I‑4859, paragraph 27).
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21 According to settled case-law, the various language versions of a provision of Community law must be uniformly interpreted, and thus, in the case of divergence between those versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see Case 30/77 Bouchereau [1977] ECR 1999, paragraph 14; Case C-449/93 Rockfon [1995] ECR I-4291, paragraph 28; and Case C-236/97 Skatteministeriet v Codan [1998] ECR I-8679, paragraph 28).
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34 Accordingly, providing access to roads on payment of a toll constitutes a supply of services for consideration within the meaning of Article 2(1) of the Sixth Directive.
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48 However when taking all appropriate measures to ensure fulfilment of the obligations arising under a directive, pursuant to Article 5 of the Treaty, the Member States are required to comply with the general principles of Community law, in particular the principle of proportionality (see, to that effect, inter alia Case C-326/88 Hansen [1990] ECR I-2911, paragraphs 17 to 19).
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18 It follows from the foregoing that under Community law concerning consumer protection the provision of information to the consumer is considered one of the principal requirements . Thus Article 30 cannot be interpreted as meaning that national legislation which denies the consumer access to certain kinds of information may be justified by mandatory requirements concerning consumer protection .
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47. Selon une jurisprudence constante, l’infliction d’une astreinte ne se justifie, en principe, que pour autant que perdure le manquement tiré de l’inexécution d’un précédent arrêt jusqu’à l’examen des faits par la Cour (arrêt Commission/Grèce, C‑378/13, EU:C:2014:2405, point 47).
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16 It should be remembered at the outset that the principle of freedom to provide services established in Article 59 of the Treaty, which is one of its fundamental principles, includes the freedom for the recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions, and that tourists must be regarded as recipients of services (see Case 186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 15).
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15 On that last point, in its judgment of 31 January 1984 in Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro (( 1984 )) ECR 377, the Court held that the freedom to provide services includes the freedom for the recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions, and that tourists, among others, must be regarded as recipients of services .
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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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55. As regards the question of abuse mentioned at paragraph 24 of the Singh judgment, cited above, it should be mentioned that the motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the latter State provided that he there pursues or wishes to pursue an effective and genuine activity (Case 53/81 Levin [1982] ECR 1035, paragraph 23).
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23 THE ANSWER TO BE GIVEN TO THE THIRD QUESTION PUT TO THE COURT BY THE RAAD VAN STATE MUST THEREFORE BE THAT THE MOTIVES WHICH MAY HAVE PROMPTED A WORKER OF A MEMBER STATE TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE ARE OF NO ACCOUNT AS REGARDS HIS RIGHT TO ENTER AND RESIDE IN THE TERRITORY OF THE LATTER STATE PROVIDED THAT HE THERE PURSUES OR WISHES TO PURSUE AN EFFECTIVE AND GENUINE ACTIVITY .
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20. As both Fixtures and the Commission submit, there are several indications of the intention of the Community legislature to give the term database as defined in the directive, a wide scope, unencumbered by considerations of a formal, technical or material nature.
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24
It follows from the settled case-law of the Court, in that respect, that an appellant who is likely to have to refund a sum pursuant to the judgment of the General Court must be considered to be directly affected by that judgment (see to that effect, in particular, judgments of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraphs 46 to 58; and of 2 October 2003, International Power and Others v NALOO, C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P, EU:C:2003:534, paragraphs 52 and 53).
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58 In the current situation, therefore, Falck could be rendered liable for the repayment in full of the amounts mentioned in Article 2 of the contested judgment and, until the case is definitively disposed of, it must, at the very least, make provision in order to be able to bear, if need be, the corresponding financial burden. By dismissing the arguments put forward by ACB and Falck, the contested judgment maintained that situation and the constraints which they entail for Falck, whereas if the contested judgment had arrived at the opposite conclusion, those constraints could have been lifted. Falck is therefore directly affected by the contested judgment and may therefore bring an appeal against it.
B - The request that certain documents produced by ACB and Falck be removed from the case-file
Arguments of the parties
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35. S’agissant de l’argumentation de la République hellénique tirée des difficultés auxquelles elle aurait été confrontée pour mettre les équipements des agglomérations en cause en conformité avec ladite directive, il convient de relever que, un État membre ne pouvant exciper de dispositions, de pratiques ou de situations de son ordre juridique interne pour justifier l’inobservation des obligations résultant du droit de l’Union, une telle argumentation ne saurait prospérer (voir, en ce sens, arrêt Commission/Grèce, C‑378/13, EU:C:2014:2405, point 29).
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18 That conclusion is not affected by the judgment in Viho v Commission, cited above, in paragraphs 15 to 17 of which the Court held that Article 85(1) of the EC Treaty (now Article 81(1) EC) does not apply to relations between a parent company and its subsidiaries where those companies form a single economic unit within which the subsidiaries do not enjoy real autonomy in determining their course of action on the market, but carry out the instructions issued to them by the parent company controlling them.
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15 It should be noted, first of all, that it is established that Parker holds 100% of the shares of its subsidiaries in Germany, Belgium, Spain, France and the Netherlands and that the sales and marketing activities of its subsidiaries are directed by an area team appointed by the parent company and which controls, in particular, sales targets, gross margins, sales costs, cash flow and stocks. The area team also lays down the range of products to be sold, monitors advertising and issues directives concerning prices and discounts.
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49. According to settled case-law, the principle of legal certainly requires that Community rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (see Case C-345/06 Heinrich [2009] ECR I‑1659, paragraph 44 and the case-law cited).
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119. In the present case, the review of the proportionality and necessity of the measures in question calls for an analysis of the circumstances of law and of fact which characterise the situation in Finland, which the national court is in a better position than the Court of Justice to carry out. Accordingly, it is for the national court to verify, on the basis of all the matters of law and fact before it, whether the prior authorisation system at issue in the main proceedings is such as to achieve the objective of the protection of health and public policy, and whether that objective can be achieved with at least an equivalent level of effectiveness by less restrictive methods (see, to that effect, judgments in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraphs 37 and 38 and the case-law cited, and in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 55).
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55. The question remains to be answered whether, in order to achieve that objective of protection of the health of young persons with at least an equivalent level of effectiveness, there are other methods less restrictive of the principle of free movement of goods and capable of replacing the method 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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21 The general principle of Community law that everyone is entitled to fair legal process, which is inspired by those fundamental rights (see in particular Opinion 2/94 [1996] ECR I-1759, paragraph 33, and judgment in Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 14), and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law.
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14 It should first be noted that, as the Court has consistently held (see, in particular, Opinion 2/94 [1996] ECR I-1759, paragraph 33), fundamental rights form an integral part of the general principles of Community law whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The Convention has special significance in that respect. As the Court has also held, it follows that measures are not acceptable in the Community which are incompatible with observance of the human rights thus recognized and guaranteed (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41).
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20 As far as the first condition is concerned, the provisions relating to the grant of German child-raising allowance confer a legally defined right, and the allowance is granted automatically to persons who fulfil certain objective criteria, without any individual and discretionary assessment of personal needs.
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83. While it is true that this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact between such traders, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market (Case C-7/95 P John Deere , paragraph 87, and the case-law cited therein).
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87 According to the same case-law (Suiker Unie v Commission, paragraph 174, and Züchner, paragraph 14), although it is correct to say that this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such traders, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market.
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50. Given the period that is relevant for the facts in the main proceedings, namely 2005 to 2009, both regulations are applicable ratione temporis . It should be remembered, however, that there is a discrepancy between the wording of Article 44(2) of Regulation No 1782/2003 and that of Article 34(2)(a) of Regulation No 73/2009.
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44. It is also the Court’s case-law that Member States may, under certain conditions, apply the private copying levy indiscriminately with regard to recording media suitable for reproduction, including where the final use of such media does not meet the criteria set out in Article 5(2)(b) of Regulation No 2001/29 (see, to that effect, judgment in Amazon.com International Sales and Others , EU:C:2013:515, paragraph 31).
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31. In that regard, it must be held that a system of financing fair compensation consisting in the indiscriminate application of a private copying levy on the placing on the market, for commercial purposes and for consideration, of recording media suitable for reproduction, together with such a right to reimbursement, provided that that right is effective and does not make it excessively difficult to repay the levy paid, may prove to be consistent with Article 5(2)(b) of Directive 2001/29, where the practical difficulties described in paragraph 24 of the present judgment or other similar difficulties justify its application.
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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 In any event, Article 8(1) of Regulation No 3118/93 provides that Member States are to assist one another in applying that regulation. If the German authorities had doubts as to the lawfulness of cabotage authorisations issued by the Luxembourg authorities, it was their responsibility to refer that question to those authorities so that, if need be, the latter could re-examine the situation. In their capacity as authorities of the host Member State, the German authorities were, however, not entitled to decline to recognise cabotage authorisations issued by the Member State of establishment or to impose a condition for carrying out cabotage by road not laid down by Regulation No 3118/93 (see, to that effect, Case C-202/97 FTS v Bestuur van het Landelijk Instituut Sociale Verzekeringen [2000] ECR I-883, paragraphs 51 to 56, and Case C-178/97 Banks and Others v Théâtre Royal de la Monnaie [2000] ECR I-2005, paragraphs 38 to 43).
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43 However, it is incumbent on the competent institution of the Member State which issued the E 101 certificate to reconsider whether it was properly issued and, if appropriate, to withdraw the certificate if the competent institution of the Member State in which the self-employed person carries out a work assignment expresses doubts as to the correctness of the facts on which the certificate is based and, consequently, of the information contained therein, in particular because the information does not correspond to the requirements of Article 14a(1)(a) of Regulation No 1408/71 (Fitzwilliam Executive Search, paragraph 56).
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81 It must be stressed that it is not for the Court to assign a legal classification to the actions brought by the plaintiffs before the national court. In the circumstances, it is for Metallgesellschaft and Others and Hoechst to specify the nature and basis of their actions (whether they are actions for restitution or actions for compensation for damage), subject to the supervision of the national court.
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36. According to consistent case-law, developed in the context of actions for annulment brought by Member States or institutions, any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as acts open to challenge, within the meaning of Article 263 TFEU (see, in particular, Case 22/70 Commission v Council (‘ ERTA’ ) [1971] ECR 263, paragraph 42; Case C‑316/91 Parliament v Council [1994] ECR I-625, paragraph 8; Spain v Commission , cited above, paragraph 27; Joined Cases C‑138/03, C‑324/03 and C‑431/03 Italy v Commission [2005] ECR I‑10043, paragraph 32; Case C‑301/03 Italy v Commission [2005] ECR I‑10217, paragraph 19; Case C‑370/07 Commission v Council [2009] ECR I‑8917, paragraph 42). The case-law further shows that a Member State, such as the applicant in Case C‑475/10 P, may admissibly bring an action for annulment of a measure producing binding legal effects without having to demonstrate that it has an interest in bringing proceedings (see, to that effect, Case 45/86 Commission v Council [1987] ECR. 1493, paragraph 3 and Commission v Council [2009] ECR I-8917, paragraph 16).
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16 SUCH AUTHORITY ARISES NOT ONLY FROM AN EXPRESS CONFERMENT BY THE TREATY - AS IS THE CASE WITH ARTICLES 113 AND 114 FOR TARIFF AND TRADE AGREEMENTS AND WITH ARTICLE 238 FOR ASSOCIATION AGREEMENTS - BUT MAY EQUALLY FLOW FROM OTHER PROVISIONS OF THE TREATY AND FROM MEASURES ADOPTED, WITHIN THE FRAMEWORK OF THOSE PROVISIONS, BY THE COMMUNITY INSTITUTIONS .
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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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65. As regards the fifth part of the first ground of appeal, the Court notes that FIFA has not set out the precise reasons why it considers that the General Court went beyond the judicial review which it is required to exercise. Moreover, it has not stated the precise paragraphs of the judgment under appeal containing the grounds which it criticises. In accordance with the Court’s settled case‑law, that part must be rejected as inadmissible (see Case C‑202/07 P France Télécom v Commission [2009] ECR I‑2369, paragraph 55, and the order of 2 February 2012 in Case C‑404/11 P Elf Aquitaine v Commission [2012] ECR I‑0000, paragraph 15).
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55. In that regard it should be pointed out that, in accordance with Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal.
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50. In that connection, it must also be borne in mind that it is the supplies of goods or services which are subject to VAT, rather than payments made by way of consideration for such supplies (see Case C-108/99 Cantor Fitzgerald International [2001] ECR I-7257, paragraph 17). A fortiori, payments on account of supplies of goods or services that have not yet been clearly identified cannot be subject to VAT.
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70. Having regard to that context, the Court finds that the contested decision could be reasoned in a summary manner (Case 73/74 Groupement des fabricants de papiers peints de Belgique v Commission [1975] ECR 1491, paragraph 31; Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 105), and that therefore sufficient grounds were stated for the contested decision (C-301/96 Germany v Commission , paragraphs 92 and 93).
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105. Under Article 92(3)(b) of the Treaty, aid " to remedy a serious disturbance in the economy of a Member State" may be considered to be compatible with the common market.
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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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33. It must be borne in mind that, as the Commission rightly observes, the Court has already found that it is possible to limit the subject-matter of the proceedings at the stage of the proceedings before the Court (see to that effect Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraphs 24 and 25; Case C-52/00 Commission v France [2002] ECR I-3827, paragraph 44; Case C-139/00 Commission v Spain [2002] ECR I-6407, paragraphs 18 and 19; and Case C-433/03 Commission v Germany [2005] ECR I-6985, paragraph 28). Accordingly, the Commission could limit the subject-matter of the failure to fulfil obligations alleged in its application to one of the species and one of the hunting methods mentioned during the pre-litigation procedure.
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44 In that connection it should be observed that, although under the Court's case-law the complaints in the application must be identical to those in the letter of formal notice and in the reasoned opinion, that requirement cannot be carried so far as to mean that in every case the statement of complaints must be exactly the same, where the subject-matter of the proceedings has not been extended or altered (Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 25). In the present case that condition is satisfied and accordingly the plea of inadmissibility raised by the French Government cannot be upheld.
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76. En l’occurrence, ainsi qu’il a été constaté dans l’arrêt attaqué, les réunions du comité logistique de la FNAS, tenues entre entreprises concurrentes, dont Comap, et portant sur des éléments sensibles de la politique commerciale, notamment sur les prix, avaient un caractère anticoncurrentiel. Par conséquent, afin de renverser la présomption du caractère illicite de sa participation à ces réunions, Comap devrait apporter la preuve qu’elle s’est distancée publiquement du contenu de celles‑ci.
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14 Those provisions are sufficiently precise and unconditional to enable the national court to determine whether or not a person should be regarded as a person intended to benefit under the directive. A national court need only verify whether the person concerned is an employed person under national law and whether he is excluded from the scope of the directive in accordance with Article 1(2) and Annex 1 (as to the necessary conditions for such exclusion, see the judgments in Case 22/87 Commission v Italy, cited above, paragraphs 18 to 23, and Case C-53/88 Commission v Greece [1990] ECR I-3917, paragraphs 11 to 26), and then ascertain whether one of the situations of insolvency provided for in Article 2 of the directive exists.
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11 Article 1(2 ) of the directive provides that :
"Member States may, by way of exception, exclude claims by certain categories of employee from the scope of this directive, by virtue of the special nature of the employee' s contract of employment or employment relationship or of the existence of other forms of guarantee offering the employee protection equivalent to that resulting from this directive .
The categories of employee referred to in the first subparagraph are listed in the annex ."
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78. Une approche plus rigoureuse de l’encadrement de 2001 ayant ainsi été constatée, il convient de vérifier si ce changement concerne les dispositions des encadrements en cause qui sont, en l’espèce, pertinentes. En effet, se pose la question de savoir si ledit changement était susceptible d’influer sur la décision litigieuse, c’est-à-dire si cette dernière a été prise sur la base de principes et de critères nouveaux introduits par l’encadrement de 2001.
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73
As the Advocate General has noted in point 59 of his Opinion, importers such as Clarks and Puma, who have paid an anti-dumping duty, have a clear interest and capacity of their own to submit, in actions such as those in the main proceedings, that the regulations imposing that duty are invalid on the ground that the duty was imposed without the Commission having first adjudicated, in accordance with the rules laid down by Regulation No 384/96, upon the claims for market economy treatment or individual treatment submitted by the producers or exporters of the products concerned. Failure to take account of those claims is liable to have an adverse effect on the anti-dumping duty that will be imposed, at the end of the procedure, on the products of the traders concerned (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraph 42, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraph 36).
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36. It follows, first, from paragraphs 29 to 34 of the present judgment that the Commission ought to have examined the substantiated claim submitted to it by the appellant pursuant to Article 2(7)(b) and (c) of the basic regulation for the purpose of claiming MET in the context of the anti-dumping proceeding which was the subject of the contested regulation. It must be held, second, that it cannot be ruled out that such an examination might have led to the imposition on the appellant of a definitive anti-dumping duty different from the 16.5% duty applicable to it pursuant to Article 1(3) of the contested regulation. Indeed, it is apparent from that provision that a definitive anti-dumping duty of 9.7% was imposed on the only Chinese trader in the sample which obtained MET. As is apparent from paragraph 42 of the judgment in Brosmann Footwear (HK) and Others v Council , however, had the Commission found that market economy conditions prevailed also for the appellant, the latter ought, when the calculation of an individual dumping margin was not possible, also to have benefited from that same rate.
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45. À titre liminaire, il convient de rappeler que, dans le domaine des contrôles et des sanctions des irrégularités commises au regard du droit de l’Union, le législateur de l’Union a, en adoptant le règlement n° 2988/95, posé une série de principes et exigé que, en règle générale, l’ensemble des règlements sectoriels, tels que les règlements n os 360/95 et 1623/2000, respectent ces principes (voir arrêts du 1 er juillet 2004, Gerken, C‑295/02, Rec. p. I‑6369, point 56, et du 21 juillet 2011, Beneo-Orafti, C‑150/10, non encore publié au Recueil, point 69).
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67 As regards the present references for a preliminary ruling, it should be observed that this is the first time that the principle of legitimate expectations has been invoked by a Government in support of a request to limit the temporal effects of a judgment. That principle, which is the corollary of the principle of legal certainty (judgments in Case C-63/93 Duff and Others v Minister for Agriculture and Food, Ireland, and the Attorney General [1996] ECR I-569, paragraph 20, and Case C-107/97 Rombi and Arkopharma [2000] ECR I-3367, paragraph 66), is generally relied upon by individuals (traders) in a situation where they have legitimate expectations created by the public authorities (see, for example, the judgment in Duff and Others, cited above, paragraph 22, and the case-law cited there). As the Advocate General observes in point 83 of his Opinion, the principle of legitimate expectations cannot be relied on by a Government in order to avoid the consequences of a decision of the Court declaring a Community provision invalid, since it would jeopardise the possibility for individuals to be protected against conduct of the public authorities based on unlawful rules.
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66 It is true that, as Arkopharma has observed, the principle of the protection of legitimate expectations is the corollary of the principle of legal certainty which requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by Community law remain foreseeable (see Case C-63/93 Duff and Others v Minister for Agriculture and Food, Ireland, and the Attorney General [1996] ECR I-569, paragraph 20).
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29. It should, however, be borne in mind that fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be subject to restrictions. However, such restrictions must in fact correspond to the objectives of public interest pursued by the measure in question and must not constitute, with regard to the aim pursued, a manifest or disproportionate breach of the rights thus guaranteed.
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54. The purpose of that progressive rather than immediate introduction of those payments in the new Member States was not to slow down the restructuring of the agricultural sector and not to create significant disparities in income or social imbalances by the granting of aid not proportionate to the income level of farmers and the general population (see, to that effect, judgments in Bábolna , C‑115/10, EU:C:2011:376, paragraph 34, and Poland v Council , C‑273/04, EU:C:2007:622, paragraph 69).
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34. In accordance with Articles 143a and 143b of Regulation No 1782/2003, direct payments or, if appropriate, the single area payment scheme are to be progressively introduced in the new Member States. The purpose of that progressive introduction of EU aid in the new Member States is not to slow down the necessary restructuring of the agricultural sector in those Member States and not to create significant disparities in income or social imbalances by the granting of aid not proportionate to the income level of farmers and the general population (see, by analogy, Case C‑273/04 Poland v Council [2007] ECR I‑8925, paragraph 69).
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44 Accordingly, it must be considered whether the negotiations opened after 22 September 1995 were substantially different in character from those already conducted and were, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, so that the application of the provisions of Directive 93/38 might be justified.
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54. As the Court has emphasised, directly applicable rules of law of the Union which are an immediate source of rights and obligations for all concerned, whether Member States or individuals who are parties to legal relationships under Union law, must deploy their full effects, in a uniform manner in all Member States, as from their entry into force and throughout the duration of their validity (see, to that effect, Simmenthal , paragraphs 14 and 15, and Factortame , paragraph 18).
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15THESE PROVISIONS ARE THEREFORE A DIRECT SOURCE OF RIGHTS AND DUTIES FOR ALL THOSE AFFECTED THEREBY , WHETHER MEMBER STATES OR INDIVIDUALS , WHO ARE PARTIES TO LEGAL RELATIONSHIPS UNDER COMMUNITY LAW .
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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53. It is also apparent from settled case-law that Article 34 TFEU reflects the obligation to comply with the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of European Union products to national markets (see Case C-110/05 Commission v Italy [2009] ECR I-519, paragraph 34, and Ker-Optika , paragraph 48).
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34. It is also apparent from settled case-law that Article 28 EC reflects the obligation to respect the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of Community products to national markets (see, to that effect, Case 174/82 Sandoz [1983] ECR 2445, paragraph 26; Case 120/78 Rewe‑Zentral (‘ Cassis de Dijon ’) [1979] ECR 649, paragraphs 6, 14 and 15; and Keck and Mithouard , paragraphs 16 and 17).
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70. Ainsi, en l’espèce, le Tribunal a rappelé, au point 143 de l’arrêt attaqué, qu’une demande de mesures d’instruction présentée après la clôture de la procédure orale ne peut être retenue que si elle porte sur des faits de nature à exercer une influence décisive sur la solution du litige et que l’intéressé n’avait pu faire valoir avant la fin de la procédure orale (arrêt du 8 juillet 1999, Hoechst/Commission, C‑227/92 P, Rec. p. I‑4443, point 104). Il a conclu, à la suite de l’examen des arguments présentés par les requérants, que ceux-ci n’avaient pas avancé la moindre justification en vue d’établir que, lors de l’introduction de leur requête, ils n’avaient pu étayer leur affirmation concernant la surexploitation et l’érosion des ressources, en particulier, les raisons pour lesquelles il ne leur avait pas été possible, au stade de la requête ou à tout le moins de la réplique, de demander une expertise. Dès lors, le Tribunal a jugé cette demande irrecevable.
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84. As regards the concept of the ‘exercise of official authority’ within the meaning of the first paragraph of Article 45 EC, the assessment of that concept must take account, in accordance with settled case-law, of the character as European Union law of the limits imposed by that provision on the permitted exceptions to the principle of freedom of establishment, so as to ensure that the effectiveness of the Treaty in the field of freedom of establishment is not frustrated by unilateral provisions of the Member States (see, to that effect, Reyners , paragraph 50; Commission v Greece , paragraph 8; and Case C‑438/08 Commission v Portugal [2009] ECR I‑10219, paragraph 35).
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35. Similarly, it is not contested that the review of exceptions to the freedom of establishment laid down in Article 45 EC must take into account the Community character of the limits imposed by that article on that freedom (see, to that effect, Case 2/74 Reyners [1974] ECR 631, paragraph 50, and Commission v Greece , paragraph 8).
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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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67 However, according to the case-law of the Court, the principle of the protection of legitimate expectations may be relied on in order to challenge Community rules only to the extent that the Community itself has previously created a situation which can give rise to a legitimate expectation (see, for example, Case C-22/94 Irish Farmers Association and Others v Minister for Agriculture, Food and Forestry, Ireland and the Attorney General [1997] ECR I-1809, paragraph 19). In the case of foodstuffs intended for particular nutritional uses, Community rules have not previously created a situation which might give rise, on the part of Arkopharma, to a legitimate expectation on which Arkopharma could rely.
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19 According to the consistent case-law of the Court, in the sphere of the common organization of the markets, whose purpose involves constant adjustments to meet changes in the economic situation, economic operators cannot legitimately expect that they will not be subject to restrictions arising out of future rules of market or structural policy. The principle of the protection of legitimate expectations may be invoked as against Community rules only to the extent that the Community itself has previously created a situation which can give rise to a legitimate expectation (see Case C-177/90 Kühn v Landwirtschaftskammer Weser-Ems [1992] ECR I-35, paragraphs 13 and 14, and Case C-63/93 Duff and Others v Minister for Agriculture and Food, Ireland, and the Attorney General [1996] ECR I-569, paragraph 20).
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54. In those circumstances, the answer to the question referred must be that Article 6(1) of Regulation No 44/2001 applies where claims brought against different defendants are connected when the proceedings are instituted, that is to say, where it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings, without there being any further need to establish separately that the claims were not brought with the sole object of ousting the jurisdiction of the courts of the Member State where one of the defendants is domiciled.
The third question
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49
In the second place, it follows from the settled case-law of the Court that, first, for disputes related to contracts of employment, Section 5 of Chapter II of the Brussels I Regulation lays down a series of rules whose objective, as is stated in Recital 13 of that regulation, is to protect the weaker party to the contract by means of rules of jurisdiction that are more favourable to his interests (see, to that effect, judgments of 19 July 2012, Mahamdia, C‑154/11, EU:C:2012:491, paragraph 44 and the case-law cited, and of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 43).
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43. With regard to the purpose of Chapter II, Section 5 of Regulation No 44/2001, suffice it to note that, as is clear from the thirteenth recital, the regulation aims to provide the weaker parties to contracts, including contracts of employment, with enhanced protection by derogating from the general rules of jurisdiction.
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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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210. It is, in principle, for the national courts to apply the criteria for establishing the liability of Member States for damage caused to individuals by breaches of Community law ( Brasserie du Pêcheur and Factortame , paragraph 58, and Köbler , paragraph 100), in accordance with the guidelines laid down by the Court for the application of those criteria ( Brasserie du Pêcheur and Factortame , paragraphs 55 to 57; Case C-392/93 British Telecommunications [1996] ECR I‑1631, paragraph 41; Denkavit and Others , paragraph 49; and Konle , paragraph 58).
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41. Whilst it is in principle for the national courts to verify whether or not the conditions governing State liability for a breach of Community law are fulfilled, in the present case the Court has all the necessary information to assess whether the facts amount to a sufficiently serious breach of Community law.
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47 Since, moreover, the E 101 certificate is binding on that competent institution, there can be no justification for the person who calls on that worker's services not to act upon that certificate. If he has doubts as to the validity of the certificate, that person must however inform the institution in question.
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111. It is apparent from the case‑file that that argument did not expand on an argument raised previously, whether directly or by implication, in the original application which is closely connected to the original complaint. However, Articles 48(2) of the Rules of Procedure of the General Court provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure (see, to that effect, the judgment of 12 November 2009 in Case C‑564/08 P SGL Carbon v Commission , not published in the ECR, paragraphs 20 to 34).
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28. Il ressort par ailleurs des points 15, 19, 23, 28, 32 et 35 de la décision litigieuse que les différents montants de chiffres d’affaires et pourcentages de parts de marché, incluant la consommation captive, avaient été fournis à la Commission par les entreprises concernées.
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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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104. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (see Case C‑350/93 Commission v Italy [1995] ECR I‑699, paragraph 22). It also follows from that function of repayment of aid that, as a general rule, save in exceptional circumstances, the Commission will not exceed the bounds of its discretion, recognised by the case-law of the Court, if it asks the Member State to recover the sums granted by way of unlawful aid since it is only restoring the previous situation (see Case C‑75/97 Belgium v Commission [1999] ECR I‑3671, paragraph 66, and Case C‑310/99 Italy v Commission [2002] ECR I‑2289, paragraph 99).
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22 That objective is attained once the aid in question, increased where appropriate by default interest, has been repaid by the recipient, in this case SNAM SpA, to ENI, the public body responsible for managing State holdings. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored.
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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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57. On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned (see to this effect, in particular, Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraphs 28 to 33, WWF and Others , cited above, paragraphs 69 and 71, Case C-194/94 CIA Security International [1996] ECR I-2201, paragraphs 40 to 55, Case C-201/94 Smith & Nephew and Primecrown [1996] ECR I-5819, paragraphs 33 to 39, and Case C-443/98 Unilever [2000] ECR I-7535, paragraphs 45 to 52).
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38 However, the provisions of Directive 65/65, as amended by Directive 87/21, may be relied upon only in order to challenge the validity of an authorization issued on the basis of that directive.
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Par ailleurs, comme le Tribunal l’a également fait observer au point 98 de l’arrêt attaqué, la notion de prévisibilité dans
ce contexte dépend dans une large mesure du contenu du texte dont il s’agit, du domaine qu’il couvre ainsi que du nombre et
de la qualité de ses destinataires (arrêt du 28 juin 2005, Dansk Rørindustri e.a./Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P
à C‑208/02 P et C‑213/02 P, EU:C:2005:408, point 219).
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51. As regards, secondly, the principle of effectiveness, the Court has already held that every case in which the question arises as to whether a national procedural provision makes the application of European Union law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see Case C‑413/12 Asociación de Consumidores Independientes de Castilla y León [2013] ECR, paragraph 34 and the case-law cited).
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34. Pour ce qui est du principe d’effectivité, il convient de rappeler que la Cour a déjà jugé que chaque cas où se pose la question de savoir si une disposition procédurale nationale rend impossible ou excessivement difficile l’application du droit de l’Union doit être analysé en tenant compte de la place de cette disposition dans l’ensemble de la procédure, de son déroulement et de ses particularités, devant les diverses instances nationales. Dans cette perspective, il y a lieu de prendre en considération, s’il échet, les principes qui sont à la base du système juridictionnel national, tels que la protection des droits de la défense, le principe de sécurité juridique et le bon déroulement de la procédure (voir, en ce sens, arrêts du 6 octobre 2009, Asturcom Telecomunicaciones, C‑40/08, Rec. p. I‑9579, point 39 et jurisprudence citée, ainsi que Aziz, précité, point 53).
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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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16. The Court has, however, clarified that measures having equivalent effect to quantitative restrictions and therefore prohibited by Article 28 EC do not include national provisions restricting or prohibiting certain selling arrangements, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States (see Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard [1993] ECR I‑6097, paragraph 16).
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16 By contrast, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
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19 THE RULES ON GRADE AND STEP CLASSIFICATION SET OUT IN ARTICLES 31 AND 32 OF THE STAFF REGULATIONS LAY DOWN THE PRINCIPLE THAT CANDIDATES APPOINTED OFFICIALS IN CATEGORY A OR IN THE LANGUAGE SERVICE ARE RECRUITED IN THE STARTING GRADE OF THEIR CATEGORY OR SERVICE AND CLASSIFIED IN THE FIRST STEP OF THEIR GRADE . HOWEVER , THOSE TWO ARTICLES ALLOW THE APPOINTING AUTHORITY TO MAKE EXCEPTIONS TO THOSE RULES , TAKING ACCOUNT OF THE EXPERIENCE OF THE PERSONS CONCERNED , PROVIDED THAT IT IS SUFFICIENTLY ' ' SPECIFIC ' ' IN RELATION TO THE VACANT POST .
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77
Secondly, it must be borne in mind that, under Article 4(1) of Directive 2001/14, the Member States are to establish a charging framework. They may also establish specific charging rules, while respecting the management independence of the infrastructure manager. Under that provision, it is for the infrastructure manager to determine the charge for the use of the infrastructure and also to collect it (see, inter alia, judgments of 28 February 2013, Commission v Spain, C‑483/10, EU:C:2013:114, paragraph 39, and of 3 October 2013, Commission v Italy, C‑369/11, EU:C:2013:636, paragraph 41).
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39. Article 4(1) of Directive 2001/14 provides that the Member States are to establish a charging framework and may also establish specific charging rules, while respecting the management independence of the infrastructure manager. Under that provision, it is the latter’s responsibility, first, to determine the charge for use of the infrastructure and, second, to collect that charge.
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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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25
In the area governed by the Framework Decision, the principle of mutual recognition, which constitutes, as is stated notably in recital 6 of the Framework Decision, the ‘cornerstone’ of judicial cooperation in criminal matters, is given effect in Article 1(2) of the Framework Decision, pursuant to which Member States are in principle obliged to give effect to a European arrest warrant (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 79 and the case-law cited).
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79
In the area governed by the Framework Decision, the principle of mutual recognition, which constitutes, as is stated notably in recital (6) of that Framework Decision, the ‘cornerstone’ of judicial cooperation in criminal matters, is given effect in Article 1(2) of the Framework Decision, pursuant to which Member States are in principle obliged to give effect to a European arrest warrant (see, to that effect, judgment in Lanigan, C‑237/15 PPU, EU:C:2015:474, paragraph 36 and the case-law cited).
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46. So far as concerns the treatment of VAT that has been improperly invoiced because there is no taxable transaction, it follows from Directive 2006/112 that the two traders involved are not necessarily treated identically in so far as the issuer of the invoice has not corrected it, as is apparent from paragraphs 33 to 37 above.
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59. However, the Court has also stated – in Ilsinger , paragraph 48 – that the wording of Article 15(1) of Regulation No 44/2001 is not identical in every respect to that of the first paragraph of Article 13 of the Brussels Convention. In particular, it held in paragraph 50 of that judgment that the conditions for application which consumer contracts must fulfil are now worded more generally than they were, in order to ensure better protection for consumers with regard to new means of communication and the development of electronic commerce.
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48. However, it must be held that the wording of Article 15(1) of Regulation No 44/2001, the interpretation of which is sought by the national court in the present reference for a preliminary ruling, is not identical in every respect to that of the first paragraph of Article 13 of the Brussels Convention.
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30. It should be noted, as the Advocate General observed at point 18 of his Opinion, that the systematic use of the plural in those provisions indicates that they do not prohibit, in principle, candidates or tenderers from relying on the capacities of more than one third-party entity in order to prove that they meet a minimum capacity level. A fortiori , those provisions do not lay down any general prohibition regarding a candidate or tenderer’s reliance on the capacities of one or more third‑party entities in addition to its own capacities in order to fulfil the criteria set by a contracting authority.
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43. So far as concerns the principle of equivalence, to which the second question for a preliminary ruling implicitly refers, it must be pointed out that, as recalled in paragraph 38 above, Article 6(1) of the directive is a mandatory provision. Furthermore, according to the Court’s case-law, that directive as a whole constitutes a measure which is essential to the accomplishment of the tasks entrusted to the European Union and, in particular, to raising the standard of living and the quality of life throughout the European Union (see Case C‑243/08 Pannon GSM [2009] ECR I‑4713, paragraph 26, and Banco Español de Crédito , paragraph 67).
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67. According to the Court’s settled case-law, that directive as a whole constitutes a measure which is essential to the accomplishment of the tasks entrusted to the European Union and, in particular, to raising the standard of living and the quality of life throughout the European Union (see Mostaza Claro , paragraph 37; Pannon GSM , paragraph 26; and Asturcom Telecomunicaciones , paragraph 51).
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92
Admittedly, the sanctions and measures sought in the cases in the main proceedings against the defendants in the main proceedings and which are the subject of the third question fall within the sanctions and measures referred to in Article 88(2) and Article 89(1)(d) of Regulation No 6/2002 (see, to that effect, judgment of 13 February 2014, H. Gautzsch Großhandel, C‑479/12, EU:C:2014:75, paragraphs 52 to 54).
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34. With regard, secondly, to the duration of the infringement with which this action is concerned, it should be recalled that, although Article 228 EC does not specify the period within which a judgment must be complied with, it is, nevertheless, beyond dispute that the action required to give effect to a judgment must be set in motion immediately and be completed as soon as possible (see, inter alia, Case C-568/07 Commission v Greece , paragraph 51).
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51. Secondly, with regard to the duration of the infringement, it should be recalled that, although Article 228 EC does not specify the period within which a judgment must be complied with, it is nevertheless, beyond dispute that the action required to give effect to a judgment must be set in motion immediately and be completed as soon as possible (Case 131/84 Commission v Italy [1985] ECR 3531, paragraph 7).
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23 It follows that Directive 93/83 confirms that Directive 89/552 covers the cable retransmission of television programmes.
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63. In accordance with settled case-law, to which the General Court, moreover, correctly referred in paragraph 146 of the judgment under appeal, the right to rely on the principle of the protection of legitimate expectations applies to any individual in a situation in which an institution of the European Union, by giving that person precise assurances, has led him to entertain well-founded expectations (see, inter alia, judgment of 24 November 2005 in Case C-506/03 Germany v Commission , not published in the ECR, paragraph 58, and judgment in Case C‑213/06 P EAR v Karatzoglou [2007] ECR I‑6733, paragraph 33). Such assurances, in whatever form they are given, constitute precise, unconditional and consistent information (see, to that effect, judgment in Case C-47/07 P Masdar (UK) v Commission [2008] ECR I‑9761, paragraphs 34 and 81).
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81. As regards, next, the test set out by the Court of First Instance in paragraph 119 of the judgment under appeal, for the purposes of applying to the case before it the principle of the protection of legitimate expectations, it must be held that that test clearly reflects settled case‑law according to which a party may not plead breach of that principle unless it has been given precise assurances by the administration (see, to that effect, Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 147, and Case C‑213/06 P EAR v Karatzoglou [2007] ECR I‑6733, paragraph 33 and the case‑law cited).
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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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35. Finally, where there are several places of delivery of the goods in a single Member State, the Court took the view that the place with the closest linking factor between the contract and the court having jurisdiction is that of the principal delivery, which must be determined on the basis of economic criteria, and that, if it is not possible to determine the place of the principal delivery, each of the places of delivery has a sufficiently close link of proximity to the material elements of the dispute, in which case the applicant may sue the defendant in the court for the place of delivery of his choice ( Color Drack , paragraphs 40 and 42).
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40. In that regard it is necessary to take account of the fact that the special jurisdiction under the first indent of Article 5(1)(b) of Regulation No 44/2001 is warranted, in principle, by the existence of a particularly close linking factor between the contract and the court called upon to hear the litigation, with a view to the efficient organisation of the proceedings. It follows that, where there are several places of delivery of the goods, ‘place of performance’ must be understood, for the purposes of application of the provision under consideration, as the place with the closest linking factor between the contract and the court having jurisdiction. In such a case, the closest linking factor will, as a general rule, be at the place of the principal delivery, which must be determined on the basis of economic criteria.
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71. En particulier, un acte faisant grief est suffisamment motivé dès lors qu’il est intervenu dans un contexte connu de l’intéressé, qui lui permet de comprendre la portée de la mesure prise à son égard (arrêt Conseil/Bamba, précité, point 54).
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26
With regard to the questions asked in so far as they concern the ‘Treaty’, it must be recalled that, according to the settled case-law of the Court, where a matter is regulated in a harmonised manner at EU level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure (see, inter alia, judgments of 13 December 2001, DaimlerChrysler, C‑324/99, EU:C:2001:682, paragraph 32; of 24 January 2008, Roby Profumi, C‑257/06, EU:C:2008:35, paragraph 14, and of 1 October 2009, HSBC Holdings and Vidacos Nominees, C‑569/07, EU:C:2009:594, paragraph 26).
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14. As the Court has already held, when the question referred concerns harmonisation at Community level, the national measures relating thereto must be assessed in the light of the provisions of that harmonising measure and not those of the EC Treaty (see, to that effect, Eau de Cologne & Parfümerie-Fabrik 4711 , paragraph 28; Case C-37/92 Vanacker and Lesage [1993] ECR I-4947, paragraph 9, and Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 32).
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55. Toutefois, lorsque le Tribunal a constaté ou apprécié les faits, la Cour est compétente pour exercer, en vertu de l’article 256 TFUE, un contrôle sur la qualification juridique de ces faits et les conséquences de droit qui en ont été tirées par le Tribunal (voir, notamment, arrêt du 10 juillet 2008, Bertelsmann et Sony Corporation of America/Impala, C‑413/06 P, Rec. p. I‑4951, point 29 et jurisprudence citée).
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108. In that regard, it should be borne in mind that it follows from Article 120(c) of the Rules of Procedure of the Court of Justice and from the case-law relating to that provision that the application initiating proceedings must state the subject matter of the dispute and a summary of the pleas in law, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of fact and of law on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order sought to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on a complaint (see, inter alia, Case C-165/08 Commission v Poland [2009] ECR I‑6843, paragraph 42, and Case C-343/08 Commission v Czech Republic [2010] ECR I-275, paragraph 26).
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26. It is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice and from the case-law relating to that provision that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on an objection (Case C‑195/04 Commission v Finland [2007] ECR I‑3351, paragraph 22 and the case‑law cited, and Case C‑412/04 Commission v Italy [2008] ECR I‑619, paragraph 103).
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Il s’ensuit que c’est sans commettre d’erreur de droit que le Tribunal a conclu, au point 74 de l’arrêt attaqué, que le Conseil
a pu raisonnablement considérer que les mesures de gel des fonds en cause présentaient un caractère spécifique justifiant
qu’il se réserve la compétence d’exécution à l’article 46, paragraphe 2, du règlement n° 267/2012 (arrêt du 1er mars 2016, National Iranian Oil Company/Conseil, C‑440/14 P, EU:C:2016:128, point 59).
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8 In deciding on this action it should be recalled that according to the case-law of the Court (see Case 247/84 Motte [1985] ECR 3887, at paragraph 25; Case 304/84 Muller [1986] ECR 1511, at paragraph 26; and Case C-42/90 Bellon [1990] ECR I-4863, at paragraphs 16 and 17), rules making the use of an additive subject to authorization are in compliance with Community law if two conditions are satisfied.
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25 IN REPLY TO THE QUESTION REFERRED TO THE COURT BY THE COUR D ' APPEL , BRUSSELS , IT MUST THEREFORE BE STATED THAT :
AS COMMUNITY LAW NOW STANDS , THE PROVISIONS OF THE EEC TREATY CONCERNING THE FREE MOVEMENT OF GOODS WITHIN THE COMMUNITY DO NOT PRECLUDE NATIONAL PROVISIONS WHICH REQUIRE , IN RESPECT OF FOODSTUFFS TO WHICH A COLOURANT HAS BEEN ADDED , EVEN WHERE SUCH FOODSTUFFS ARE IMPORTED FROM ANOTHER MEMBER STATE IN WHICH THEY ARE LAWFULLY MARKETED , THAT THE USE OF THAT COLOURANT FOR THAT TYPE OF FOODSTUFF BE ENTERED ON A NATIONAL POSITIVE LIST AND THAT ANY APPLICATION FOR SUCH AN ENTRY MUST BE REFERRED TO A COMMITTEE OF EXPERTS IN ORDER TO OBTAIN AN OPINION ON THE HARMFULNESS OF THE ADDITIVE , THE DEGREE OF THE HUMAN ORGANISM ' S TOLERANCE OF IT AND THE NECESSITY , VALUE AND SUITABILITY OF ITS USE .
HOWEVER , IN APPLYING SUCH PROVISIONS TO PRODUCTS IMPORTED FROM ANOTHER MEMBER STATE IN WHICH THEY WERE LAWFULLY MARKETED THE NATIONAL AUTHORITIES MUST AUTHORIZE THE COLOURING OF THE FOODSTUFF IF , HAVING REGARD TO THE EATING HABITS PREVAILING IN THE IMPORTING MEMBER STATE , IT CORRESPONDS TO A REAL NEED , AND IN THEIR APPRAISAL OF THE GENERAL HEALTH RISK WHICH A COLOURING MATTER ACTUALLY USED MAY REPRESENT , THOSE AUTHORITIES MUST TAKE INTO ACCOUNT THE RESULTS OF INTERNATIONAL SCIENTIFIC RESEARCH , AND IN PARTICULAR THE WORK OF THE COMMUNITY ' S SCIENTIFIC COMMITTEE FOR FOOD .
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42. However, for a restrictive measure to be justified, it must observe the principle of proportionality, in that it must be appropriate for securing the attainment of the objective it pursues and must not go beyond what is necessary to attain it (Case C‑101/05 A [2007] ECR I‑11531, paragraphs 55 and 56, and Persche , paragraph 52).
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28 However, the requirement that a basic act must be adopted before an appropriation is implemented derives directly from the scheme of the Treaty, in accordance with which the conditions governing the exercise of legislative powers and budgetary powers are not the same (Case 242/87, cited above, paragraph 18).
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18 In so far as the argument is based on the fact that the budgetary decisions concerning the Erasmus programme need to be subject to more onerous procedural requirements than those laid down in Article 128, it must be pointed out that under the scheme of the Treaty the conditions under which legislative powers and budgetary powers are exercised are not the same . Consequently, the requirements of the budgetary procedure laid down for making available the appropriations needed for the implementation of the programme at issue cannot have any implications regarding the procedural requirements for the adoption of the contested decision, since those requirements fall under a completely separate provision .
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63. En particulier, s’agissant de la détermination du montant de l’amende, il ne saurait être opéré, par l’application de méthodes de calcul différentes, une discrimination entre les entreprises qui ont participé à un accord ou à une pratique concertée contraire à l’article 81 CE (voir, notamment, arrêt Alliance One International et Standard Commercial Tobacco/Commission et Commission/Alliance One International e.a., précité, point 58 et la jurisprudence citée).
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16. As a preliminary point, it should be observed that it is settled case-law that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in a case is a matter for the national court (see, inter alia, Case C‑235/95 Dumon and Froment [1998] ECR I‑4531, paragraph 25; Case C-13/05 Chacón Navas [2006] ECR I‑6467, paragraph 32, and Case C‑251/06 ING. AUER [2007] ECR I-0000, paragraph 19).
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32. As regards Eurest’s argument that it dismissed Ms Chacón Navas without reference to the fact that she was absent from work on grounds of sickness because, at that time, her services were no longer necessary, it must be recalled that, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑326/00 IKA [2003] ECR I‑1703, paragraph 27, and Case C‑145/03 Keller [2005] ECR I‑2529, paragraph 33).
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40. Il y a lieu de rappeler que la transposition en droit interne d’une directive n’exige pas nécessairement une reprise formelle et textuelle de ses dispositions dans une disposition légale expresse et spécifique et peut se satisfaire d’un contexte juridique général, dès lors que celui-ci assure effectivement la pleine application de la directive d’une façon suffisamment claire et précise (voir, notamment, arrêt du 12 juillet 2007, Commission/Autriche, C-507/04, Rec. p. I-5939, point 89).
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32 According to settled case-law, a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties (see Case 270/80 Polydor and RSO [1982] ECR 329, paragraphs 14 to 21; Case 104/81 Kupferberg [1982] ECR 3641, paragraphs 29 to 31; Case C-312/91 Metalsa [1993] ECR I-3751, paragraphs 11 to 20, and Gloszczuk, paragraph 48).
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15 The Court based that interpretation in particular on the view that such a disproportion could have the effect of jeopardizing the free movement of goods within the Community and would thus be incompatible with Article 95 of the Treaty, the interpretation of which must take account of the aims of the Treaty, as laid down in Articles 2 and 3, which include, first, the establishment of a common market involving the elimination of all obstacles to trade in order to merge the national markets into a single market bringing about conditions as close as possible to those of a genuine internal market (paragraphs 23 and 24).
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39. Moreover, it is settled case-law that the right to deduct can be exercised only in respect of taxes actually due, that is to say, the taxes corresponding to a transaction subject to VAT or paid in so far as they were due (Case C-342/87 Genius Holding [1989] ECR 4227, paragraph 13, and Case C-454/98 Schmeink & Cofreth and Strobel [2000] ECR I‑6973, paragraph 53).
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38. It is clear from the Court’s case-law that the obligation to indicate the legal basis of a measure is related to the duty to state reasons (see, inter alia, Case 45/86 Commission v Council , paragraph 9, and Case 203/86 Spain v Council [1988] ECR 4563, paragraphs 36 to 38).
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9 ADMITTEDLY, FAILURE TO REFER TO A PRECISE PROVISION OF THE TREATY NEED NOT NECESSARILY CONSTITUTE AN INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS WHEN THE LEGAL BASIS FOR THE MEASURE MAY BE DETERMINED FROM OTHER PARTS OF THE MEASURE . HOWEVER, SUCH EXPLICIT REFERENCE IS INDISPENSABLE WHERE, IN ITS ABSENCE, THE PARTIES CONCERNED AND THE COURT ARE LEFT UNCERTAIN AS TO THE PRECISE LEGAL BASIS .
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20 ARTICLE 38 ( 1 ) PROVIDES THAT THE COMMON MARKET SHALL EXTEND TO AGRICULTURE AND TRADE IN AGRICULTURAL PRODUCTS , WHILE PARAGRAPH ( 2 ) STATES THAT , SAVE AS OTHERWISE PROVIDED IN ARTICLES 39 TO 46 , THE RULES LAID DOWN FOR THE ESTABLISHMENT OF THE COMMON MARKET SHALL APPLY TO AGRICULTURAL PRODUCTS .
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56. Article 6(3) provides for an assessment procedure intended to ensure, by means of a prior examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site (see Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405 (‘ Waddenzee ’), paragraph 34, and Case C‑239/04 Commission v Portugal [2006] ECR I‑10183 (‘ Castro Verde ’), paragraph 19).
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34. That provision thus establishes a procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site.
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39 It is clear from Article 3(1) of Directive 75/439, as amended that, by its reference to `technical, economic and organisational constraints', the Community legislature did not intend to provide limited exceptions to a rule having general application, but to define the scope and content of a positive obligation to give priority to the processing of waste oils by regeneration.
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31
In that regard, it is apparent from the case-law of the Court that the right of deduction provided for in Article 167 et seq. of the VAT Directive is an integral part of the VAT scheme and in principle may not be limited. In particular, the right of deduction is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see judgments of 21 March 2000 in Gabalfrisa and Others, C‑110/98 to C‑147/98, EU:C:2000:145, paragraph 43; of 26 May 2005 in Kretztechnik, C‑465/03, EU:C:2005:320, paragraph 33; of 22 December 2010 in Dankowski, C‑438/09, EU:C:2010:818, paragraph 22, and of 6 December 2012 in Bonik, C‑285/11, EU:C:2012:774, paragraph 26).
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26. In that regard, the Court has consistently held that the right of deduction provided for in Article 167 et seq. of Directive 2006/112 is an integral part of the VAT scheme and in principle may not be limited. In particular, the right of deduction is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 43; Case C-63/04 Centralan Property [2005] ECR I-11087, paragraph 50; Joined Cases C-439/04 and C-440/04 Kittel and Recolta Recycling [2006] ECR I-6161, paragraph 47; and Mahagében and Dávid , paragraph 38).
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6 The Greek Government contends that the complaints formulated in the summary report are unfounded.
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24 According to settled case-law, Article 13 of the Protocol restricts the Member States' sovereignty in fiscal matters, since it precludes any national tax, regardless of its nature and the manner in which it is levied, which is imposed directly or indirectly on officials or other servants of the Communities by reason of the fact that they are in receipt of remuneration paid by the Communities, even if the tax in question is not calculated by reference to the amount of that remuneration (Commission v Belgium, cited above, paragraph 10; Tither, paragraph 12; and Case C-263/91 Kristoffersen v Skatteministeriet [1993] ECR I-2755, paragraph 14).
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14 With regard to the second question, it must be observed that the prohibition in Article 13 of the Protocol is interpreted by the Court as precluding any national tax, regardless of its nature and the manner in which it is levied, which is imposed directly or indirectly on officials or other servants of the Communities by reason of the fact that they are in receipt of remuneration paid by the Communities, even if the tax in question is not calculated by reference to the amount of that remuneration (Case 260/86 Commission v Belgium [1988] ECR 955, paragraph 10).
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28. À cet égard, il est de jurisprudence constante que, dans le cadre d’une procédure visée à l’article 267 TFUE, la Cour est uniquement habilitée à se prononcer sur l’interprétation ou la validité d’un texte de l’Union à partir des faits qui lui sont indiqués par la juridiction nationale (voir arrêts du 16 mars 1978, Oehlschläger, 104/77, Rec. p. 791, point 4; du 11 septembre 2008, Eckelkamp e.a., C‑11/07, Rec. p. I‑6845, point 52, ainsi que ordonnance du 8 novembre 2012, SKP, C‑433/11, point 24).
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13
In its judgment of 14 October 2014, Buono and Others v Commission (C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraphs 59 and 60), the Court of Justice, hearing an appeal against the judgment of 7 November 2012, Syndicat des thoniers méditerranéens and Others v Commission (T‑574/08, not published, EU:T:2012:583), held that the General Court had, in that judgment, misinterpreted the judgment of 17 March 2011, AJD Tuna (C‑221/09, EU:C:2011:153), in holding that, by the latter judgment, the Court of Justice had declared Regulation No 530/2008 to be invalid in its entirety. In that regard, the Court of Justice made clear that the judgment in AJD Tuna had declared Regulation No 530/2008 invalid only to the extent that it granted more favourable treatment to Spanish seiners, but had upheld the validity of the date of the prohibition of bluefin tuna fishing set in Article 1 of Regulation No 530/2008 for purse seiners flying the flag of Greece, France, Italy, Cyprus or Malta.
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59. It should be noted that, in the present case, the General Court’s reasoning derives from a misreading of the judgment in AJD Tuna (EU:C:2011:153). In particular, it is clear from paragraphs 105 to 108 of that judgment that, by postponing until 23 June 2008 the entry into force of the measures prohibiting fishing only for purse seiners flying the flag of Spain, without that extra period being objectively justified, the Commission infringed the principle of non-discrimination. Accordingly, it follows from that finding by the Court that, by rejecting all other grounds of appeal seeking to establish the invalidity of Regulation No 530/2008, the judgment in AJD Tuna (EU:C:2011:153) declared that regulation to be invalid only to the extent that the purse seiners flying the flag of Spain were given an extra week of fishing, but maintained the validity of the date of the prohibition set for the remaining fishing vessels, that is 16 June 2008.
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21 The plea that the Directive was not adopted on the proper legal basis must therefore be rejected.
The plea of infringement of the obligation to state reasons
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46 That provision, which constitutes a specific expression in the agricultural area of the obligations imposed on Member States by Article 5 of the EC Treaty, defines the principles according to which the Community and the Member States must ensure the implementation of Community decisions on agricultural intervention financed by the EAGGF and combat fraud and irregularities in relation to those operations (see Joined Cases 146/81, 192/81 and 193/81 BayWa and Others v Bundesanstalt für Landwirtschaftliche Marktordnung [1982] ECR 1503, paragraph 13). It imposes on the Member States the general obligation to take the measures necessary to satisfy themselves that the transactions financed by the EAGGF are actually carried out and are executed correctly, even if the specific Community act does not expressly provide for the adoption of particular supervisory measures (see Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraphs 16 and 17).
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13 REGULATION ( EEC ) NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY LAYS DOWN IN ARTICLE 8 THE PRINCIPLES ACCORDING TO WHICH THE COMMUNITY AND THE MEMBER STATES MUST ORGANIZE THE IMPLEMENTATION OF COMMUNITY DECISIONS ON AGRICULTURAL INTERVENTION FINANCED BY THE FUND AND COMBAT FRAUD AND IRREGULARITIES IN RELATION TO THOSE OPERATIONS . WITH THAT END IN VIEW , ARTICLE 8 ( 1 ) PROVIDED THAT : ' ' THE MEMBER STATES IN ACCORDANCE WITH NATIONAL PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION SHALL TAKE THE MEASURES NECESSARY TO SATISFY THEMSELVES THAT TRANSACTIONS FINANCED BY THE FUND ARE ACTUALLY CARRIED OUT AND ARE EXECUTED CORRECTLY , PREVENT AND DEAL WITH IRREGULARITIES ( AND ) RECOVER SUMS LOST AS A RESULT OF IRREGULARITIES OR NEGLIGENCE ' ' .
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35 The position could be different only if the measure in question contained particularly serious and manifest defects such that it could be deemed non-existent (Case 226/87 Commission v Greece, cited above, paragraph 16, and Case C-74/91 Commission v Germany, cited above, paragraph 11).
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41. Secondly, it must be recalled that preventing possible tax evasion, avoidance and abuse is an objective recognised and encouraged by Directive 2006/112 (see, inter alia, Halifax and Others , paragraph 71; Case C-285/09 R. [2010] ECR I-12605, paragraph 36; and Case C-504/10 Tanoarch [2011] ECR I-10853, paragraph 50). In that regard, the Court has already held that EU law cannot be relied on for abusive or fraudulent ends (see, inter alia, Case C-32/03 Fini H [2005] ECR I-1599, paragraph 32; Halifax and Others , paragraph 68; and Kittel and Recolta Recycling , paragraph 54).
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36. In order to answer that question, it must be observed, as a preliminary point, that the prevention of potential tax evasion, avoidance and abuse is an objective which is recognised and encouraged by the Sixth Directive (see, in particular, Joined Cases C‑487/01 and C‑7/02 Gemeente Leusden and Holin Groep [2004] ECR I‑5337, paragraph 76, and Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 71).
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40 That requirement means, in any event, that wine transported in bulk within the region retains entitlement to the denominación de origen calificada when it is bottled in authorised cellars.
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20. It should be pointed out, at the outset, that Article 1 of Regulation No 615/98 provides that, for the application of the second subparagraph of Article 13(9) of Regulation No 805/68, the payment of export refunds for live bovine animals falling within heading 0102 of the Combined Nomenclature is to be subject, inter alia, to compliance, during the transport of the animals to the first place of unloading in the third country of final destination, with Directive 91/628 (see Joined Cases C‑37/06 and C‑58/06 Viamex Agrar Handel and ZVK [2008] ECR I‑0000, paragraph 17).
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17. Article 1 of Regulation No 615/98 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport provides that, for the application of the second subparagraph of Article 13(9) of Regulation No 805/68, the payment of export refunds for live bovine animals falling within heading 0102 of the Combined Nomenclature is to be subject to compliance with, inter alia, Directive 91/628.
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40 AMP CONTENDS IN THAT REGARD THAT THE PRICES OF NEWSPAPERS AND PERIODICALS ARE FIXED BY THE PUBLISHERS AND NOT , AS THE NATIONAL COURT SEEMS TO THINK , BY THE DISTRIBUTION AGENCY . OBSERVANCE BY RETAILERS OF THE PRICES FIXED BY PUBLISHERS ARISES FROM THE AFOREMENTIONED SPECIAL CHARACTERISTICS OF THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS .
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41. To obtain that result, the actual depreciation of imported second-hand vehicles must be taken into account in calculating the amount of tax. That taking into account need not necessarily involve an assessment or inspection of every vehicle. A Member State may, avoiding the inherent burden of such a system, establish, by means of fixed scales determined by statute, regulation or administrative provision and calculated on the basis of criteria such as a vehicle’s age, kilometrage, general condition, propulsion method, make or model, a value for second-hand vehicles which, as a general rule, would be very close to their actual value ( Gomes Valente , paragraph 24; Weigel , paragraph 73; and Commission v Greece , paragraph 29).
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24 It does not, however, follow from the case-law cited in paragraphs 21 to 23 of this judgment that the actual depreciation of the vehicles cannot be taken into account otherwise than by means of an assessment or expert examination of each of them. Avoiding the administrative burden inherent in such a system, a Member State might be able to establish, by means of fixed scales determined by statute, regulation or administrative provision and calculated on the basis of criteria such as a vehicle's age, kilometrage, general condition, method of propulsion, make or model, a value for second-hand vehicles which, as a general rule, would be very close to their actual value.
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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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45. As regards, first, the principle of proportionality, it must be noted that the Court has already had occasion to find, in Case C-344/04 IATA and ELFAA [2010] ECR I-403, paragraphs 78 to 92, that Articles 5 to 7 of Regulation No 261/2004 are not invalid by reason of infringement of the principle of proportionality.
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91. Seventh, so far as concerns the compensation prescribed in Article 7 of Regulation No 261/2004, which passengers may claim by virtue of Article 5 when they have been informed of a flight cancellation too late, air carriers can be exempted from payment of that compensation if they prove that the cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Given the existence of such a ground for exemption and of the conditions restricting the application of this obligation to which air carriers are not subject if the information is provided sufficiently early or accompanied by offers of re-routing, the obligation does not appear manifestly inappropriate to the objective pursued. Furthermore, the amount of the compensation, set at EUR 250, 400 or 600 depending on the distance of the flights concerned, likewise does not appear excessive and indeed, as maintained by the Commission in its observations without being contradicted, essentially amounts to an update of the level of compensation laid down by Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport (OJ 1991 L 36, p. 5), taking account of inflation since its entry into force.
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39. There are two aspects to that concept. The first aspect, which is external, entails that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them ( Wilson , paragraphs 50 and 51).
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47
Also the intended purpose of the product at issue in the main proceedings must be taken into consideration, as that purpose may constitute an objective criterion for classification if it is inherent in the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see, to that effect, judgment of 26 April 2017, Stryker EMEA Supply Chain Services, C‑51/16, EU:C:2017:298, paragraph 40 and the case-law cited).
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40
In addition, in accordance with equally well-established case-law, the intended use of a product may constitute an objective criterion for classification if it is inherent in the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see, in particular, judgment of 22 December 2010, Premis Medical, C‑273/09, EU:C:2010:809, paragraph 43).
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64 ARTICLE 85 DRAWS A DISTINCTION BETWEEN THE CONCEPT OF " CONCERTED PRACTICES " AND THAT OF " AGREEMENTS BETWEEN UNDERTAKINGS " OR OF " DECISIONS BY ASSOCIATIONS OF UNDERTAKINGS "; THE OBJECT IS TO BRING WITHIN THE PROHIBITION OF THAT ARTICLE A FORM OF COORDINATION BETWEEN UNDERTAKINGS WHICH, WITHOUT HAVING REACHED THE STAGE WHERE AN AGREEMENT PROPERLY SO-CALLED HAS BEEN CONCLUDED, KNOWINGLY SUBSTITUTES PRACTICAL COOPERATION BETWEEN THEM FOR THE RISKS OF COMPETITION .
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61. Contrary to what Technopol appears to be suggesting, the fact that Article 12(b) of Regulation No 40/94 ensures that every trader may freely use indications relating to the characteristics of goods and services in no way limits the scope of Article 7(1)(c) of that regulation. On the contrary, that fact clearly discloses the need for the ground of refusal set out in Article 7(1)(c) of Regulation No 40/94 – which, moreover, is an absolute ground for refusal – to be actually applied to any sign which may designate a characteristic of the goods or the services in respect of which its registration as a mark is sought (see, to that effect, as regards Article 6 of Directive 89/104, Case C‑104/01 Libertel [2003] ECR I-3793, paragraphs 58 and 59, and, as regards Article 12 of Regulation No 40/94, Case C-64/02 P OHIM v Erpo Möbelwerk [2004] ECR I-10031, paragraph 45).
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58. Article 6 of the Directive concerns the limits on the effects of a trade mark once it has been registered. The Commission's argument amounts to proposing that there should be a minimal review of the grounds for refusal in Article 3 of the Directive at the time when the application for registration is considered, on the basis that the risk that operators might appropriate certain signs which ought to remain available is neutralised by the limits which Article 6 imposes at the stage when advantage is taken of the effects of the registered mark. That approach is, essentially, tantamount to withdrawing the assessment of the grounds of refusal in Article 3 of the Directive from the competent authority at the time when the mark is registered, in order to transfer it to the courts with responsibility for ensuring that the rights conferred by the trade mark can actually be exercised.
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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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47. The Court has consistently held that ‘goods’ for the purposes of that provision means goods which can be valued in money and which are capable, as such, of forming the subject of commercial transactions (see, to that effect, judgment in Commission v Italy , 7/66, EU:C:1968:51, p. 428). That definition includes animals (see, to that effect, judgment in Commission v Belgium , C‑100/08, EU;C:2009:537, paragraph 83). As the Advocate General noted in point 63 of her Opinion, the provisions of the FEU Treaty on free movement of goods apply irrespective of whether the goods concerned are being transported across national frontiers for the purposes of sale or resale, or rather for personal use or consumption (see, to that effect, judgment in Schumacher , 215/87, EU:C:1989:111, paragraph 23).
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83. Ainsi que la Commission l’a relevé à bon droit, les restrictions à l’importation, à la vente et à la détention de spécimens nés et élevés en captivité, qui résultent de la réglementation litigieuse, constituent des mesures d’effet équivalent à des restrictions quantitatives au sens de l’article 28 CE.
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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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62 It is settled case-law that economic grounds can never serve as justification for barriers prohibited by Article 30 of the Treaty (see, inter alia, Case 288/83 Commission v Ireland [1985] ECR 1761, paragraph 28).
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28 FINALLY , IRELAND MAY NOT RELY , IN SUPPORT OF THE MEASURE AT ISSUE , ON THE EXCEPTION OF PUBLIC POLICY PROVIDED FOR IN ARTICLE 36 OF THE TREATY . THAT PROVISION , AS THE COURT HAS CONSISTENTLY POINTED OUT IN ITS DECISIONS , MAY NOT BE RELIED ON BY A MEMBER STATE TO PROTECT ITS ECONOMIC INTERESTS ( SEE JUDGMENT OF 19 DECEMBER 1961 IN CASE 7/61 COMMISSION V ITALY ( 1961 ) ECR 317 , AND MOST RECENTLY , JUDGMENT OF 7 FEBRUARY 1984 IN CASE 238/82 DUPHAR V NETHERLANDS STATE ( 1984 ) ECR 523 , PARAGRAPH 23 ).
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77. It should be added that the lists established by directly applicable European Union regulations are not of the same nature and do not have the same legal effect, in the territory of the European Union, as the Sanctions Committee list.
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62 To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would mean allowing that party to bring before the Court, whose jurisdiction in appeals is limited, a wider case than that heard by the Court of First Instance. In an appeal the Court's jurisdiction is thus confined to examining the assessment by the Court of First Instance of the pleas argued before it (see, to that effect, Case C-136/92 P Commission v Brazzelli Lualdi [1994] ECR I-1981, paragraph 59).
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59 To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court' s jurisdiction is thus confined to review of the findings of law on the pleas argued before the Court of First Instance.
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17. Directive 2003/88 treats entitlement to annual leave and to a payment on that account as being two aspects of a single right. The purpose of providing payment for that leave is to put the worker, during such leave, in a position which is, as regards his salary, comparable to periods of work (see Robinson-Steele and Others EU:C:2006:177, paragraph 58, and Schultz-Hoff and Others EU:C:2009:18, paragraph 60).
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30
While it is true that, in relation to disputes between individuals, the Court has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual (see, inter alia, judgments in Marshall, 152/84, EU:C:1986:84, paragraph 48; Faccini Dori, C‑91/92, EU:C:1994:292, paragraph 20; and Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 108), the fact nonetheless remains that the Court has also consistently held that the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (see, to that effect, inter alia, judgments in von Colson and Kamann, 14/83, EU:C:1984:153, paragraph 26, and Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 47).
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20 As the Court has consistently held since its judgment in Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority [1986] ECR 723, paragraph 48, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual.
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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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57. Il convient de rappeler que, à supposer même que les arrêts rendus au titre de l’article 226 CE aient les mêmes effets que ceux rendus au titre de l’article 234 CE, des considérations de sécurité juridique peuvent rendre nécessaire la limitation de leurs effets dans le temps dès lors que sont remplies les conditions établies par la jurisprudence de la Cour dans le cadre de l’article 234 CE (voir arrêt du 7 juin 2007, Commission/Grèce, C‑178/05, Rec. p. I‑4185, point 67 et jurisprudence citée).
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67. As to those submissions, even if judgments delivered under Article 226 EC were to have the same effects as those delivered under Article 234 EC and, therefore, considerations of legal certainty might make it necessary to limit their temporal effects (see Case C‑359/97 Commission v United Kingdom [2000] ECR I‑6355, paragraph 92) provided that the conditions laid down by the Court’s case-law in the context of Article 234 EC are met (see, in particular, Case C-402/03 Skov and Bilka [2006] ECR I‑199, paragraph 51), it need merely be stated that in the present case the Hellenic Republic is not justified in claiming that a risk of serious economic repercussions within the meaning of that case-law exists.
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24 Second, the charges are not passed on to the final consumer in a manner characteristic of VAT. Even on the assumption that an undertaking selling to final consumers will take account, in fixing its price, of the amount of the charge included in its general expenses, not all undertakings have the possibility of thus passing on, or passing on in full, the burden of the tax.
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22. With regard in particular to the scope of Article 13B(d)(5) of the Sixth Directive, the Court has held that transactions in shares and other securities are transactions on the market in marketable securities and that trade in securities involves acts which alter the legal and financial situation as between the parties (see, to that effect, Case C-2/95 SDC [1997] ECR I-3017, paragraphs 72 and 73, and Case C-29/08 SKF [2009] ECR I-10413, paragraph 48).
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73 Furthermore, trade in securities involves acts which alter the legal and financial situation as between the parties and are comparable to those involved in the case of a transfer or a payment.
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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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39. Pursuant to Article 234 EC, where a question on the interpretation of the EC Treaty or of subordinate acts of the institutions of the Community is raised before any court or tribunal of a Member State, that court or tribunal may or, as the case may be, must, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon (see, inter alia, Case C-451/99 Cura Anlagen [2002] ECR I‑3193, paragraph 22, and Case C‑144/04 Mangold [2005] ECR I-9981, paragraph 33).
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33. It is first of all to be noted in that respect that, pursuant to Article 234 EC, where a question on the interpretation of the Treaty or of subordinate acts of the institutions of the Community is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon (see, inter alia, Case C-451/99 Cura Anlagen [2002] ECR I-3193, paragraph 22).
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63. Secondly, recital 39 to that directive confirms that the passing of subscribers’ personal data to third parties is ‘subject to the condition that the data may not be used for other purposes than those for which they were collected’.
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28. In that regard, it should be noted that, in accordance with the Court’s case-law, the concept of unlawful removal from customs supervision, as referred to in Article 203(1) of the Customs Code, must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code (Cases C‑66/99 D. Wandel EU:C:2001:69, paragraph 47; C‑371/99 Liberexim EU:C:2002:433, paragraph 55, and C‑337/01 Hamann International EU:C:2004:90, point 31).
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47 However, if Articles 37(1), 50, 51(1) and 203(1) of the Customs Code are read together, it is apparent that the scope of Article 203(1) extends well beyond the acts referred to in Article 865 of the implementing regulation and that removal must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code.
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32. It follows from that conclusion that it is irrelevant, for a finding of an infringement of the distribution right, that such advertising is not followed by the transfer of ownership of the protected work or a copy thereof to the purchaser.
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161. That having been said, it should be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, inter alia , Case 137/85 Maizena [1987] ECR 4587, paragraph 15, and Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraph 122).
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122. As a preliminary point, it ought to be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, inter alia , Case 137/85 Maizena [1987] ECR 4587, paragraph 15; Case C-339/92 ADM Ölmühlen [1993] ECR I-6473, paragraph 15, and Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, paragraph 59).
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49 In those circumstances, the application of a higher rate of tax to the income of certain non-residents than is applicable to those who are resident or treated as such constitutes indirect discrimination prohibited by Article 52 of the Treaty.
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56. Nevertheless, according to established case-law, discrimination consists in the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Boyle , paragraph 39, and Lewen , paragraph 36).
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36 Furthermore, according to settled case-law, discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (Boyle, cited above, paragraph 39).
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75
In those circumstances, it must be held that the objectives pursued by the legislation at issue in the main proceedings could be attained through the use of less restrictive measures supervising, closely if necessary, the form and manner which the communication tools used by dentists may legitimately have, without imposing on them a general and absolute prohibition of any form of advertising.
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61. Furthermore, the Court held in Mahagében and Dávid , paragraphs 61 to 65, that the tax authorities cannot, as a general rule, require the taxable person wishing to exercise the right to deduct VAT, first, to ensure that the issuer of the invoice relating to the goods and services in respect of which the exercise of that right is sought has the capacity of a taxable person, that he was in possession of the goods at issue and was in a position to supply them and that he has satisfied his obligations as regards declaration and payment of VAT, in order to be satisfied that there are no irregularities or fraud at the level of the traders upstream, or, second, to be in possession of documents in that regard.
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64. To that end, Directive 2006/112 imposes, in particular in Article 242, an obligation on every taxable person to keep accounts in sufficient detail for VAT to be applied and its application checked by the tax authorities. In order to facilitate the performance of that task, Articles 245 and 249 of that directive provide for the right of the competent authorities to access the invoices which the taxable person is obliged to store under Article 244 of that directive.
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37. An interpretation which permitted the subsidising of exports of products which did not meet the marketing standards applying within the Community would mean that there was inconsistency in the Community system of export refunds, as the Court has already stated in paragraph 31 of SEPA .
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43
According to the case-law of the Court, Article 191(1) TFEU authorises the adoption of measures relating solely to certain specified aspects of the environment, provided that such measures contribute to the preservation, protection and improvement of the quality of the environment (see judgments of 14 July 1998, Safety Hi-Tech, C‑284/95, EU:C:1998:352, paragraph 45, and of 14 July 1998, Bettati, C‑341/95, EU:C:1998:353, paragraph 43).
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43 It follows that Article 130r(1) of the Treaty authorises the adoption of measures relating solely to certain specified aspects of the environment, provided that such measures contribute to the preservation, protection and improvement of the quality of the environment
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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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59. However, it cannot be denied that the withdrawal of that advantage constitutes a clear disadvantage in terms of cash-flow. In this connection, the Court has repeatedly held that the exclusion of a cash-flow advantage in a cross-border situation where it is available in an equivalent domestic situation is a restriction on the freedom of establishment (see, to that effect, inter alia, Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraphs 44, 54 and 76; Case C-436/00 X and Y [2002] ECR I-10829, paragraphs 36 to 38; Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 32; and Case C-347/04 Rewe Zentralfinanz [2007] ECR I-2647, paragraph 29).
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38 Second, as regards type B share transfers, the national provision at issue in the main proceedings constitutes a restriction within the meaning of Article 43 EC on the freedom of establishment of a company, established in another Member State (in the present case, a Belgian limited company), and treated, within the meaning of Article 48 EC, in the same way as a natural person who is a national of that Member State who wishes to pursue his activities through the intermediary of a branch in the Member State concerned (see inter alia Case C-250/95 Futura Participations and Singer [1997] ECR I-2471, paragraph 24, and Case C-307/97 Saint-Gobain ZN [1999] ECR I-6161, paragraph 35). Acceptance, in the present case, of the proposition that the Member State concerned may refuse the benefit of deferring capital gains tax, thus depriving the transferor of a cash flow advantage, by reason of the fact that the parent company of the transferee company is situated in another Member State would deprive Article 43 EC of all meaning (Joined cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 42).
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33. Regulation No 1768/92 thus seeks to make up for that insufficiency by creating an SPC for medicinal products. As is apparent from the ninth recital, the regulation acknowledges, in addition to that objective, the need, in a sector as complex and sensitive as the pharmaceutical sector, to take into account all the interests at stake, including public health, by ensuring that the monopoly on exploitation thus guaranteed does not exceed that which is necessary to cover the investment and does not unduly delay the moment when the product in question comes into the public domain (see, to that effect, AHP Manufacturing , cited above, paragraphs 30 and 39).
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44. Although the possibility cannot be ruled out that a newspaper publisher may itself employ, in its products or in other media, a commercial practice which may be classified as unfair in relation to the consumer concerned, in this case the reader, for example, by offering the chance of winning a prize in games, puzzles or competitions, thereby encouraging the consumer to purchase the product concerned, namely a newspaper (see, in that regard, in the context of Article 30 EC, now Article 36 TFEU, Case C‑368/95 Familiapress [1997] ECR I‑3689, paragraph 28), it must be remembered that point 11 of Annex I to Directive 2005/29 is not intended as such to require newspaper publishers to prevent possible unfair commercial practices by advertisers for which a direct connection could thereby be potentially established with the promotion, sale or supply to consumers of the products or services of those advertisers.
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28 To that end, it should be determined, first, whether newspapers which offer the chance of winning a prize in games, puzzles or competitions are in competition with those small press publishers who are deemed to be unable to offer comparable prizes and whom the contested legislation is intended to protect and, second, whether such a prospect of winning constitutes an incentive to purchase capable of bringing about a shift in demand.
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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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33 As regards the limitation in time of the effects of Article 119 of the Treaty, it should be recalled first that, in Case 43/75 Defrenne v Sabena [1976] ECR 455 (`Defrenne II'), paragraph 40, the Court held that the principle of equal pay contained in Article 119 may be relied upon before the national courts and that those courts have a duty to ensure protection of the rights which that provision vests in individuals. However, in paragraphs 74 and 75 of the same judgment, the Court made it clear that, by virtue of overriding considerations of legal certainty affecting all the interests involved, both public and private, the direct effect of Article 119 could not be relied on in order to support claims relating to pay periods prior to the date of that judgment, namely 8 April 1976, except as regards those workers who had already brought legal proceedings or made an equivalent claim.
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74 IN THESE CIRCUMSTANCES , IT IS APPROPRIATE TO DETERMINE THAT , AS THE GENERAL LEVEL AT WHICH PAY WOULD HAVE BEEN FIXED CANNOT BE KNOWN , IMPORTANT CONSIDERATIONS OF LEGAL CERTAINTY AFFECTING ALL THE INTERESTS INVOLVED , BOTH PUBLIC AND PRIVATE , MAKE IT IMPOSSIBLE IN PRINCIPLE TO REOPEN THE QUESTION AS REGARDS THE PAST .
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60. In this respect it need only be stated that, in connection with rules similar to the Portuguese rules criticised by the Commission, and faced with defence arguments similar to those submitted by the Portuguese Government, the Court has ruled that national legislation which makes the provision of certain services on national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation constitutes a restriction on the freedom to provide services within the meaning of Article 49 EC. Such a restriction cannot be justified since, by excluding consideration of the obligations to which the transfrontier service provider is already subject in the Member State in which it is established, it goes in any event beyond what is necessary to attain the objective sought, namely to ensure close supervision of those activities ( Commission v Belgium , paragraphs 35 to 38).
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13. According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-143/02 Commission v Italy [2003] ECR I-2877, paragraph 11; and Case C-446/01 Commission v Spain [2003] ECR I-6053, paragraph 15).
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11. It suffices to point out, in that regard, that according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia , Case C-148/00 Commission v Italy [2001] ECR I-9823, paragraph 7) and that a Member State cannot rely on provisions, practices or circumstances in its own legal order to justify failure to implement a directive within the prescribed period (see, to that effect, Case C-276/98 Commission v Portugal [2001] ECR I-1699, paragraph 20 and Case C-392/01 Commission v Spain [2002] ECR I-11111, paragraph 9).
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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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17. That is the case in particular where the problem referred to the Court is purely hypothetical or where the interpretation of a Community rule which is sought by the national court has no relation to the actual facts of the main action or to its purpose. Thus, the Court has declined jurisdiction where it was obvious that the provision of Community law referred to the Court for interpretation was incapable of applying (Case C-567/07 Woningstichting Sint Servatius [2009] ECR I-9021, paragraph 43 and the case-law cited).
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43. That is the case in particular where the problem referred to the Court is purely hypothetical or where the interpretation of a Community rule which is sought by the national court has no relation to the actual facts of the main action or to its purpose (see, to that effect, Case C‑415/93 Bosman [1995] ECR I-4921, paragraph 61; Case C‑466/04 Acereda Herrera [2006] ECR I-5341, paragraph 48; and Case C‑380/05 Centro Europa 7 [2008] ECR I-349, paragraph 53). Thus, the Court has declined jurisdiction where it was obvious that the provision of Community law referred to the Court for interpretation was incapable of applying (Case C-85/95 Reisdorf [1996] ECR I‑6257, paragraph 16 and the case-law cited).
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47. Selon une jurisprudence constante, l’infliction d’une astreinte ne se justifie, en principe, que pour autant que perdure le manquement tiré de l’inexécution d’un précédent arrêt jusqu’à l’examen des faits par la Cour (arrêt Commission/Grèce, C‑378/13, EU:C:2014:2405, point 47).
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41. Par ailleurs, et en tout état de cause, un État membre ne saurait exciper de dispositions, pratiques ou situations de son ordre juridique interne pour justifier l’inobservation des obligations résultant du droit de l’Union (voir, notamment, arrêts du 10 avril 2003, Commission/France, C‑114/02, Rec. p. I‑3783, point 11, et du 23 avril 2009, Commission/Espagne, C‑321/08, point 9).
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11. It must be added that, according to equally settled case-law, a Member State may not seek to rely on provisions, practices or circumstances in its internal legal order in order to justify failure to comply with the obligations and time-limits laid down in a directive (see, in particular, Case C-276/98 Commission v Portugal [2001] ECR I-1699, paragraph 20, and Case C-351/01 Commission v France [2002] ECR I-8101, paragraph 9).
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7 ATTENDU QU ' AUX TERMES DE L ' ARTICLE 177 LA COUR EST COMPETENTE POUR STATUER , A TITRE PREJUDICIEL , SUR L ' INTERPRETATION DES ACTES PRIS PAR LES INSTITUTIONS DE LA COMMUNAUTE , INDEPENDAMMENT DU FAIT QU ' ILS SOIENT DIRECTEMENT APPLICABLES OU NON ;
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23. Lastly, as regards the first question referred, it is settled case-law that the assessment of the compatibility of aid measures or of an aid scheme with the common market falls within the exclusive competence of the Commission, subject to review by the Court (Case C-354/90 FNCE [1991] ECR I‑5505, paragraph 14; Case C-39/94 SFEI and Others [1996] ECR I‑3547, paragraph 42; and Piaggio , paragraph 31). Consequently, a national court or tribunal may not, in a reference for a preliminary ruling under Article 234 EC, ask the Court for guidance as to the compatibility with the common market of a given State aid or an aid scheme (order in Case C‑297/01 Sicilcassa and Others [2003] ECR I-7849, paragraph 47).
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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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106 In view of the considerable social importance of sporting activities and in particular football in the Community, the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players must be accepted as legitimate.
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76. Thus, a person who is ipso facto entitled to the benefits of Directive 2004/83 is not necessarily required to show that he has a well-founded fear of being persecuted within the meaning of Article 2(c) of the directive, but must nevertheless submit – as did the applicants in the main proceedings – an application for refugee status, which must be examined by the competent authorities of the Member State responsible. In carrying out that examination, those authorities must verify not only that the applicant actually sought assistance from UNRWA (see, in that regard, Bolbol , paragraph 52), and that the assistance has ceased but also that the applicant is not caught by any of the grounds for exclusion laid down in Article 12(1)(b) or (2) and (3) of the directive.
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52. While registration with UNRWA is sufficient proof of actually receiving assistance from it, it has been explained in paragraph 45 above that such assistance can be provided even in the absence of such registration, in which case the beneficiary must be permitted to adduce evidence of that assistance by other means.
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18 Consequently, Note 5(B) to the Combined Nomenclature does not preclude network cards from being classified under heading No 8471.
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21. As regards more particularly the principle of proportionality, the Court has already held that, in accordance with that principle, the Member States must employ means which, whilst enabling them effectively to attain the objectives pursued by their domestic laws, cause the least possible detriment to the objectives and principles laid down by the relevant European Union legislation (see, inter alia, Case C‑409/04 Teleos and Others [2007] ECR I‑7797, paragraph 52, and Netto Supermarkt , paragraph 19).
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52. Secondly, as regards the principle of proportionality, it must be recalled that the Court held, in paragraph 46 of its judgment in Molenheide and Others , that, in accordance with that principle, the Member States must employ means which, whilst enabling them effectively to attain the objectives pursued by their domestic laws, cause the least possible detriment to the objectives and principles laid down by the relevant Community legislation.
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18. Or, toute interprétation divergente au niveau national des obligations d’exonération prévues par la directive 2003/96 non seulement porterait atteinte à l’objectif d’harmonisation de la réglementation de l’Union et à la sécurité juridique, mais risquerait d’introduire des inégalités de traitement entre les opérateurs économiques concernés (voir, en ce sens, arrêts du 1 er avril 2004, Deutsche See-Bestattungs-Genossenschaft, C‑389/02, Rec. p. I-3537, point 21, et du 1 er mars 2007, Jan De Nul, C‑391/05, Rec. p. I-1793, point 23).
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53. As regards, more specifically, the objectives to which the national court and the claimants in the main proceedings have drawn attention, the Court has consistently held that the purpose of the levy system is to re‑establish, by limiting milk production, the balance between supply and demand in the milk market, which is characterised by structural surpluses. That purpose therefore falls within the ambit of the objectives of rational development of milk production and, by contributing to a stabilisation of the income of the agricultural community affected, that of ensuring a fair standard of living for the agricultural community (Joined Cases C‑480/00 to C-482/00, C-484/00, C-489/00 to C-491/00, and C‑497/00 to C‑499/00 Azienda Agricola Ettore Ribaldi and Others [2004] ECR I‑2943, paragraph 57 and the case‑law cited).
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57. As regards the principle of proportionality, it must first be noted that the purpose of the additional levy system is to re-establish, by limiting milk production, the balance between supply and demand in the milk market, which is characterised by structural surpluses. This measure, therefore, is within the ambit of the objectives of rational development of milk production and, by contributing to a stabilisation of the income of the agricultural community affected, that of ensuring a fair standard of living for the agricultural community (Case 84/87 Erpelding [1988] ECR 2647, paragraph 26).
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20. Ainsi, un manquement d’un État membre peut être en principe constaté au titre de l’article 226 CE quel que soit l’organe de cet État dont l’action ou l’inaction est à l’origine du manquement, même s’il s’agit d’une institution constitutionnellement indépendante (arrêts du 5 mai 1970, Commission/Belgique, 77/69, Rec. p. 237, point 15, et du 9 décembre 2003, Commission/Italie, C-129/00, Rec. p. I-14637, point 29).
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40. In the absence of EU legislation in this area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. However, such procedural rules must not be less favourable than those governing similar domestic situations (principle of equivalence) and must not be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see judgments in Fallimento Olimpiclub , C‑2/08, EU:C:2009:506, paragraph 24, and Impresa Pizzarotti , C‑213/13, EU:C:2014:2067, paragraph 54 and the case-law cited).
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24. In the absence of Community legislation in this area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence); nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by Community law (principle of effectiveness) (see, to that effect, Kapferer , paragraph 22).
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28. Therefore, the consideration for the price paid when the ticket was purchased consists of the passenger’s right to benefit from the performance of obligations arising from the transport contract, regardless of whether the passenger exercises that right, since the airline company fulfils the service by enabling the passenger to benefit from those services.
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36. Those principles must also be observed and have the same consequences where, for its implementation, EU legislation obliges Member States to adopt measures imposing obligations on individuals. Such measures must therefore be published so that the latter can become aware of them (see, to that effect, Case C-313/99 Mulligan and Others [2002] ECR I-5719, paragraphs 51 and 52). The individuals concerned must also have the possibility of determining the source of the national measures imposing obligations upon them. Accordingly, not only must the national legislation be published but also the measure of EU law which obliges the Member States to take measures imposing obligations on individuals (see, to that effect, Case C-345/06 Heinrich [2009] ECR I-1659, paragraphs 45 to 47).
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52 As is clear from the case-law cited in paragraph 47 above, the reason why the principle of legal certainty, as a general principle of Community law, requires appropriate publicity of measures adopted by the Member States in implementation of an obligation under Community law is the obvious need to ensure that persons concerned by such measures are able to ascertain the scope of their rights and obligations in the particular area governed by Community law.
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46. Cette disposition de l’article 65 TFUE, en tant qu’elle constitue une dérogation au principe fondamental de la libre circulation des capitaux, doit faire l’objet d’une interprétation stricte. Partant, elle ne saurait être interprétée en ce sens que toute législation fiscale comportant une distinction entre les contribuables en fonction du lieu où ils résident ou de l’État membre dans lequel ils investissent leurs capitaux est automatiquement compatible avec le traité FUE. En effet, la dérogation prévue à l’article 65, paragraphe 1, sous a), TFUE est elle-même limitée par le paragraphe 3 du même article, qui prévoit que les dispositions nationales visées audit paragraphe 1 «ne doivent constituer ni un moyen de discrimination arbitraire ni une restriction déguisée à la libre circulation des capitaux et des paiements telle que définie à l’article 63 [TFUE]» (voir, en ce sens, arrêt Welte, EU:C:2013:662, points 42 et 43 et jurisprudence citée).
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24. Par ailleurs, la Cour a jugé que l’objectif de la directive 85/337 ne saurait être détourné par le fractionnement d’un projet et que l’absence de prise en considération de l’effet cumulatif de plusieurs projets ne doit pas avoir pour résultat pratique de les soustraire dans leur totalité à l’obligation d’évaluation alors que, pris ensemble, ils sont susceptibles d’avoir des «incidences notables sur l’environnement», au sens de l’article 2, paragraphe 1, de la directive 85/337 (voir, en ce sens, arrêts précités Ecologistas en Acción-CODA, point 44, et Umweltanwalt von Kärnten, point 53).
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44. Lastly, as the Court has already noted with regard to Directive 85/337, the purpose of the amended directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the amended directive (see, as regards Directive 85/337, Case C-392/96 Commission v Ireland [1999] ECR I‑5901, paragraph 76, and Abraham and Others , paragraph 27).
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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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136 The Court has thus held that the principle of national treatment requires a Member State which is a party to a bilateral international treaty with a non-member country for the avoidance of double taxation to grant to permanent establishments of companies resident in another Member State the advantages provided for by that treaty on the same conditions as those which apply to companies resident in the Member State that is party to the treaty (see Saint-Gobain, paragraph 59, and judgment of 15 January 2002 in Case C-55/00 Gottardo v INPS [2002] ECR I-413, paragraph 32).
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32 With regard to a bilateral international treaty concluded between a Member State and a non-member country for the avoidance of double taxation, the Court has pointed out that, although direct taxation is a matter falling within the competence of the Member States alone, the latter may not disregard Community rules but must exercise their powers in a manner consistent with Community law. The Court accordingly ruled that the national treatment principle requires the Member State that is party to such a treaty to grant to permanent establishments of companies resident in another Member State the advantages provided for by the agreement on the same conditions as those which apply to companies resident in the Member State that is party to the treaty (see, in this connection, Case C-307/97 Saint-Gobain ZN [1999] ECR I-6161, paragraphs 57 to 59).
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42 Contrary to the Commission's submissions, it is the mere failure to authenticate an act which constitutes the infringement of an essential procedural requirement and it is not necessary also to establish that the act is vitiated by some other defect or that the lack of authentication resulted in harm to the person relying on it.
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46. It is thus clear from case-law that, whatever the mechanism adopted for preventing or mitigating the imposition of a series of charges to tax or economic double taxation, the freedoms of movement guaranteed by the Treaty preclude a Member State from treating foreign-sourced dividends less favourably than nationally-sourced dividends, unless such a difference in treatment concerns situations which are not objectively comparable or is justified by overriding reasons in the general interest (see, to that effect, Case C‑315/02 Lenz [2004] ECR I‑7063, paragraphs 20 to 49, and Case C‑319/02 Manninen [2004] ECR I‑7477, paragraphs 20 to 55). Likewise, as regards the decisions which Directive 90/435 leaves in the hands of the Member States, the Court has pointed out that these may be exercised only in compliance with the fundamental provisions of the Treaty, in particular those relating to freedom of establishment ( Keller Holding , paragraph 45).
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46. Having regard to the objective pursued by the Finnish tax legislation, the cohesion of that tax system is assured as long as the correlation between the tax advantage granted in favour of the shareholder and the tax due by way of corporation tax is maintained. Therefore, in a case such as that at issue in the main proceedings, the granting to a shareholder who is fully taxable in Finland and who holds shares in a company established in Sweden of a tax credit calculated by reference to the corporation tax owed by that company in Sweden would not threaten the cohesion of the Finnish tax system and would constitute a measure less restrictive of the free movement of capital than that laid down by the Finnish tax legislation.
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19 In Vroege (paragraphs 20 to 27) and Fisscher (paragraphs 17 to 24) the Court stated that the limitation of the effects in time of the Barber judgment concerned only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions, in particular those of Directive 86/378.
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32. As regards the principle of protection of the legitimate expectations of the beneficiary of the favourable conduct, it is appropriate, first, to determine whether the conduct of the administrative authorities gave rise to a reasonable expectation in the mind of a reasonably prudent economic agent (see, to that effect, Joined Cases 95/74 to 98/74, 15/75 and 100/75 Union nationale des coopératives agricoles de céréales and Others v Commission and Council [1975] ECR 1615, paragraphs 43 to 45, and Case 78/77 Lührs [1978] ECR 169, paragraph 6). If it did, the legitimate nature of this expectation must then be established.
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44 AMONGST THE RISKS WHICH COULD BE FORESEEN ON 30 MARCH OR AT THE LATEST ON 20 APRIL, THIS BEING THE DATE OF THE ISSUE OF THE CERTIFICATE AND A DATE ON WHICH IT COULD STILL HAVE WITHDRAWN ITS APPLICATION, THERE WAS THE PROBABILITY OF A CHANGE IN THE METHOD OF CALCULATING THE COMPENSATORY AMOUNTS .
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60
Admittedly, in the exercise of that power the Member States may not introduce or maintain unjustified restrictions on the exercise of fundamental freedoms in the area of health care. However, in the assessment of compliance with that prohibition, account must be taken of the fact that the health and life of humans rank foremost among the assets or interests protected by the Treaty and it is for the Member States, which have a discretion in the matter, to decide on the degree of protection which they wish to afford to public health and on the way in which that degree of protection is to be achieved (judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 56 and the case-law cited).
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273. It is apparent from settled case-law that the gravity of the infringements of EU competition law must be assessed in the light of numerous factors, such as, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (see, in particular, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 241; Dalmine v Commission , paragraph 129; and Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 54).
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241. The gravity of the infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (see, in particular, Limburgse Vinyl Maatschappij and Others v Commission , paragraph 465).
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53 Furthermore, the 33rd recital in the preamble shows that the Directive aims to ensure a minimum level of transparency in the award of the contracts to which it applies.
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46. Consequently, legislation of a Member State, such as that at issue in the main proceedings, which makes the exercise of an economic activity subject to a licensing requirement and which specifies situations in which the licence is to be withdrawn, constitutes an obstacle to the freedoms thus guaranteed by Articles 49 TFEU and 56 TFEU (see judgment in Costa and Cifone , EU:C:2012:80, paragraph 70).
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53. That is not the case, however, if the market positions acquired by the existing operators are protected by the national legislation. The very fact that the existing operators have been able to start up several years earlier than the operators unlawfully excluded, and have accordingly been able to establish themselves on the market with a certain reputation and a measure of customer loyalty, confers on them an unfair competitive advantage. To grant the existing operators even greater competitive advantages over the new licence holders has the consequence of entrenching and exacerbating the effects of the unlawful exclusion of the latter from the 1999 tendering procedure, and accordingly constitutes a new breach of Articles 43 EC and 49 EC and of the principle of equal treatment. Such a measure also makes it excessively difficult to exercise the rights conferred by EU law on operators unlawfully excluded from the 1999 tendering procedure and, as a consequence, is inconsistent with the principle of effectiveness.
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24. As regards the specified nature of the channels which may be covered by ‘must carry’ status, it is apparent from the wording of Article 31(1) of the Universal Service Directive that Member States must specify which channels are to be granted ‘must carry’ status.
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58 In any event, Article 8(1) of Regulation No 3118/93 provides that Member States are to assist one another in applying that regulation. If the German authorities had doubts as to the lawfulness of cabotage authorisations issued by the Luxembourg authorities, it was their responsibility to refer that question to those authorities so that, if need be, the latter could re-examine the situation. In their capacity as authorities of the host Member State, the German authorities were, however, not entitled to decline to recognise cabotage authorisations issued by the Member State of establishment or to impose a condition for carrying out cabotage by road not laid down by Regulation No 3118/93 (see, to that effect, Case C-202/97 FTS v Bestuur van het Landelijk Instituut Sociale Verzekeringen [2000] ECR I-883, paragraphs 51 to 56, and Case C-178/97 Banks and Others v Théâtre Royal de la Monnaie [2000] ECR I-2005, paragraphs 38 to 43).
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52 As regards the competent institutions of the Member State to which workers are posted, it is clear from the obligations to cooperate arising from Article 5 of the Treaty that these obligations would not be fulfilled - and the aims of Article 14(1)(a) of Regulation No 1408/71 and Article 11(1)(a) of Regulation No 574/72 would be thwarted - if the institutions of that Member State were to consider that they were not bound by the certificate and also made those workers subject to their own social security system.
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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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24 It is settled case-law (see in particular Compagnie Commerciale de l'Ouest and Others, cited above, paragraph 27; Lornoy and Others, cited above, paragraph 21, and Case C-72/92 Scharbatke v Germany [1993] ECR I-5509, paragraph 10) that if the advantages stemming from the use of the revenue from a charge forming part of a general system of internal charges applying systematically to domestic and imported products fully offset the burden borne by the domestic product when it is placed on the market, that charge constitutes a charge having an effect equivalent to a customs duty, contrary to Articles 9 and 12 of the Treaty. On the other hand, if the advantages accruing to the taxed domestic products from the use of the revenue from the charge only partly offset the burden borne by those products, such a charge would constitute a breach of the prohibition of discrimination laid down by Article 95 of the Treaty.
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19 Article 95 prohibits Member States from directly or indirectly imposing on the products of other Member States any internal taxation in excess of that imposed on similar domestic products or of such a nature as to afford protection to other domestic products. The applicability of the provision in question therefore depends on whether or not the internal taxation measure is discriminatory or protective (judgment in Compagnie Commerciale de l' Ouest, cited above, paragraph 25).
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8. Il suffit de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et que les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 13 avril 2000, Commission/Luxembourg, C‑348/99, Rec. p. I‑2917, point 8, et du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9).
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37. It follows that the Finnish tax legislation makes the grant of the tax credit subject to the condition that the dividends be distributed by companies established in Finland, while shareholders fully taxable in Finland find themselves in a comparable situation, whether they receive dividends from companies established in that Member State or from companies established in other Member States (see, to that effect, Case C-107/94 Asscher [1996] ECR I‑3089, paragraphs 41 to 49, and Case C-234/01 Gerritse [2003] ECR I-5933, paragraphs 47 to 54).
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43 Thus, if a Member State refuses tax benefits linked to the taking into account of personal and family circumstances to a taxpayer who works but does not reside in its territory whilst granting them to resident taxpayers, the Court has held that there is discrimination where the non-resident receives all or almost all of his worldwide income in that State since the income received in the State in which he resides is insufficient to allow his personal and family circumstances to be taken into account. The situations of the two categories of taxpayer are in that case comparable with regard to the taking into account of their personal and family circumstances (Schumacker, paragraphs 36, 37 and 38).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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31. A national measure restricting freedom of establishment may also be justified where it is designed to combat wholly artificial arrangements, aimed at circumventing the legislation of the Member State concerned (see, to this effect, Case C‑264/96 ICI EU:C:1998:370, paragraph 26; Case C‑324/00 Lankhorst-Hohorst EU:C:2002:749, paragraph 37; Case C‑9/02 de Lasteyrie du Saillant EU:C:2004:138, paragraph 50; and Marks & Spencer EU:C:2005:763, paragraph 57).
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50. As regards justification based on the aim of preventing tax avoidance, referred to by the national court in its question, it should be noted that Article 167a of the CGI is not specifically designed to exclude from a tax advantage purely artificial arrangements aimed at circumventing French tax law, but is aimed generally at any situation in which a taxpayer with substantial holdings in a company subject to corporation tax transfers his tax residence outside France for any reason whatever (see, to that effect, ICI , paragraph 26, and X and Y , paragraph 61).
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55 It follows that the differences in development between the original and the new Länder are explained by causes other than the geographical rift caused by the division of Germany and in particular by the different politico-economic systems set up in each part of Germany.
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20
In that regard, first, Article 45 TFEU precludes any measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by EU nationals of the fundamental freedoms guaranteed by the Treaty (judgment of 6 October 2016, Adrien and Others, C‑466/15, EU:C:2016:749 paragraph 26 and the case-law cited). Consequently, a restriction of freedom of movement for persons, even of limited scope or minor importance, is prohibited by Article 45 TFEU (see, to that effect, judgment of 12 July 2012, Commission v Spain, C‑269/09, paragraph 55 and the case-law cited).
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55. Consequently, in contrast to the contentions of the Federal Republic of Germany and the Portuguese Republic, even a restriction on freedom of movement for persons which is of limited scope or minor importance is prohibited by Articles 39 EC and 43 EC (see, concerning the freedom of establishment, Case 270/83 Commission v France [1986] ECR 273, paragraph 21; Case C-34/98 Commission v France [2000] ECR I-995, paragraph 49; and de Lasteyrie du Saillant , paragraph 43).
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35AT PRESENT , COMMUNITY LAW DOES NOT HOWEVER CONTAIN ANY RULES WHICH PREVENT A MEMBER STATE FROM ALSO INCLUDING , IN THE APPLICATION OF A SYSTEM OF TAXATION INTENDED TO FINANCE THE CONTROL OF PRECIOUS METAL , PRODUCTS INTENDED FOR EXPORT .
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46. First, regarding the Joint Statement, it is settled case-law that, where a statement recorded in Council minutes is not referred to in the wording of a provision of secondary legislation, it cannot be used for the purpose of interpreting that provision (Case C-292/89 Antonissen [1991] ECR I-745, paragraph 18; Case C-104/01 Libertel [2003] ECR I-3793, paragraph 25; Case C-402/03 Skov and Bilka [2006] ECR I-199, paragraph 42, and Case C-356/05 Farrell [2007] ECR I-3067, paragraph 31).
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42. On this point, first, it must be recalled that, where a statement recorded in Council minutes is not referred to in the wording of a provision of secondary legislation, it cannot be used for the purpose of interpreting that provision (see, in particular, Case C‑292/89 Antonissen [1991] ECR I‑745, paragraph 18, and Case C‑375/98 Epson Europe [2000] ECR I‑4243, paragraph 26).
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34. In the light of the objectives of proximity and predictability, the Court held that the rule set out in the first indent of Article 5(1)(b) of Regulation No 44/2001 is also applicable where there are several places of delivery of goods within a single Member State, since one court must have jurisdiction to hear all the claims arising out of the contract ( Color Drack, paragraphs 36 and 38).
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