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84. As is clear from Article 256 TFEU and Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only and, accordingly, the General Court alone has jurisdiction to find and appraise the facts, save where the factual inaccuracy of its findings results from the documents in the case before it. The appraisal of the facts by the General Court does not therefore constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see, inter alia, Case C‑121/01 P O’Hannrachain v Parliament [2003] ECR I‑5539, paragraph 35, and Case C‑431/07 P Bouygues and Bouygues Télécom v Commission [2009] ECR I‑2665, paragraph 137).
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35. In that connection, it must be recalled that under Article 225 EC and Article 58 of the Statute of the Court of Justice, an appeal lies on points of law only and that therefore the Court of First Instance alone has jurisdiction to find and appraise the facts, save where the factual inaccuracy of its findings results from the documents in the case before it. The appraisal of the facts by the Court of First Instance does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see, inter alia , Case C-449/99 P EIB v Hautem [2001] ECR I-6733, paragraph 44, and Case C-184/01 P Hirschfeldt v AEE [2002] ECR I-10173, paragraph 40).
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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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56. In this case, it is for the national court to determine whether Paragraph 8(3) of the VGVG has as its sole purpose the maintenance in force of the legislation on secondary residences which was applicable on 1 January 1995, or whether it includes significant differences which preclude its being covered by the derogation established by Article 70 of the Act of Accession (see, to that effect, Beck and Bergdorf , paragraph 36).
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36 It follows that, if the provisions of Section 40 of the TGVG 1996 were deemed to have as their sole purpose the maintenance of rules which were in force on 1 January 1995, they would have to be covered by the derogation introduced by Article 70 of the Act of Accession.
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63. As is apparent from the wording of that provision, in particular the use of the expression "e.g." , the criteria which may be accepted as criteria for the award of a public contract to what is the most economically advantageous tender are not listed exhaustively (see to this effect, regarding public works contracts, Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 35, and, regarding public service contracts, Case C-513/99 Concordia Bus Finland [2002] ECR I-7213, paragraph 54).
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57. As regards the particular situation relied on by the German Government, it is therefore for the Community legislature to do everything necessary to establish the definitive Community system of exemptions from VAT and thereby to bring about the progressive harmonisation of national VAT laws, which is the only means of abolishing the distortions of competition stemming from the existence of the derogating and transitional arrangements permitted by the Sixth Directive (see, to that effect, Case C-305/97 Royscot and Others [1999] ECR I‑6671, paragraph 31, and Idéal tourisme , paragraph 39).
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39 With respect to such a situation, it is for the Community legislature to establish the definitive Community system of exemptions from VAT and thereby to bring about the progressive harmonisation of national VAT laws (see, to that effect, Case C-305/97 Royscot and Others v Customs and Excise [1999] ECR I-6671, paragraph 31).
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30 TOUTEFOIS , SI L ' ENTREPRISE EST EN MESURE D ' ETABLIR QUE SA PRATIQUE SALARIALE PEUT S ' EXPLIQUER PAR DES FACTEURS OBJECTIVEMENT JUSTIFIES ET ETRANGERS A TOUTE DISCRIMINATION FONDEE SUR LE SEXE , AUCUNE VIOLATION DE L ' ARTICLE 119 NE POURRAIT ETRE DECELEE .
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34. As regards the question whether national legislation falls within the scope of one or other of the freedoms of movement, it is clear from what is now well established case-law that the purpose of the legislation concerned must be taken into consideration (see, to this effect, Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraphs 31 to 33; Case C‑452/04 Fidium Finanz [2006] ECR I‑9521, paragraphs 34 and 44 to 49; Case C‑374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I‑11673, paragraphs 37 and 38; Test Claimants in the FII Group Litigation , paragraph 36; and Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraphs 26 to 34).
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30. In the second place, in the case of the amendments made in 1998, the legislation at issue applies only where the two companies in question are subject to common control in the sense that one of them participates directly or indirectly in the management, control or capital or the other company concerned or a third party participates directly or indirectly in the management, control or capital of both the other companies concerned.
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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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68. With regard, first, to the applicability of the rules set out in Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94, it is settled case-law that, even though those provisions make express reference only to the situation in which use is made of a sign which is identical with, or similar to, a trade mark with a reputation in relation to goods or services which are not similar to those for which the trade mark is registered, the protection provided for there applies, a fortiori , also in relation to use of a sign which is identical with, or similar to, a trade mark with a reputation in relation to goods or services which are identical with or similar to those for which the mark is registered (see, inter alia, Case C‑292/00 Davidoff [2003] ECR I-389, paragraph 30; Case C‑408/01 Adidas-Salomon and Adidas Benelux [2003] ECR I-12537, paragraphs 18 to 22, and Google France and Google , paragraph 48).
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19. In Davidoff (paragraphs 24 and 25), the Court observed in support of its interpretation that, in the light of the overall scheme and objectives of the system of which Article 5(2) of the Directive is part, that article cannot be given an interpretation which would lead to marks with a reputation having less protection where a sign is used for identical or similar goods or services than where a sign is used for non-similar goods or services. It went on to hold, in other words, that where the sign is used for identical or similar goods or services, a mark with a reputation must enjoy protection which is at least as extensive as where a sign is used for non-similar goods or services (Davidoff , paragraph 26).
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37. As a branch, FCE IT does not have any endowment capital. Consequently, the risk associated with the economic activity lies wholly with the FCE Bank. Consequently, FCE IT is dependent upon that company and, with it, constitutes a single taxable person.
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48
It is appropriate to recall that the principle of legal certainty does not preclude the tax authorities from carrying out, within the limitation period, an assessment for VAT relating to the deducted tax or to services already provided and which should have been subject to VAT (see, to that effect, judgments of 6 February 2014, Fatorie, C‑424/12, EU:C:2014:50, paragraphs 47 and 48, and of 9 July 2015, Cabinet Medical Veterinar Dr. Tomoiagă Andrei, C‑144/14, EU:C:2015:452, paragraph 42).
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48. It must be conceded that such rules, the clarity of which and the predictability of which for the taxable person have not been seriously called into question, comply with the principle of legal certainty.
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32. Accordingly, the obligation under Article 203 of that directive seeks to eliminate the risk of loss of tax revenue which the right of deduction provided for in Article 167 et seq. of the directive might entail (see Stadeco , paragraph 28).
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14 It must be emphasised that whilst it is for the Commission to prove that an infringement of the rules on the common organisation of the agricultural markets has occurred (see Greece v Commission, cited above, paragraph 7, and Netherlands v Commission, cited above, paragraph 39), the burden of providing such proof has been defined by the Court having regard to the fact that it is the Member State which is best placed to collect and verify the data required for the clearance of EAGGF accounts (Greece v Commission, cited above, paragraphs 8 and 9, and Netherlands v Commission, cited above, paragraphs 40 and 41).
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7 As the Court has held, only intervention undertaken in accordance with the Community rules within the framework of the common organisation of agricultural markets is to be financed by the EAGGF (see Case C-253/97 Italy v Commission [1999] ECR I-7529, paragraph 6). In that context, it is for the Commission to prove an infringement of the rules on the common organisation of the agricultural markets (see Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 19; Case C-55/91 Italy v Commission [1993] ECR I-4813, paragraph 13; and Case C-253/97, cited above, paragraph 6). Accordingly, the Commission is obliged to give reasons for its decision finding an absence of, or defects in, inspection procedures operated by the Member State in question (Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraph 23).
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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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32. In that connection, it follows from the case-law of the Court that the term ‘public’ in Article 3(1) of Directive 2001/29 refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (see, to that effect, SGAE , paragraphs 37 and 38 and the case‑law cited).
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37. The Court has held that, in the context of this concept, the term ‘public’ refers to an indeterminate number of potential television viewers (Case C‑89/04 Mediakabel [2005] ECR I‑4891, paragraph 30, and Case C-192/04 Lagardère Active Broadcast [2005] ECR I‑7199, paragraph 31).
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57 Regarding aid in the course of implementation the payment of which is continuing and which the Member State regards as existing aid, the contrary classification as new aid, even if provisional, adopted by the Commission in its decision to initiate the procedure under Article 88(2) EC in relation to that aid, has independent legal effects.
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31
However, according to the case-law of the Court, relating to several areas other than VAT law, the imposition of such costs can be challenged in the light of the right to an effective remedy guaranteed by Article 47 of the Charter only where those costs represent an insurmountable obstacle (see, by analogy, judgment of 22 December 2010 in DEB, C‑279/09, EU:C:2010:811, paragraph 61, and order of 13 June 2012 in GREP, C‑156/12, not published, EU:C:2012:342, paragraph 46) or where they make it in practice impossible or excessively difficult to exercise the rights conferred by the EU legal order (see, by analogy, judgment of 6 October 2015 in Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraphs 48, 49 and 58).
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49. Accordingly, Article 1 of Directive 89/665 must be interpreted in the light of the fundamental rights set out in the Charter, in particular the right to an effective remedy before a court or tribunal, laid down in Article 47 thereof (see, to that effect, judgment in Ryneš , C‑212/13, EU:C:2014:2428, paragraph 29).
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15 It should be pointed out that the mere fact that there is only one producer in the reference country does not in itself preclude the prices there from being the result of genuine competition, since such competition may just as well result, in the absence of price controls, from the presence of significant imports from other countries. As may be seen from the 11th recital in the preamble to Regulation No 1531/88 - and this has not been contested - the American market in potassium permanganate receives substantial imports from other countries.
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37. It should be noted, first of all, that the deduction scheme is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see Rompelman , paragraph 19; Case C‑37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 15; Gabalfrisa , cited above, paragraph 44; Case C‑98/98 Midland Bank [2000] ECR I‑4177, paragraph 19; and Abbey National , paragraph 24). Given the general nature of that right, derogations are permitted only in the cases expressly provided for in the Directive (see, to that effect, Ghent Coal Terminal , cited above, paragraph 16).
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15 With regard to the first part of this question, the Court has stated repeatedly that the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of value added tax consequently ensures that all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT, are taxed in a wholly neutral way (see in particular Case 268/83 Rompelman v Minister van Financiën [1985] ECR 655, paragraph 19, and Case 50/87 Commission v France [1988] ECR 4797, paragraph 15).
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68. By contrast, the 25% threshold refers to ‘total production of the like product produced by the Community industry’ and relates to the percentage of Community producers out of that total production which support the complaint. That 25% threshold alone is therefore relevant to determining whether those producers represent a ‘major proportion’ of the total production of the like product produced by the Community industry within the meaning of Article 4(1) of the basic regulation.
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63. The aim of the Directive is not only to improve the protection of workers against accidents at work and the prevention of occupational risks; it is also intended to introduce specific measures to organise that protection and prevention. It thus states a number of means regarded by the Community legislature as being suitable to facilitate achievement of the set purpose ( Commission v Netherlands , cited above, paragraph 38). If the latter had intended to limit the scope of the first subparagraph of Article 8(2) of the Directive by providing, in respect of undertakings of a given size or carrying on certain activities, for a restriction on the obligation of designation of workers responsible for the activities in question, it would have stated so expressly.
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38. As the title itself shows, the Directive is intended to introduce measures to encourage improvements in the safety and health of workers at work. Contrary to what the Netherlands Government claims, the aim of the Directive is not solely to improve the protection of workers against accidents at work and the prevention of occupational risks; it is also intended to introduce specific measures to organise that protection and prevention. It thus states a number of means regarded by the Community legislature as being suitable to facilitate achievement of the set purpose.
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En outre, dans la mesure où les requérantes font valoir que la Commission aurait adopté une approche différente concernant
les sanctions imposées dans d’autres cas d’ententes, il suffit de rappeler, ainsi que la Cour l’a itérativement jugé, que
la pratique décisionnelle antérieure de la Commission ne sert pas de cadre juridique aux amendes en matière de concurrence
(arrêt du 10 juillet 2014, Telefónica et Telefónica de España/Commission, C‑295/12 P, EU:C:2014:2062, point 189 ainsi que
jurisprudence citée).
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53. Thus, according to settled case-law, the national rules establishing the conditions for national qualifications, even when applied in an indiscriminate manner in relation to nationality, may infringe the exercise of those fundamental freedoms if the national rules at issue fail to take account of learning, skills and qualifications already acquired by the person concerned in another Member State (see judgments in, Vlassopolou , C‑340/89, EU:C:1991:193, paragraph 15; Morgenbesser , C‑313/01, EU:C:2003:612, paragraph 62; and Peśla , C‑345/08, EU:C:2009:771, paragraph 36).
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62. As the Court has already held, the exercise of the right of establishment is hindered if national rules fail to take account of learning, skills and qualifications already acquired by the person concerned in another Member State, so that the competent national authorities must measure whether such factors sufficiently demonstrate that missing learning and skills have been acquired ( Vlassopoulou , paragraphs 15 and 20; Fernández de Bobadilla , paragraph 33).
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53
The principle of case-law established by the judgments of 4 July 2013, Fastweb (C‑100/12, EU:C:2013:448) and 5 April 2016, PFE (C‑689/13, EU:C:2016:199) applies to the situation at issue in the main proceedings.
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69
In that regard, the Court has explained that, in order to be classified as ‘other requirements’ within the meaning of that provision, the national measures at issue must constitute conditions which can significantly influence the composition or nature of the product concerned or its marketing, since requirements of a general nature cannot amount to such conditions or, consequently, be classified as ‘other requirements’ (see judgment of 10 July 2014, Ivansson and Others, C‑307/13, EU:C:2014:2058, paragraph 26 and 27 and the case-law cited).
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26. In that regard, the Court has already held that, in order to be classified as ‘other requirements’ within the meaning of Article 1(4) of Directive 98/34, the national measures at issue must constitute ‘conditions’ which can significantly influence the composition or nature of the product concerned or its marketing (see judgment in Fortuna and Others , EU:C:2012:495, paragraph 35 and the case-law cited).
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20. Il y a lieu de rappeler que l’article 49 CE s’oppose à toute réglementation nationale ayant pour effet de rendre la prestation de services entre les États membres plus difficile que la prestation de services purement interne à un État membre (voir arrêts du 8 septembre 2005, Mobistar et Belgacom Mobile, C‑544/03 et C‑545/03, Rec. p. I‑7723, point 30 et jurisprudence citée, ainsi que du 18 juillet 2007, Commission/Italie, C‑134/05, Rec. p. I‑6251, point 70).
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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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29. As regards the Hellenic Republic’s argument concerning the difficulties it had been facing in connection with the closure and cleaning up of all the illegal landfills at issue, it should be recalled that, according to settled case-law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under EU law (see judgment in Commission v Italy , C‑496/09, EU:C:2011:740, paragraph 87 and case-law cited; see also, to that effect, judgment in Commission v Spain , C‑278/01, EU:C:2003:635, paragraph 31). In the light of that case-law, the Hellenic Republic’s argument cannot succeed.
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109. Secondly, it must be noted that, unlike, for example, investment aid, the purpose of this type of scheme is to support the operation of installations producing green electricity once they become active. In that regard, the quota obligation is designed in particular to guarantee green electricity producers a demand for the certificates they have been awarded and in that way to facilitate the sale of the green energy that they produce at a price higher than the market price for conventional energy.
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33. In such circumstances, the question referred must be declared inadmissible to the extent that it seeks an interpretation of the EU competition rules (see, by analogy, inter alia, Duomo Gpa and Others , paragraph 24, and Joined Cases C‑162/12 and C‑163/12 Airport Shuttle Express and Others [2014] ECR, paragraphs 37 to 42).
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40. In such circumstances, the questions referred must be declared inadmissible to the extent that they seek an interpretation of those provisions (see, by analogy, inter alia, Duomo Gpa and Others , paragraph 24).
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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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22. Indeed, in accordance with settled case-law, a national measure in an area which has been the subject of exhaustive harmonisation at European Union level must be assessed in the light of the provisions of that harmonising measure and not in the light of those of the Treaty (Case C‑322/01 Deutscher Apothekerverband [2003] ECR I‑14887, paragraph 64, and Case C‑205/07 Gysbrechts and Santurel Inter [2008] ECR I‑9947, paragraph 33).
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64. A national measure in a sphere which has been the subject of exhaustive harmonisation at Community level must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty (see 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). However, the power conferred on Member States by Article 14(1) of Directive 97/7 must be exercised with due regard for the Treaty, as is expressly stated in that provision.
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30. Moreover, contrary to the line of argument put forward by the Danish Government, which has submitted observations in these proceedings in support of the Konkurrencerådet’s position in the main proceedings, the fact that the practice of a dominant undertaking may, like the pricing policy in issue in the main proceedings, be described as ‘price discrimination’, that is to say, charging different customers or different classes of customers different prices for goods or services whose costs are the same or, conversely, charging a single price to customers for whom supply costs differ, cannot of itself suggest that there exists an exclusionary abuse.
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67. In that respect, it must be noted that, in accordance with the case-law of the Court, as soon as a Member State, either unilaterally or by way of a convention, imposes a charge to tax on the income, not only of resident taxpayers, but also of non-resident taxpayers, from dividends which they receive from a resident company, the situation of those non-resident taxpayers becomes comparable to that of the resident taxpayers (see, to that effect, judgments in Denkavit Internationaal and Denkavit France , C‑170/05, EU:C:2006:783, paragraph 35; Commission v Italy , C‑540/07, EU:C:2009:717, paragraph 52; Commission v Spain , C‑487/08, EU:C:2010:310, paragraph 51; Commission v Germany , C‑284/09, EU:C:2011:670, paragraph 56; and order in Tate & Lyle Investments , C‑384/11, EU:C:2012:463, paragraph 31).
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51. However, as soon as a Member State, either unilaterally or by way of a convention, imposes a charge to tax on the income, not only of resident shareholders, but also of non-resident shareholders, from dividends which they receive from a resident company, the situation of those non-resident shareholders becomes comparable to that of resident shareholders ( Test Claimants in Class IV of the ACT Group Litigation , paragraph 68; Denkavit Internationaal and Denkavit France , paragraph 35; Amurta , paragraph 38; and Commission v Italy , paragraph 52).
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57 It is for the Court, where it exercises the power to limit the effect on past events of a declaration in preliminary ruling proceedings that a Community regulation is invalid, to decide whether an exception to that temporal limitation of the effect of its judgment is to be made in favour of the party to the main proceedings which brought an action before the national court against the national measure implementing the regulation, or whether, conversely, a declaration of invalidity applicable only to the future is an adequate remedy even for that party.
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37. Thus the Court ruled, first, that the children of a citizen of the Union who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation No 1612/68. The fact that the parents of the children concerned have meanwhile divorced and the fact that the parent who exercised rights of residence as a migrant worker is no longer economically active in the host Member State are irrelevant in this regard (see, to that effect, Baumbast and R , paragraph 63).
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63 In the light of the foregoing, the answer to the first question must be that children of a citizen of the European Union who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation No 1612/68. The fact that the parents of the children concerned have meanwhile divorced, the fact that only one parent is a citizen of the Union and that parent has ceased to be a migrant worker in the host Member State and the fact that the children are not themselves citizens of the Union are irrelevant in this regard.
The second question
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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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12. Il y a lieu de relever à cet égard que, selon une jurisprudence constante de la Cour, 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 les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9, et du 27 septembre 2007, Commission/République tchèque, C‑115/07, point 9).
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9. By contrast, as regards the fields to which the Directive applies with the exception of that of doctors in training, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-323/01 Commission v Italy [2002] ECR I‑4711, paragraph 8, and Case C-322/00 Commission v Netherlands [2003] ECR I-11267, paragraph 50).
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46. It must be observed as a preliminary point that, under Article 13(2) of Regulation No 2100/94, the authorisation of the holder of a Community plant variety right is required in respect of variety constituents, or harvested material of the protected variety, inter alia for production or reproduction (multiplication), conditioning for the purpose of propagation, offering for sale, selling or other marketing and for stocking for those purposes.
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124. In this respect, it suffices to say that, according to settled case-law, where all the other pleas put forward in an appeal have been rejected, any plea challenging the decision of the Court of First Instance on costs must be rejected as inadmissible by virtue of the second paragraph of Article 51 of the EC Statute of the Court of Justice, which provides that no appeal shall lie regarding only the amount of the costs or the party ordered to pay them (see, in particular, Case C-396/93 P Henrichs v Commission [1995] ECR I-2611, paragraphs 65 and 66, and Joined Cases C-302/99 P and C-308/99 P Commission and France v TF1 [2001] ECR I-5603, paragraph 31).
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65 According to the second paragraph of Article 51 of the Statute of the Court of Justice, "No appeal shall lie regarding only the amount of the costs or the party ordered to pay them".
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99. Le respect de l’obligation de motivation doit, par ailleurs, être apprécié au regard non seulement du libellé de l’acte, mais aussi de son contexte ainsi que de l’ensemble des règles juridiques régissant la matière concernée (voir, notamment, arrêts précités du 29 février 1996, Commission/Conseil, point 29; Alliance for Natural Health e.a., point 134, ainsi que Allemagne/Parlement et Conseil, point 108). En particulier, un acte est suffisamment motivé dès lors qu’il est intervenu dans un contexte connu de l’institution concernée, qui lui permet de comprendre la portée de la mesure prise (voir, en ce sens, notamment, arrêts du 29 octobre 1981, Arning/Commission, 125/80, Rec. p. 2539, point 13; du 22 juin 2004, Portugal/Commission, C‑42/01, Rec. p. I‑6079, points 69 et 70, ainsi que du 15 novembre 2012, Conseil/Bamba, C‑417/11 P, point 54).
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60. Le fait que le régime particulier des agences de voyages constitue une exception aux règles de droit commun, de sorte que, en tant que telle, cette exception ne doit pas être étendue au-delà de ce qui est nécessaire pour atteindre les objectifs qu’elle poursuit (voir arrêt First Choice Holidays, précité, point 22), n’implique cependant pas qu’il faille adopter l’approche fondée sur le voyageur si celle-ci porte atteinte à l’effet utile de ce régime particulier.
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22. As an exception to the normal rules of the Sixth Directive, Article 26 must be applied only to the extent necessary to achieve its objective (Madgett and Baldwin , paragraph 34).
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45. As the Commission correctly argues in its written observations, the fact that a parallel importer does not affix the trade mark to the new exterior carton (‘de-branding’) or applies either his own logo or a house-style or get-up or a get-up used for a number of different products (‘co-branding’), or positions the additional label so as wholly or partially to obscure the proprietor’s trade mark, or fails to state on the additional label that the trade mark in question belongs to the proprietor, or prints the name of the parallel importer in capital letters is, in principle, liable to damage the trade mark’s reputation.
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53. The Court has consistently held that indirect discrimination on grounds of sex arises where a national measure, albeit formulated in neutral terms, puts considerably more workers of one sex at a disadvantage than the other (see, to that effect, Case C‑1/95 Gerster [1997] ECR I‑5253, paragraph 30; Case C‑123/10 Brachner [2011] ECR I‑10003, paragraph 56; and Case C‑7/12 Riežniece [2013] ECR, paragraph 39).
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39. The Court has consistently held that indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, in particular, Case C‑1/95 Gerster [1997] ECR I-5253, paragraph 30, and Case C‑123/10 Brachner [2011] ECR I-0000, paragraph 56).
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55 In Genius Holding the deductions which had been made initially by the plaintiff had therefore to be adjusted in accordance with Article 20(1)(a) of the Sixth Directive.
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En outre, la Cour a déjà jugé que la prise en compte de la dépréciation réelle des véhicules ne doit pas nécessairement donner
lieu à une évaluation ou à une expertise de chacun de ceux-ci. En effet, en évitant la lourdeur inhérente à un tel système,
un État membre peut fixer, au moyen de barèmes forfaitaires déterminés par une disposition législative, réglementaire ou administrative,
et calculés sur la base de critères tels que l’ancienneté, le kilométrage, l’état général, le mode de propulsion, la marque
ou le modèle du véhicule, une valeur des véhicules d’occasion qui, en règle générale, soit très proche de leur valeur réelle
(arrêts du 22 février 2001, Gomes Valente, C‑393/98, EU:C:2001:109, point 24, et du 20 septembre 2007, Commission/Grèce, C‑74/06,
EU:C:2007:534, point 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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82. S’agissant de la proposition de la Commission d’imposer une astreinte de nature dégressive, il convient de relever que, même si pour garantir l’exécution complète de l’arrêt de la Cour, l’astreinte doit être exigée dans son intégralité jusqu’à ce que l’État membre ait pris toutes les mesures nécessaires pour mettre fin au manquement constaté, dans certains cas spécifiques, toutefois, une sanction qui tient compte des progrès éventuellement réalisés par l’État membre dans l’exécution de ses obligations peut être envisagée (voir, en ce sens, arrêts Commission/Belgique, C‑533/11, EU:C:2013:659, points 73 et 74 ainsi que jurisprudence citée, et Commission/Italie, C‑196/13, EU:C:2014:2407, point 106).
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53. It follows that all the international commitments challenged in this action must be assessed in relation to the provisions of Community law cited by the Commission in support of this action (see, to that effect, Commission v Denmark , paragraphs 36 to 42; Commission v Sweden , paragraphs 34 to 40; Commission v Finland , paragraphs 36 to 42; Commission v Belgium , paragraphs 47 to 53; Commission v Luxembourg , paragraphs 42 to 48, and Commission v Austria , paragraphs 46 to 52).
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40 The finding in the preceding paragraph applies, in particular, to access to intra-Community routes granted to airlines designated by the United States of America. Even if, as the Danish Government maintains, that access originates in commitments entered into in 1966, it is clear from Part 1 of Annex I to the 1944 Agreement, concerning the list of routes, as amended in 1995, that access for carriers designated by the United States of America to intra-Community routes was, at the very least, reconfirmed in 1995 in the context of the exchange of traffic rights agreed by the two States.
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19 IL FAUT DES LORS SE DEMANDER SI LES CONCLUSIONS AUXQUELLES LA COUR EST PARVENUE DANS L ' ARRET SUSMENTIONNE PEUVENT S ' APPLIQUER EGALEMENT AU CAS VISE PAR LA JURIDICTION NATIONALE .
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31. According to settled case-law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations and time-limits laid down by a directive (see, inter alia, Case C-114/02 Commission v France [2003] ECR I-3783, paragraph 11, and Case C-358/03 Commission v Austria [2004] ECR I-12055, paragraph 13).
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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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37. The Council maintains that it took into account, during the legislative procedure, studies carried out in 2004 by the International Council on Clean Transportation (ICCT) which demonstrated that the use of MMT is damaging to human health and to the proper functioning of emissions control systems and the Declaration of Brescia on the prevention of the neurotoxicity of metals of 17 and 18 June 2006 which recommends, inter alia, that the addition of organic manganese compounds to fuels should be halted.
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101. Although, in proceedings brought under Article 258 TFEU for failure to fulfil an obligation, it is incumbent upon the Commission to prove the infringement alleged by providing the Court with the evidence necessary to enable it to establish that the obligation has not been fulfilled, without being able to rely on any presumption for those purposes (judgment of 22 January 2009 in Case C‑150/07 Commission v Portugal , paragraph 65 and the case-law cited), account should be taken of the fact that, where it is a question of checking that the national provisions intended to ensure effective implementation of Directive 2006/12 are applied correctly in practice, the Commission, which does not have investigative powers of its own in this area, is largely reliant on the information provided by complainants, by public or private bodies, by the press or by the Member State concerned (see, to that effect, Case C‑494/01 Commission v Ireland [2005] ECR I‑3331, paragraph 43, and Case C‑135/05 Commission v Italy , paragraph 28).
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65. S’agissant, ensuite, du grief de la Commission visant la pratique des autorités portugaises en matière d’inscription des ressources propres dans le cadre de la convention ATA, il convient de rappeler, d’une part, que, dans le cadre d’une procédure en manquement, il incombe à la Commission d’établir l’existence du manquement allégué, en apportant à la Cour les éléments nécessaires à la vérification par celle-ci de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (voir, en ce sens, arrêts du 29 mai 2001, Commission/Italie, C-263/99, Rec. p. I-4195, point 27, ainsi que du 6 novembre 2003, Commission/Royaume-Uni, C-434/01, Rec. p. I‑13239, point 21 et jurisprudence citée).
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33. In addition, it should be noted that, according to the very wording of Article 129b, to which Article 129c refers, trans-European networks are intended, inter alia , to achieve the objectives referred to in Article 7a, namely the establishment of the internal market. As far as the interoperability of networks in relation to the establishment of the internal market in particular is concerned, the second indent of Article 129c(1) constitutes a more specific provision than Article 100a. Consequently, even though the second indent of Article 129c(1) also covers objectives pursued by Article 100a, the existence of Article 100a cannot be used as an argument for restricting the scope of that provision.
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31 The letting of immovable property for the purposes of Article 13B(b) of the Sixth Directive essentially involves the landlord of property assigning to the tenant, in return for rent and for an agreed period, the right to occupy his property and to exclude other persons from it (see, to that effect, Commission v Ireland, paragraphs 52 to 57, and Commission v United Kingdom, paragraphs 64 to 69, cited above, and Case C-326/99 Goed Wonen [2001] ECR I-6831, paragraph 55).
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55 Leaving aside the specific cases expressly listed in Article 13B(b) of the Sixth Directive, however, the term letting of immovable property must be construed strictly. As pointed out in paragraph 52 of this judgment, it constitutes an exception to the general VAT rules contained in that directive.
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39. It is clear from this wording that the three grounds for refusal of registration set out in that provision operate independently of one another: the fact that they are set out as successive points, coupled with the use of the word ‘exclusively’, shows that each of those grounds must be applied independently of the others.
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46. Since the goods at issue had not yet left those arrangements at the date of the sale at issue, even though they had been physically introduced into the territory of the Union, they cannot have been the subject-matter of an ‘importation’ within the meaning of Article 2(2) of the Sixth Directive (see, to that effect, Case C‑305/03 Commission v United Kingdom [2006] ECR I‑1213, paragraph 41).
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41. Although the time of definitive importation of goods, placed under arrangements for temporary importation upon entry into the Community, is deferred pursuant to Article 7(3) of the Sixth Directive to the time those arrangements cease to be applicable to the goods, it follows from the derogation provided for in Article 16(1) of that directive that all transactions effected under those temporary arrangements must be taxed as if they had been effected within the territory of the country after the definitive importation of the goods.
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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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12 It is not sufficient, for the purpose of showing that an additive does not meet a genuine need, to rely on the fact that a product could be manufactured using another substance. Such an interpretation of the concept of technological need could result in favouring national production methods, which would constitute a disguised means of restricting trade between Member States (see the "Purity requirement for beer case", cited above, at paragraph 51, and Joined Cases C-13/91 and C-113/91 Debus [1992] ECR I-3617, at paragraph 28).
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51 IT MUST BE EMPHASIZED THAT MERE REFERENCE TO THE FACT THAT BEER CAN BE MANUFACTURED WITHOUT ADDITIVES IF IT IS MADE FROM ONLY THE RAW MATERIALS PRESCRIBED IN THE FEDERAL REPUBLIC OF GERMANY DOES NOT SUFFICE TO PRECLUDE THE POSSIBILITY THAT SOME ADDITIVES MAY MEET A TECHNOLOGICAL NEED . SUCH AN INTERPRETATION OF THE CONCEPT OF TECHNOLOGICAL NEED, WHICH RESULTS IN FAVOURING NATIONAL PRODUCTION METHODS, CONSTITUTES A DISGUISED MEANS OF RESTRICTING TRADE BETWEEN MEMBER STATES .
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61. Therefore, the second part of the complaint is well founded. The claims in the action based on failure to apply Directive 91/271 must therefore be upheld.
As regards Directive 91/676
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39. En cas de décision constatant le caractère illégal et incompatible d’une aide, la récupération de celle-ci, ordonnée par la Commission, a lieu dans les conditions prévues à l’article 14, paragraphe 3, du règlement n° 659/1999 (arrêt du 20 octobre 2011, Commission/France, C‑549/09, point 28).
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28. En cas de décision constatant le caractère illégal et incompatible d’une aide, la récupération de celle-ci, ordonnée par la Commission, a lieu dans les conditions prévues à l’article 14, paragraphe 3, du règlement n° 659/1999.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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65. If that court finds that the proportional taking into account of cleaners’ working hours performed on a part-time basis is justified by such reasons, the mere fact that the national provisions affect a much higher percentage of female workers than male workers cannot be regarded as a breach of Article 5 of Directive 76/207 (see, to this effect, Rinner-Kühn , cited above, paragraph 14, and Seymour-Smith and Perez , cited above, paragraph 69).
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69 It is settled case-law that if a Member State is able to show that the measures chosen reflect a necessary aim of its social policy and are suitable and necessary for achieving that aim, the mere fact that the legislative provision affects far more women than men at work cannot be regarded as a breach of Article 119 of the Treaty (see, in particular, Case C-444/93 Megner and Scheffel v Innungskrankenkasse Vorderpfalz [1995] ECR I-4741, paragraph 24, and Freers and Speckmann, cited above, paragraph 28).
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En outre, dans la mesure où les requérantes font valoir que la Commission aurait adopté une approche différente concernant
les sanctions imposées dans d’autres cas d’ententes, il suffit de rappeler, ainsi que la Cour l’a itérativement jugé, que
la pratique décisionnelle antérieure de la Commission ne sert pas de cadre juridique aux amendes en matière de concurrence
(arrêt du 10 juillet 2014, Telefónica et Telefónica de España/Commission, C‑295/12 P, EU:C:2014:2062, point 189 ainsi que
jurisprudence citée).
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37 However, since Article 73c of the Treaty authorizes, under the conditions laid down therein and notwithstanding the prohibition laid down in Article 73b(1), certain restrictions on capital movements between Member States and non-member countries, the Member States are entitled to verify the nature and reality of the transactions and transfers in question, with a view to satisfying themselves that such transfers will not be used for the purposes of the capital movements which are specifically covered by the restrictions authorized by Article 73c (see, to that effect, Luisi and Carbone, paragraphs 31 and 33).
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33 IN THE ABSENCE OF ANY CRISIS AND UNTIL THE FREE MOVEMENT OF CAPITAL HAS BEEN FULLY ACHIEVED , IT MUST THEREFORE BE ACKNOWLEDGED THAT MEMBER STATES ARE EMPOWERED TO VERIFY THAT TRANSFERS OF FOREIGN CURRENCY PURPORTEDLY INTENDED FOR LIBERALIZED PAYMENTS ARE NOT DIVERTED FROM THAT PURPOSE AND USED FOR UNAUTHORIZED MOVEMENTS OF CAPITAL . IN THAT CONNECTION , MEMBER STATES ARE ENTITLED TO VERIFY THE NATURE AND GENUINENESS OF THE TRANSACTIONS OR TRANSFERS IN QUESTION .
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28. The Court has consistently held that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (see Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑9895, paragraph 23).
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41
Moreover, it is clear, in essence, from the case-law of the Court that the determination, at the time of the presentation of the goods concerned to customs, of whether the goods belong together as a unit, or, in other words, constitute a ‘set’ within the meaning of Rule 3(b) of the General Rules must, in the final analysis, be made having regard to the manner in which they are intended to be offered for sale to consumers, namely whether they will be presented to consumers as a unit (see, to that effect, the judgment in Telefunken Fernseh und Rundfunk, 163/84, EU:C:1985:396, paragraph 35).
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45. If the opposite were true, the tariff classification of the imported components would depend on a fact which not intrinsic to those goods, since the customs authorities are not in a position to ascertain whether components which were not presented to customs have to be worked or not before being capable of assembly with the imported components, which would undermine the objective of ease of verification by the customs and legal certainty which must govern that classification.
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35
It should be noted, as a preliminary point, that the guidelines on the permissibility of State intervention consisting in the regulation of prices, set out in the judgment of 20 April 2010 in Federutility and Others (C‑265/08, EU:C:2010:205), with respect to Article 3(2) of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57), are also valid with respect to Article 3(2) of Directive 2009/73, as that provision has not been amended in so far as it applies to the main proceedings (see judgment of 10 September 2015, Commission v Poland, C‑36/14, not published, EU:C:2015:570, paragraph 53).
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35 In this connection, it should be noted that the Court has consistently held that where a Community regulation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the EC Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive (Case 68/88 Commission v Greece [1989] ECR 2965, paragraphs 23 and 24; Case C-326/88 Anklagemyndigheden v Hansen [1990] ECR I-2911, paragraph 17; Case C-36/94 Siesse v Director da Alfândega de Alcântara [1995] ECR I-3573, paragraph 20).
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24 For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive .
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29. À cet égard, un brevet protégeant plusieurs «produits» distincts peut certes permettre en principe d’obtenir plusieurs CCP en lien avec chacun de ces produits distincts, pour autant notamment que chacun de ceux-ci soit «protégé» en tant que tel par ce «brevet de base» au sens de l’article 3, sous a), du règlement nº 469/2009, lu en combinaison avec l’article 1 er , sous b) et c), de celui-ci (arrêt du 12 décembre 2013, Georgetown University, C‑484/12, point 30).
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26. The right to deduct, provided for in Article 17 et seq. of the Sixth Directive, is an integral part of the VAT scheme and, in principle, may not be limited (Case C‑243/03 Commission v France [2005] ECR I‑8411, paragraph 28 and case-law cited, and Case C‑488/07 Royal Bank of Scotland [2008] ECR I‑10409, paragraph 14).
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14. The Court has consistently held that the right to deduct provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and, in principle, may not be limited (Case C‑243/03 Commission v France [2005] ECR I‑8411, paragraph 28 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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42 As to whether a levy such as that in issue in the main proceedings is compatible with Article 95 of the Treaty, it must be borne in mind that, as pointed out in paragraph 23 of the present judgment, such a levy, although applicable without distinction, must none the less be regarded as constituting a breach of the prohibition of discrimination laid down by Article 95 of the Treaty if the advantages accruing to the taxed national products processed and marketed on the national market from the use of the revenue generated by the charge offset only partially the burden borne by those products and thus adversely affect exported domestic products (see, by way of analogy, Case C-266/91 CELBI [1993] ECR I-4337, paragraph 14). In that case, the charge levied on the exported product, which is in principle lawful, will have to be prohibited to the extent to which it partially compensates the charge borne by the product processed or marketed on the national market and will have to be reduced proportionally (see, by way of analogy, Case 94/74 IGAV [1975] ECR 699, paragraph 13, Scharbatke, paragraph 10, and UCAL, paragraph 23).
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14 However, even if it is applicable without distinction, that charge will none the less constitute a breach of the prohibition of discrimination set out in Article 95 of the Treaty if the advantages resulting from the use to which the revenue from it is put are specifically of benefit to the domestic products on which it was levied, by offsetting part of the burden on them and thereby placing imported products at a disadvantage.
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32. The Court has consistently held that restrictions on the freedom of establishment and the freedom to provide services referred to in Articles 43 EC and 49 EC respectively are measures which prohibit, impede or render less attractive the exercise of such freedoms (see, to that effect, Case C‑439/99 Commission v Italy [2002] ECR I‑305, paragraph 22; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 31; Case C‑65/05 Commission v Greece [2006] ECR I‑10341, paragraph 48; and Case C‑248/06 Commission v Spain [2008] ECR I‑0000, paragraph 21).
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38. Since the conflict rules laid down by Regulation No 1408/71 are thus mandatory for the Member States, the Court has previously held that a fortiori it cannot be accepted that insured persons falling within the scope of those rules can counteract their effects by being able to elect to withdraw from their application. The application of the system of conflict rules established by that regulation depends solely on the objective situation of the worker concerned (see, to that effect, judgment in van Delft and Others , C‑345/09, EU:C:2010:610, paragraph 52 and the case-law cited).
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52. Since the conflict rules laid down by Regulation No 1408/71 are thus mandatory for the Member States, a fortiori it cannot be accepted that insured persons falling within the scope of those rules can counteract their effects by being able to elect to withdraw from their application. The application of the system of conflict rules established by Regulation No 1408/71 depends solely on the objective situation of the worker concerned (see, to that effect, Case 11/67 Couture [1967] ECR 379, 388; Case 12/67 Guissart [1967] ECR 425, 433; and Case C‑60/93 Aldewereld [1994] ECR I‑2991, paragraphs 16 to 20).
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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30. Second, the French rules on television advertising pursue an objective relating to the protection of public health within the meaning of Article 56(1) of the Treaty, as the Advocate General stated in paragraph 69 of his Opinion. Measures restricting the advertising of alcoholic beverages in order to combat alcohol abuse reflect public health concerns (see Case 152/78 Commission v France [1980] ECR 2299, paragraph 17; Aragonesa de Publicidad Exterior and Publivía , paragraph 15; and Case C-405/98 Gourmet International Products [2001] ECR I-1795, paragraph 27).
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15 On the first point it is sufficient to observe, as the Court pointed out in its judgment in Case 152/78 Commission v France [1980] ECR 2299, paragraph 17, that advertising acts as an encouragement to consumption and the existence of rules restricting the advertising of alcoholic beverages in order to combat alcoholism reflects public health concerns.
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44. It is clear from the wording and the objective of those directives that they each pursue complete harmonisation in their respective fields of application. It follows that, in the fields covered by those directives, the Member States must conform to them in their entirety and cannot maintain national provisions to the contrary.
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30 The management of EAGGF finances is principally in the hands of the national administrative authorities responsible for ensuring that the Community rules are strictly observed. That system, based on trust between national and Community authorities, does not involve any systematic supervision by the Commission, which moreover would in practice be quite unable to carry it out. Only the Member State is in a position to know and determine precisely the information necessary for drawing up EAGGF accounts since the Commission is not close enough to obtain the information it needs from the economic operators (Case C-48/91 Netherlands v Commission, cited above, paragraph 11).
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11 In the present case, it is common ground that the German Government was closely involved in the process of drawing up the contested decision and was therefore aware of the reason for which the Commission considered that the amount at issue should not be charged to the EAGGF. It is apparent from the documents before the Court that the objections made by the Commission against the operation in question were brought to the attention of the German authorities on several occasions. In particular, by letter of 23 May 1990, the Commission indicated that it considered the tolerance of 1 500 000 kg mentioned on Licence No 231 95 065 to be unjustified.
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47. That is true of Articles 15 and 16 of Directive 2008/115, which, as is clear from paragraph 40 of this judgment, are unconditional and sufficiently precise, so that no other specific elements are required for them to be implemented by the Member States.
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34
Moreover, the legislature has laid down with particular strictness that shapes necessary to obtain a technical result are unsuitable for registration as trade marks, since it has excluded the grounds for refusal listed in Article 7(1)(e) of Regulation No 40/94 from the scope of the exception under Article 7(3) of that regulation. It thus follows from Article 7(3) of the regulation that, even if a shape of goods which is necessary to obtain a technical result has become distinctive in consequence of the use which has been made of it, it is prohibited from being registered as a trade mark (judgment of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraph 47).
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47. Furthermore, the legislature has laid down with particular strictness that shapes necessary to obtain a technical result are unsuitable for registration as trade marks, since it has excluded the grounds for refusal listed in Article 7(1)(e) of Regulation No 40/94 from the scope of the exception under Article 7(3). If follows, therefore, from Article 7(3) of the regulation that, even if a shape of goods which is necessary to obtain a technical result has become distinctive in consequence of the use which has been made of it, it is prohibited from being registered as a trade mark (see by analogy, in relation to Article 3(3) of Directive 89/104, which is essentially identical to Article 7(3) of Regulation No 40/94, Philips , paragraph 57, and Case C-371/06 Benetton Group [2007] ECR I-7709, paragraphs 25 to 27).
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21 It is clear from that provision that the three conditions set out therein are cumulative.
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71. National legislation which provides for a consideration of objective and verifiable elements in order to determine whether a transaction represents an artificial arrangement, entered into for tax reasons, is to be regarded as not going beyond what is necessary to attain the objectives relating to the need to maintain the balanced allocation of the power to tax between the Member States and to prevent tax avoidance where, first, on each occasion on which there is a suspicion that a transaction goes beyond what the companies concerned would have agreed under fully competitive conditions, the taxpayer is given an opportunity, without being subject to undue administrative constraints, to provide evidence of any commercial justification that there may have been for that transaction (see, to that effect, Test Claimants in the Thin Cap Group Litigation , paragraph 82, and order in Case C‑201/05 Test Claimants in the CFC and Dividend Group Litigation [2008] ECR I‑2875, paragraph 84).
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82. As the Advocate General stated at point 67 of his Opinion, national legislation which provides for a consideration of objective and verifiable elements in order to determine whether a transaction represents a purely artificial arrangement, entered into for tax reasons alone, is to be considered as not going beyond what is necessary to prevent abusive practices where, in the first place, on each occasion on which the existence of such an arrangement cannot be ruled out, the taxpayer is given an opportunity, without being subject to undue administrative constraints, to provide evidence of any commercial justification that there may have been for that arrangement.
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35. Those buildings were acquired along with the land on which they had been constructed and that land continues to be used by GVM for the purposes of its taxed transactions. In those circumstances the replacement of dilapidated structures with more modern buildings which, consequently, are used for taxable output transactions in no way breaks the direct link between, on the one hand, the input acquisition of the buildings at issue and, on the other, the economic activities carried out thereafter by the taxable person. The acquisition of those buildings and their subsequent destruction with a view to building more modern new ones can, therefore, be regarded as a series of linked transactions for the purposes of subsequent taxable transactions in the same way as the acquisition of new buildings and their direct use (see Case C‑234/11 TETS Haskovo [2012] ECR, paragraph 34).
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75. Accordingly, an operator who has placed himself artificially in a situation enabling him to obtain unlawfully the benefit of the preferential rate of duty for the importation of bananas is obliged to pay the duties on the goods concerned, without prejudice, where appropriate, to any administrative, civil or criminal-law penalties provided for by national law (see, by analogy, judgment in Christodoulou and Others , C‑116/12, EU:C:2013:825, paragraph 68).
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68. Ainsi, l’importateur qui s’est placé de manière artificielle dans une situation qui lui permet de bénéficier des restitutions à l’exportation est tenu d’acquitter les droits afférents aux produits concernés, sans préjudice, le cas échéant, des sanctions administratives, civiles ou pénales prévues par la législation nationale.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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36. It is for the referring court to determine, in the light of those criteria, whether the combining of tax penalties and criminal penalties that is provided for by national law should be examined in relation to the national standards as referred to in paragraph 29 of the present judgment, which could lead it, as the case may be, to regard their combination as contrary to those standards, as long as the remaining penalties are effective, proportionate and dissuasive (see, to this effect, inter alia Commission v Greece , paragraph 24; Case C-326/88 Hansen [1990] ECR I-2911, paragraph 17; Case C-167/01 Inspire Art [2003] ECR I-10155, paragraph 62; Case C-230/01 Penycoed [2004] ECR I-937, paragraph 36; and Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565 paragraph 65).
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24 For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive .
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56. Moreover, according to Article 52(3) of the Charter, in so far as it contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the Convention. Article 53 of the Charter further states that nothing in the Charter is to be interpreted as restricting or adversely affecting the rights recognised inter alia by the ECHR (judgment in Volker und Markus Schecke and Eifert , C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 51).
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40
The deduction system, and accordingly the refund system, is intended to relieve the operator entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT therefore ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT (judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 35 and the case-law cited).
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35. It should be recalled at the outset that the deduction system established by the VAT Directive is meant to relieve the operator entirely of the burden of the VAT paid or payable in the course of all his economic activities. Thus, the common system of VAT seeks to ensure complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject, in principle, to VAT (see, inter alia, Case 268/83 Rompelman [1985] ECR 655, paragraph 19, and Case C‑118/11 Eon Aset Menidjmunt [2012] ECR I‑0000, paragraph 43).
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31. En troisième lieu, pour vérifier si l’acte attaqué comporte des mesures d’exécution, il convient de se référer exclusivement à l’objet du recours et, dans le cas où un requérant ne demande que l’annulation partielle d’un acte, ce sont seulement les mesures d’exécution que cette partie de l’acte comporte éventuellement qui doivent le cas échéant être prises en considération.
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22. The Treaty does not define the notions of ‘capital movements’ or ‘payments’. However, it is established case-law that, in as much as Article 73b of the EC Treaty substantially reproduces the contents of Article 1 of Directive 88/361, and even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (Articles 67 to 73 of the EEC Treaty having been replaced by Articles 73b to 73g of the EC Treaty, now Articles 56 EC to 60 EC), the nomenclature in respect of ‘movements of capital’ annexed to Directive 88/361 still has the same indicative value, for the purposes of defining the notion of capital movements, as it did before the entry into force of those provisions, subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive (see, inter alia, Case C-222/97 Trummer and Mayer [1999] ECR I‑1661, paragraph 21, Joined Cases C-515/99, C-519/99 to C‑524/99 and C‑526/99 to C-540/99 Reisch and Others [2002] ECR I-2157, paragraph 30, and Van Hilten-van der Heijden , paragraph 39).
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21 However, inasmuch as Article 73b of the EC Treaty substantially reproduces the contents of Article 1 of Directive 88/361, and even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty, which have since been replaced by Article 73b et seq. of the EC Treaty, the nomenclature in respect of movements of capital annexed to Directive 88/361 still has the same indicative value, for the purposes of defining the notion of capital movements, as it did before the entry into force of Article 73b et seq., subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive.
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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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42
Given the particular nature of the situation linked to betting and gambling, such objectives may be reasons of overriding public interest capable of justifying restrictions of fundamental freedoms, such as those at issue in the main proceedings (see, to that effect, judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraphs 42 and 43).
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43
In that regard, it is worthwhile bearing in mind that such an objective may be a reason of overriding public interest capable of justifying a restriction on fundamental freedoms, such as that at issue in the main proceedings (see, to that effect, judgment of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraphs 34 and 35). The Court has, moreover, previously held that the objective of combating criminality linked to betting and gambling is capable of justifying restrictions on fundamental freedoms under restrictive rules (see, to that effect, judgments of 12 September 2013, Biasci and Others, C‑660/11 and C‑8/12, EU:C:2013:550, paragraph 23, and of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 32).
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35ARTICLE 3 OF THE CONDITIONS OF EMPLOYMENT PROVIDES THAT ' ' AUXILIARY STAFF ' ' MEANS STAFF ENGAGED FOR THE PERFORMANCE OF DUTIES IN AN INSTITUTION BUT NOT ASSIGNED TO A POST INCLUDED IN THE LIST OF POSTS APPENDED TO THE SECTION OF THE BUDGET RELATING TO THAT INSTITUTION , OR STAFF ENGAGED TO REPLACE AN OFFICIAL WHO IS UNABLE FOR THE TIME BEING TO PERFORM HIS DUTIES AND WHOSE POST COULD NOT BE FILLED BY TEMPORARY POSTING OF ANOTHER OFFICIAL .
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54. The United Kingdom and Italian Governments submit in that regard that, in the main proceedings, the case-law according to which it is neither disproportionate nor contrary to the general principles of law which the Court is required to uphold to require an importer who has acted in good faith to pay customs duties payable on the importation of goods in respect of which the exporter has committed a customs offence, where the importer has played no part in that offence, is applicable to this case (see Joined Cases C‑153/94 and C‑204/94 Faroe Seafood and Others [1996] ECR I‑2465, paragraph 114, and Case C‑97/95 Pascoal & Filhos [1997] ECR I‑4209, paragraph 61).
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61 It follows that the fact of requiring an importer who has acted in good faith to pay customs duties payable on the importation of goods in respect of which the exporter has committed a customs offence, where the importer has played no part in that offence, is not contrary to the general principles of law which the Court is required to uphold.
The seventh question (negligence on the part of the authorities of the State of exportation)
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46. Lastly, the raison d’être and effectiveness of consultations with the workers’ representatives presuppose that the factors to be taken into account in the course of those consultations have been determined, given that it is impossible to undertake consultations in a manner which is appropriate and consistent with their objectives when there has been no definition of the factors which are of relevance with regard to the collective redundancies contemplated. Those objectives are, under Article 2(2) of Directive 98/59, to avoid termination of employment contracts or to reduce the number of workers affected, and to mitigate the consequences (see Junk, paragraph 38). However, where a decision deemed likely to lead to collective redundancies is merely contemplated and where, accordingly, such collective redundancies are only a probability and the relevant factors for the consultations are not known, those objectives cannot be achieved.
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41. Finally, so far as concerns the third argument, it is apparent from Joined Cases C‑403/08 and C-429/08 Football Association Premier League and Others [2011] ECR I-0000, paragraphs 76 to 145, that communications to the public by satellite must be capable of being received in all the Member States and that they therefore by definition have a cross-border nature. Furthermore, the communications at issue in the main proceedings display such a nature since they involve Belgian and Netherlands companies, Airfield and Canal Digitaal, and the programme-carrying signals are intended in particular for television viewers residing in Belgium and Luxembourg.
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90. FAPL and others, MPS and the United Kingdom, French and Italian Governments submit that the restriction underlying the legislation at issue in the main proceedings can be justified in light of the rights of holders of intellectual property rights, because it is necessary in order to ensure that those holders remain appropriately remunerated; this requires that they be entitled to demand appropriate remuneration for the use of their works or other subject-matter in each Member State and to grant territorial exclusivity in respect of their use.
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59. Consequently, even on the assumption that, as KÖGÁZ and Others and Vodafone have claimed, the HIPA is generally applied in the municipalities which have introduced it, that would not suffice to classify a tax such as the HIPA as a turnover tax within the meaning of Article 33 of the Sixth Directive, inasmuch as it is not levied on transactions in a manner comparable to VAT (see, to that effect, Pelzl and Others , paragraph 27).
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48 If an agreement, decision or practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant (Case C-306/96 Javico [1998] ECR I-1983, paragraph 16).
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16 If an agreement, decision or practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant (Case 5/69 Völk v Vervaecke [1969] ECR 295, paragraph 5).
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27. Since Article 98(1) and (2) of Directive 2006/112 in essence repeats the wording of Article 12(3)(a) of the Sixth Directive, the interpretation given by the Court to the earlier provision should be extended to the provision replacing it.
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24. It must be noted that it is apparent from both the wording of Article 70(1) of the Customs Code and the scheme of Articles 68 to 74 of that code that that possibility of applying the results of a partial examinati on concerns only those goods which are covered by ‘a [single] declaration’ where those goods are examined by the customs authorities before those authorities grant the release of those goods (see, to that effect, Derudder , paragraph 43).
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43. Although it follows from those considerations that a customs declarant or his representative may be permitted to challenge the representativeness of a sample taken from imported goods, even if he was present when the samples were taken and at that time raised no objection in this regard, both the principle of legal certainty and the need to give practical effect to Directives 79/695 and 82/57 and the Community Customs Code require that the possibility of raising the objection be restricted in time. It must lapse when the customs authority releases the goods concerned, except where it can be shown that the condition of those goods was not altered in any way whatsoever after the release, so that the possibility remains of conducting inspections and, if necessary, of taking additional samples.
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66. In relation to aid granted by the European Union budget in the framework of the common agricultural policy, the Court has already held that any exercise, by a Member State, of a discretion to decide whether or not it would be expedient to demand repayment of aid unduly or unlawfully granted would be inconsistent with the obligations imposed on national administrations by European Union rules applicable in those sectors to recover aid unduly or unlawfully paid ( SGS Belgium and Others , paragraph 50).
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41 While it is true that such a refund may be sought only in the framework of the substantive and procedural conditions laid down by the various relevant national laws, the Court has consistently held (see inter alia the judgment in Case 199/82 San Giorgio [1983] ECR 3595, Case 309/85 Barra, cited above, paragraph 18, Case C-208/90 Emmot v Minister for Social Welfare and the Attorney General [1991] ECR I-4269, paragraph 16, and Case C-410/92 Johnson v Chief Adjudication Officer [1984] ECR I-5483, paragraph 21), that those conditions and the procedural conditions and rules governing actions at law for protecting the rights which individuals derive from the direct effect of Community law may not be less favourable than those relating to similar, domestic actions nor be framed in a way such as to render virtually impossible the exercise of rights conferred by Community law.
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18 WHILST IT IS TRUE THAT REPAYMENT MAY BE SOUGHT ONLY IN THE FRAMEWORK OF THE CONDITIONS AS TO BOTH SUBSTANCE AND FORM LAID DOWN BY THE VARIOUS NATIONAL LAWS APPLICABLE THERETO, THE FACT NEVERTHELESS REMAINS, AS THE COURT HAS CONSISTENTLY HELD ( SEE IN PARTICULAR THE JUDGMENT OF 9 NOVEMBER 1983 IN CASE 199/82 AMMINISTRAZIONE DELLE FINANZE DELLO STATO V SPA SAN GIORGIO (( 1983 )) ECR 3595 ) THAT THOSE CONDITIONS MAY NOT BE LESS FAVOURABLE THAN THOSE RELATING TO SIMILAR CLAIMS REGARDING NATIONAL CHARGES AND THEY MAY NOT BE SO FRAMED AS TO RENDER VIRTUALLY IMPOSSIBLE THE EXERCISE OF RIGHTS CONFERRED BY COMMUNITY LAW .
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28 Third, it is apparent from the very wording of Article 6(1) of Decision No 1/80 that that provision requires the person concerned to be a Turkish worker in a Member State, to be duly registered as belonging to the labour force of the host Member State and to have been in legal employment there for a certain period (Birden, paragraph 21).
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41 Furthermore, the Court has held that the purpose of Article 59 of the Treaty was to abolish restrictions on the freedom to provide services offered by persons not established in the State in which the service was to be provided and that, consequently, the provisions of Article 59 had to apply in all cases in which a person providing services offers those services in a Member State other than that in which he is established (judgment in Case C-154/89 Commission v France [1991] ECR I-659, paragraphs 9 and 10).
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10 Consequently, the provisions of Article 59 must apply in all cases where a person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established.
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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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22 Article 10(c) of the Directive prohibits, in addition to capital duty, taxes in respect of registration or any other formality required before the commencement of business, to which a company may be subject by reason of its legal form. That prohibition is justified by the fact that even though the taxes in question are not levied on capital contributions as such, they are nevertheless levied on account of formalities connected with the company's legal form, that is to say, on account of the instrument employed for raising capital, so that their continued existence would similarly risk frustrating the aims of the Directive (Case C-2/94 Denkavit Internationaal and Others [1996] ECR I-2827, paragraph 23, and Modelo I, paragraph 24).
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23 It should be recalled at the outset that Article 10 of Directive 69/335, read in the light of the last recital in the preamble to the directive, prohibits in particular indirect taxes with the same characteristics as the capital duty. It thus envisages, inter alia, taxes in any form which are payable in respect of the formation of a capital company or an increase in its capital [Article 10(a)], or in respect of registration or any other formality required before the commencement of business, to which a company may be subject by reason of its legal form [Article 10(c)]. As the Advocate General has pointed out in paragraph 44 of his Opinion, that latter prohibition is justified by the fact that, even though the taxes in question are not imposed on capital contributions as such, they are nevertheless imposed on account of formalities connected with the company' s legal form, in other words on account of the instrument employed for raising capital, so that their continued existence would similarly risk frustrating the aims of the directive.
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34. Toutefois, il convient de tenir compte, dans le cadre de l’application de ces critères, du fait que la perception du consommateur moyen n’est pas nécessairement la même dans le cas d’une marque tridimensionnelle, constituée par l’apparence du produit lui-même, que dans le cas d’une marque verbale ou figurative, qui consiste en un signe indépendant de l’aspect des produits qu’elle désigne (arrêt du 4 octobre 2007, Henkel/OHMI, C-144/06 P, Rec. p. I-8109, point 36 et jurisprudence citée).
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3 It should be observed in limine that Council Regulation No 857/84, as supplemented by Commission Regulation No 1371/84, originally did not provide for the allocation of a reference quantity to producers who, pursuant to an undertaking given under Regulation No 1078/77, delivered no milk during the reference year adopted by the Member State concerned. However, by judgments of 28 April 1988 in Case 120/86 Mulder v Minister van Landbouw en Visserij [1988] ECR 2321, paragraph 28, and in Case 170/86 von Deetzen v Hauptzollamt Hamburg-Jonas [1988] ECR 2355, paragraph 17, the Court declared those rules invalid on the ground that they were in breach of the principle of the protection of legitimate expectations in so far as they did not provide for the allocation of such a quantity.
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28 IL Y A LIEU, PAR CONSEQUENT, DE REPONDRE A LA DEUXIEME QUESTION QUE LE REGLEMENT N* 857/84 DU CONSEIL, DU 31 MARS 1984, TEL QUE COMPLETE PAR LE REGLEMENT N* 1371/84 DE LA COMMISSION, DU 16 MAI 1984, EST INVALIDE DANS LA MESURE OU IL NE PREVOIT PAS L' ATTRIBUTION D' UNE QUANTITE DE REFERENCE AUX PRODUCTEURS N' AYANT PAS, EN EXECUTION D' UN ENGAGEMENT PRIS AU TITRE DU REGLEMENT N* 1078/77 DU CONSEIL, DU 17 MAI 1977, LIVRE DE LAIT PENDANT L' ANNEE DE REFERENCE RETENUE PAR L' ETAT MEMBRE CONCERNE .
SUR LA TROISIEME QUESTION
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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42. However, such a restriction of the freedom to provide services may be allowed as a derogation expressly provided for in Articles 45 EC and 46 EC, applicable in this area by virtue of Article 55 EC, or justified in accordance with the case-law of the Court by overriding reasons in the public interest (Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633, paragraphs 55 and 56, and Case C‑212/08 Zeturf [2011] ECR I‑0000, paragraph 37).
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37. It should be borne in mind at the outset that a restriction on the freedom to provide services, such as that found by the referring court, may be allowed as a derogation expressly provided for by Articles 45 EC and 46 EC, applicable in this area by virtue of Article 55 EC, or justified, in accordance with the case-law of the Court, by overriding reasons in the public interest (Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633, paragraph 55).
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28 Furthermore, before approving the tariffs and bringing them into force, the minister must consult the regions and the representatives of the economic sectors concerned and must have regard to the guidelines issued by the Interministerial Committee on Prices.
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56. S’agissant, en deuxième lieu, de l’élément justificatif relatif à la nécessité de prévenir la double prise en compte des pertes, invoqué par les gouvernements allemand et suédois, la Cour a reconnu que les États membres doivent pouvoir faire obstacle à ce risque (voir arrêts précités Marks & Spencer, point 47; Rewe Zentralfinanz, point 47, et Lidl Belgium, point 35).
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47. While it must be accepted that the Member States must be able to prevent the danger of tax losses being used twice (see Marks & Spencer , paragraph 47), it must be pointed out that the losses at issue in the main proceedings are not, as the Advocate General stated at points 37 and 38 of his Opinion, comparable to losses incurred by subsidiaries abroad which the resident parent company requires them to surrender to it in order to reduce its taxable profits, which was the position in Marks & Spencer .
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11 It is also established that this pension scheme is funded wholly by the employees and employers in the industry concerned, to the exclusion of any financial contribution from the public purse.
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50. It is true that the employment of a Turkish national under a residence permit which was issued to him as a result of fraudulent conduct which has led to a conviction or under a provisional residence permit which is valid only pending a final decision on his right of residence cannot give rise to any rights in favour of that national under Article 6(1) of Decision No 1/80 (see Unal , paragraph 47).
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47. It is apparent from paragraphs 45 and 46 of the present judgment that the employment of a Turkish national under a residence permit which was issued to him as a result of fraudulent conduct which has led to a conviction or under a provisional residence permit which is valid only pending a final decision on his right of residence cannot give rise to any rights in favour of that national under Article 6(1) of Decision No 1/80.
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42 AN ACTION FOR ANNULMENT MUST THEREFORE BE AVAILABLE IN THE CASE OF ALL MEASURES ADOPTED BY THE INSTITUTIONS, WHATEVER THEIR NATURE OR FORM, WHICH ARE INTENDED TO HAVE LEGAL EFFECTS .
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58. In that regard, first of all, if supply on a market is highly concentrated, the exchange of certain information may, according in particular to the type of information exchanged, be liable to enable undertakings to be aware of the market position and commercial strategy of their competitors, thus distorting rivalry on the market and increasing the probability of collusion, or even facilitating it. On the other hand, if supply is fragmented, the dissemination and exchange of information between competitors may be neutral, or even positive, for the competitive nature of the market (see, to that effect, Thyssen Stahl v Commission , paragraphs 84 and 86). In the present case, it is common ground, as may be seen from paragraph 10 of this judgment, that the referring court premissed its reference for a preliminary ruling on the existence of ‘a fragmented market’, which it is for that court to verify.
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86. Contrary to what the appellant claims, an information exchange system may constitute a breach of competition rules even where the relevant market is not a highly concentrated oligopolistic market. It is true that, in its judgment in Case T-35/92 John Deere , cited above, which was upheld in this regard by the Court's judgment in John Deere , the Court of First Instance concluded that the tractors market was such a market. However, those judgments take into consideration a number of criteria in that regard, the only general principle applied in relation to the market structure being that supply must not be atomised.
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14 IT MUST BE STATED FIRST THAT THE PROCEDURE FOR CALCULATING THE NORMAL VALUE IS LAID DOWN IN ARTICLE 2*(3 ) TO ( 7 ) OF REGULATION NO 3017/79, AND THE PROCEDURE FOR CALCULATING THE EXPORT PRICE IS LAID DOWN IN ARTICLE 2*(8 ) THEREOF . THOSE PROVISIONS SEPARATELY SPECIFY SEVERAL DIFFERENT METHODS FOR CALCULATING EACH OF THE TERMS OF THE COMPARISON .
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45. First of all, it should be borne in mind that the applicability of Article 22 of Regulation No 1408/71 – and specifically, in the present case, of Article 22(1)(a)(i) – does not mean that Article 49 EC cannot apply at the same time. The fact that national legislation may be in conformity with Regulation No 1408/71 does not have the effect of removing that legislation from the scope of the provisions of the EC Treaty (see, to that effect, Case C‑372/04 Watts [2006] ECR I‑4325, paragraphs 46 and 47).
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47. The fact that a national measure may be consistent with a provision of secondary legislation, in this case Article 22 of Regulation No 1408/71, does not have the effect of removing that measure from the scope of the provisions of the Treaty (Case C-158/96 Kohll [1998] ECR I-1931, paragraph 25).
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13 It should be stressed in this regard that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes .
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14. According to settled case-law, any Community national who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in a Member State other than that of residence falls within the scope of Article 48 of the Treaty (Case C-385/00 de Groot [2002] ECR I-11819, paragraph 76; Case C-232/01 Van Lent [2003] ECR I-11525, paragraph 14; and Case C-209/01 Schilling and Fleck-Schilling [2003] ECR I-13389, paragraph 23).
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23. Any Community national who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in a Member State other than that of residence falls within the scope of Article 48 of the Treaty ( De Groot , cited above, paragraph 76).
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122 It must be observed, first, that so far as the amount of the financial correction is concerned, the Commission may even refuse to charge to the EAGGF the whole of the expenditure in question if it finds that there are no adequate control procedures.
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37 It must be observed at the outset that, whilst the protection of legitimate expectations is one of the fundamental principles of the Community, economic operators cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretion will be maintained; this is particularly true in an area such as the common organisation of the markets, the object of which entails constant adjustments to meet changes in the economic situation. It follows that economic operators cannot claim a vested right to the maintenance of an advantage which they derive from the establishment of the common organisation of the markets and which they enjoyed at a given time (see, in particular, Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni and Others v Fattoria Autonoma Tabacchi and Donatab [1994] ECR I-4863, paragraphs 57 and 58; and Case C-372/96 Pontillo v Donatab [1998] ECR I-5091, paragraphs 22 and 23).
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57 It follows that traders cannot claim a vested right to the maintenance of an advantage which they derive from the establishment of the common organization of the markets and which they enjoyed at a given time (paragraph 34 of that judgment).
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23. With regard, first of all, to the general scheme of Article 199(1)(g) of Directive 2006/112, it must be noted that it constitutes an exception to the principle, set out in Article 193 of that directive, according to which VAT is payable by any taxable person carrying out a taxable supply of goods or services. Article 199 allows Member States to introduce a reverse charge mechanism, in the situations referred to in paragraphs 1(a) to (g) of that article, whereby the person liable for the payment of VAT is the taxable person who is the recipient of the transaction subject to VAT.
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125. À cet égard, il importe de constater que l’application des lignes directrices de 1998 à l’encontre des régimes fiscaux litigieux adoptés en 1993 ne constitue pas une situation acquise antérieurement, mais relève d’une situation en cours qui, bien que née avant l’entrée en vigueur de celles-ci, est régie par lesdites lignes directrices à compter de leur entrée en vigueur, conformément au principe selon lequel les règles nouvelles s’appliquent immédiatement aux situations en cours (voir arrêt du 29 janvier 2002, Pokrzeptowicz-Meyer, C-162/00, Rec. p. I-1049, point 51).
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51 It is appropriate therefore, in order to reply to the second question, to determine whether the situation in which a fixed-term contract of employment was concluded prior to the date of the Europe Agreement's entry into force, for a term expiring after that date, constitutes a situation arising prior to the Europe Agreement, to which the Europe Agreement could therefore apply retrospectively only if it was clearly intended to have that effect, or whether it concerns, on the contrary, a situation which arose prior to the entry into force of that agreement but whose future effects are governed by it from the date of its entry into force, in accordance with the principle that new rules immediately apply to current situations.
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32. The Court has also stated that, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied (judgment in Fallimento Traghetti del Mediterraneo , C‑140/09, EU:C:2010:335, paragraph 36).
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42. Once the authorities of one Member State have issued a driving licence in accordance with Article 1(1) of Directive 91/439, the other Member States are not entitled to investigate whether the conditions for issue laid down by that directive have been met. The possession of a driving licence issued by one Member State has to be regarded as constituting proof that on the day on which that licence was issued, its holder satisfied those conditions (see, inter alia, Schwarz , paragraph 77, and Grasser , paragraph 21).
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77. Once the authorities of one Member State have issued a driving licence in accordance with Article 1(1) of Directive 91/439, the other Member States are not entitled to investigate whether the conditions for issue laid down by that directive have been observed. The possession of a driving licence issued by one Member State has to be regarded as constituting proof that, on the day that licence was issued, its holder fulfilled those conditions ( Wiedemann and Funk , paragraph 53; Zerche and Others , paragraph 50).
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57. In those circumstances, the European Union legislature was able to establish rules providing for a level of customer protection that varied according to the transport sector concerned.
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82. Thus, the Court has held that if a national law merely encourages or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 36 to 73, and CIF , paragraph 56).
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44 ORDER ISSUED AT A LATER DATE STATED THAT THE AMOUNTS IMPORTED OUTSIDE THE INVITATIONS TO TENDER WERE TO BE RESERVED FOR INDUSTRIAL CONSUMERS AND WERE NOT TO EXCEED IN THE AGGREGATE 20 PER CENT - LATER 25 PER CENT - OF THE MAXIMUM AMOUNT FIXED FOR EACH INVITATION TO TENDER .
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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
Article 5 of Directive 95/46 authorises Member States to specify, within the limits of Chapter II of that directive and, accordingly, Article 7 thereof, the conditions under which the processing of personal data is lawful, the margin of discretion which Member States have pursuant to Article 5 can therefore be used only in accordance with the objective pursued by that directive of maintaining a balance between the free movement of personal data and the protection of private life. Under Article 5 of Directive 95/46, Member States also cannot introduce principles relating to the lawfulness of the processing of personal data other than those listed in Article 7 thereof, nor can they amend, by additional requirements, the scope of the six principles provided for in Article 7 (see, to that effect, judgment of 24 November 2011, ASNEF and FECEMD, C‑468/10 and C‑469/10, EU:C:2011:777, paragraphs 33, 34 and 36).
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33. The foregoing interpretation is not brought into question by Article 5 of Directive 95/46. Article 5 merely authorises Member States to specify, within the limits of Chapter II of that directive and, accordingly, Article 7 thereof, the conditions under which the processing of personal data is lawful.
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52. Although such a taxable person could be obliged, when there are indications pointing to an infringement or fraud, to make enquiries about the trader from wh om he intends to purchase goods or services in order to ascertain the latter’s trustworthiness, the tax authorities cannot, however, as a general rule, require that taxable person, first, to ensure that the issuer of the invoice relating to the goods and services in respect of which the exercise of that right to deduct is sought was in possession of the goods at issue and was in a position to supply them and that he has complied with his obligations as regards the declaration and payment of VAT, in order to be satisfied that there are no irregularities or fraud at the level of the traders operating at an earlier stage of the transaction or, second, to be in possession of documents in that regard (see, to that effect, judgments in Mahagében and Dávid , C‑80/11 and C‑142/11, EU:C:2012:373, paragraphs 60 and 61; Stroy trans , C‑642/11, EU:C:2013:54, paragraph 49, and order in Jagiełło , C‑33/13, EU:C:2014:184, paragraphs 38 and 39).
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86. Thus, where a person’s driving licence has been withdrawn in a Member State, Article 8(4) does not, in principle, authorise that Member State to refuse to recognise the validity of a driving licence subsequently issued to the same person by another Member State outside a period during which no application may be made by him for the issue of a new driving licence (see, to that effect, Kapper , paragraph 76; Wiedemann and Funk , paragraph 64; Zerche and Others , paragraph 60; and the orders in Halbritter , paragraph 27; Kremer , paragraph 29; and Möginger , paragraph 44).
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64. More particularly, the Court has held in paragraph 38 of its order in Kremer that when a person has been the object of a measure withdrawing his driving licence in the territory of a Member State but not including a period in which it is prohibited to apply for a new licence, it is contrary to Article 1(2) in conjunction with Article 8(2) and (4) of Directive 91/439 for that Member State to refuse to recognise, in its territory, the right to drive stemming from a driving licence subsequently issued in another Member State and, therefore, the validity of that licence, so long as the licence-holder has not satisfied the necessary conditions in that first Member State for the issue of a new licence following that withdrawal, including the examination of fitness to drive certifying that the grounds justifying the withdrawal are no longer in existence.
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120. Quant à la troisième branche du quatrième moyen, le respect des droits de la défense exige que les destinataires de décisions qui affectent de manière sensible leurs intérêts soient mis en mesure de faire connaître utilement leur point de vue (arrêt Texdata Software, C-418/11, EU:C:2013:588, point 83 et jurisprudence citée).
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41. Finally, contrary to the Commission’s submissions, it is clear from the Court’s settled case-law that the tax legislation of the Member States is capable of falling within Article 64(1) TFEU (see, inter alia, judgments in Test Claimants in the FII Group Litigation , C‑446/04, EU:C:2006:774, paragraphs 174 to 196; Holböck , C‑157/05, EU:C:2007:297, paragraphs 37 to 45; and Prunus and Polonium , C‑384/09, EU:C:2011:276, paragraphs 27 to 37).
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40. While it is, in principle, for the national court to determine the content of the legislation which existed on a date laid down by a Community measure, the Court can provide guidance on interpreting the Community concept which constitutes the basis of a derogation from Community rules for national legislation ‘existing’ on a particular date (see, to that effect, Case C‑302/97 Konle [1999] ECR I‑3099, paragraph 27, and Test Claimants in the FII Group Litigation , paragraph 191).
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26. La prévention ainsi organisée vise à ce que seules des aides compatibles soient mises à exécution. Afin de réaliser cet objectif, la mise en œuvre d’un projet d’aide est différée jusqu’à ce que le doute sur sa compatibilité soit levé par la décision finale de la Commission (arrêt CELF I, précité, point 48).
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23. Regulation No 1046/2001 makes no express reference to the law of the Member States for the purpose of determining the meaning and scope of the term ‘batch’. It is an independent concept of Community law, the interpretation of which must take into account the context of Article 4(3) of Regulation No 1046/2001 and the purpose of that regulation (see, to that effect, Cases 327/82 Ekro [1984] ECR 107, paragraph 11; C-287/98 Linster [2000] ECR I‑6917, paragraph 43, and C-373/00 Adolf Truley [2003] ECR I‑1931, paragraph 35).
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43 The need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question (Case 327/82 Ekro v Produktschap voor Vee en Vlees [1984] ECR 107, paragraph 11).
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55. That public interest requires that all signs or indications which may serve to designate characteristics of the goods or services in respect of which registration is sought remain freely available to all undertakings in order that they may use them when describing the same characteristics of their own goods. Therefore, marks consisting exclusively of such signs or indications are not eligible for registration unless Article 3(3) of the Directive applies.
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59. The scope of the Directive is very wide, as the Court has already held (see Österreichischer Rundfunk and Others , paragraph 43, and Lindqvist , paragraph 88), and the personal data covered by the Directive are varied. The length of time such data are to be stored, defined in Article 6(1)(e) of the Directive according to the purposes for which the data were collected or for which they are further processed, can therefore differ. Where the length of time for which basic data are to be stored is very long, the data subject’s interest in exercising the rights to object and to remedies referred to in paragraph 57 of the present judgment may diminish in certain cases. If, for example, the relevant recipients are numerous or there is a high frequency of disclosure to a more restricted number of recipients, the obligation to keep the information on the recipients or categories of recipient of personal data and on the content of the data disclosed for such a long period could represent an excessive burden on the controller.
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88. Whilst it is true that the protection of private life requires the application of effective sanctions against people processing personal data in ways inconsistent with Directive 95/46, such sanctions must always respect the principle of proportionality. That is so a fortiori since the scope of Directive 95/46 is very wide and the obligations of those who process personal data are many and significant.
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42. The first point to be noted here is that in the procedure laid down by Article 234 EC providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. In addition, it is to be borne in mind that the Court has a duty to interpret all provisions of Community law necessary to national courts in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (Case C-280/91 Viessmann [1993] ECR I-971, paragraph 17; Case C‑42/96 Immobiliare SIF [1997] ECR I‑7089, paragraph 28; and Case C‑45/06 Campina [2007] ECR I‑2089, paragraphs 30 and 31).
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35. As the Advocate General has observed in point 70 of his Opinion, the absolute terms, with the exception of the case of children under 14 years of age, of the prohibition laid down by the Greek legislation are not appropriate to the objective pursued, since measures which are less restrictive and more in keeping with the freedom to provide services could be adopted, such as a prior authorisation scheme which complies with the requirements imposed by Community law ( Müller-Fauré and van Riet , paragraphs 81 and 85) and, if appropriate, the determination of scales for reimbursement of the costs of treatment.
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81. In those circumstances, a requirement that the assumption of costs, under a national social security system, of hospital treatment provided in a Member State other than that of affiliation must be subject to prior authorisation appears to be a measure which is both necessary and reasonable.
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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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Il convient de rappeler que, aux points 50, 52 et 58 de l’arrêt du 16 mai 2002, France/Commission (C‑482/99, EU:C:2002:294), la Cour a estimé que l’imputabilité à l’État des mesures prises par les entreprises publiques ne pouvait être déduite exclusivement du critère organique. Elle a jugé que, même si l’État est en mesure de contrôler une entreprise publique et d’exercer une influence déterminante sur les opérations de celle-ci, l’exercice effectif de ce contrôle ne saurait être automatiquement présumé. La Cour a estimé qu’il est encore nécessaire d’examiner si les autorités publiques devaient être considérées comme ayant été impliquées, d’une manière ou d’une autre, dans l’adoption de ces mesures (arrêts du 16 mai 2002, France/Commission, C‑482/99, EU:C:2002:294, points 50 à 52, et du 17 septembre 2014, Commerz Nederland, C‑242/13, EU:C:2014:2224, point 31).
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31. As regards imputability to the State, for the purposes of Article 107(1) TFEU, of the provision of those guarantees, it should be noted that that may not be inferred from the mere fact that they have been provided by a public undertaking controlled by the State. Even if the State is in a position to control a public undertaking and to exercise a decisive influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. It is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of those measures (see, to that effect, judgment in France v Commission , EU:C:2002:294, paragraphs 50 to 52).
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39 In that connection, it is not sufficient for the contested decision to pursue a twofold purpose or for an analysis of its content to disclose the existence of a twofold component.
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112. In that regard, it is the case, as is clear from settled case-law, that the Commission enjoys a broad discretion as regards the method for calculating fines. That method, set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3), displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Article 15(2) of Regulation No 17 (see, to that effect, Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraphs 46 and 47, and Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 133).
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47. The Court of Justice has also stated that the calculation method set out in the Guidelines contains various flexible elements, enabling the Commission to exercise its discretion in accordance with Article 15 of Regulation No 17, as interpreted by the Court of Justice (see Dansk Rørindustri and Others v Commission , paragraph 267).
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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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29. That mechanism reflects the idea, on the one hand, that the Member States constitute a single customs territory vis-à-vis third countries concerned by operations under the EU external transit procedure and, on the other hand, that the question as to which Member State has competence to recover customs duties is a problem internal to the European Union, such that if a different Member State becomes the competent State, that does not affect the debtor’s liability to pay the customs duties (see Met-Trans and Sagpol , paragraph 38).
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38 That mechanism therefore reflects the idea, on the one hand, that the Member States constitute a single customs zone vis-à-vis third countries concerned by operations under the Community external transit regime and, on the other hand, that the question as to which Member State has competence to recover the customs duty is a problem internal to the Community, such that if a different Member State becomes the competent State, that does not affect the debtor's liability to pay the customs duties.
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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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52 It is true that Articles 30 and 34 on the abolition of quantitative restrictions and all measures having equivalent effect on imports and exports are regarded as an integral part of the common organization of the market. It follows that once the Community has, pursuant to Article 40 of the Treaty, adopted such legislation in a given sector, the Member States are under an obligation to refrain from taking any measure which might undermine or create exceptions to it (see the judgment in Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraphs 55 and 56).
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55IT FOLLOWS THAT , HAVING REGARD TO THE STRUCTURE OF REGULATION NO 2759/75 , WHICH IS NOW IN FORCE , THE PROVISIONS OF THE TREATY RELATING TO THE ABOLITION OF TARIFF AND COMMERCIAL BARRIERS TO INTRA-COMMUNITY TRADE AND IN PARTICULAR ARTICLES 30 AND 34 ON THE ABOLITION OF QUANTITATIVE RESTRICTIONS AND OF ALL MEASURES HAVING EQUIVALENT EFFECT ON IMPORTS AND EXPORTS ARE TO BE REGARDED AS AN INTEGRAL PART OF THE COMMON ORGANIZATION OF THE 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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52
Where a difference in treatment between two comparable situations is found, the principle of equal treatment is not infringed in so far as that difference is duly justified (see, to that effect, judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 46).
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46. The principle of equal treatment will not, however, be infringed if the different treatment of the steel sector on the one hand and the chemical and non-ferrous metal sectors on the other is justified.
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62 It is clear from the second subparagraph of Article 9(2) of Regulation No 3887/92 that no area-linked aid is to be granted if, in his declaration, a farmer has overstated his set-aside or arable areas by more than 20%, or overstated his forage area by more than 20%. Under the third subparagraph of Article 9(2), however, and as is clear from paragraph 54 of this judgment, farmers who have made a false declaration intentionally or as a result of serious negligence are in any event excluded from the aid scheme concerned for the calendar year in question and even, in the case of a false declaration intentionally made, for the following calendar year. Those penalties are imposed whatever the extent of the difference between the areas declared and those found on inspection.
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53. None the less, the Court has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation of a Community rule bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Bosman , paragraph 61; Acereda Herrera , paragraph 48; and Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 25).
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25. As regards Mr Cipolla’s pleas of inadmissibility, it should be recalled that questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑300/01 Salzmann [2003] ECR I-4899, paragraphs 29 and 31). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39, and Case C-466/04 Acereda Herrera [2006] ECR I-0000, paragraph 48).
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38. Or, il convient de rappeler, à cet égard, que les déchets ont une nature particulière, si bien que leur accumulation, avant même qu’ils ne deviennent dangereux pour la santé, constitue, compte tenu notamment de la capacité limitée de chaque région ou localité à les recevoir, un danger pour l’environnement (arrêt Commission/Italie, C‑297/08, EU:C:2010:115, point 105).
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66. It is therefore appropriate to answer the questions referred by the national court in the order set out in paragraphs 64 and 65, although it must be made clear from the outset that, in so far as the national court is asking the Court of Justice to rule on the compatibility of Presidential Decree No 164/2004 with the Framework Agreement, it is not for the Court, in the context of the procedure provided for in Article 234 EC, to determine whether national provisions are compatible with Community law. The Court may nevertheless provide the national court with all the criteria for the interpretation of Community law which may enable it to assess whether those provisions are so compatible in order to give judgment in the various proceedings before it (see, in particular, Joined Cases C‑145/06 and C‑146/06 Fendt Italiana [2007] ECR I‑5869, paragraph 30).
Measures to prevent abuse within the meaning of clause 5(1) of the Framework Agreement
– The discretion of the Member States where an ‘equivalent legal measure’ exists under national law
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30. As the Commission has rightly pointed out, it is not for the Court, in the context of the procedure provided for in Article 234 EC, to determine whether national provisions are compatible with Community law. However, the Court may provide the national court with all the criteria for the interpretation of Community law which may enable it to assess whether those provisions are so compatible in order to give judgment in the proceedings before it (see, inter alia, Case C‑346/97 Braathens [1999] ECR I‑3419, paragraph 14).
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Ainsi que la Cour l’a jugé, il découle du libellé de cette disposition que, en règle générale et sauf disposition contraire, la présentation de faits et de preuves par les parties demeure possible après l’expiration des délais auxquels se trouve subordonnée une telle présentation en application des dispositions du règlement no 207/2009 et qu’il n’est nullement interdit à l’EUIPO, y compris ses chambres de recours, de tenir compte de faits et de preuves ainsi tardivement invoqués ou produits (arrêts du 13 mars 2007, OHMI/Kaul, C‑29/05 P, EU:C:2007:162, point 42 ; du 26 septembre 2013, Centrotherm Systemtechnik/OHMI et centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, point 77, ainsi que, en ce sens, arrêt du 3 octobre 2013, Rintisch/OHMI, C‑120/12 P, EU:C:2013:638, points 22 à 33).
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84 In the explanatory memorandum to the proposal for a decision, the Commission simply stated that the basic regulation requires that all factors be taken into account, including those expressly listed in Article 3(1), before going on to say that those criteria `are to be considered together' and that it should be noted in that connection that in paragraph 37 of its judgment in Exportur v LOR SA and Confiserie du Tech SA, cited above, `the Court took as a criterion the status of the name in the Member State of origin with a view to establishing whether it had become generic'. However, the Commission did not give any indication whether and to what extent the names which it finally proposed treating as generic fulfilled those criteria or of the reasons for which it considered that the name `Feta' to which it devoted a separate chapter in its explanatory memorandum to the proposal for a decision did not fulfil them.
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37 The aim of the Convention is to prevent the producers of a Contracting State from using the geographical names of another State, thereby taking advantage of the reputation attaching to the products of the undertakings established in the regions or places indicated by those names. Such an objective, intended to ensure fair competition, may be regarded as falling within the sphere of the protection of industrial and commercial property within the meaning of Article 36, provided that the names in question have not, either at the time of the entry into force of that Convention or subsequently, become generic in the country of origin.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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131. With regard to pensions, it must be noted that, according to the settled case-law of the Court in relation to Article 119 of the Treaty, or, with effect from 1 May 1999, in relation to Article 141 EC, which concern the principle of equal treatment of men and women in relation to pay, the term ‘pay’ within the meaning of the second subparagraph of Article 141(2) EC covers pensions which depend on the employment relationship between worker and employer, excluding those deriving from a statutory scheme, to the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship than by considerations of social policy (see, in particular, Case 80/70 Defrenne [1971] ECR 445, paragraphs 7 and 8; Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, paragraphs 16 to 22; Case C‑262/88 Barber [1990] ECR I‑1889, paragraphs 22 to 28; and Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker [2003] ECR I‑12575, paragraphs 56 to 64).
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21 L ' ORIGINE CONVENTIONNELLE , ET NON PAS LEGALE , DU REGIME LITIGIEUX EST CONFIRMEE PAR LE FAIT QUE LEDIT REGIME ET LA REGLEMENTATION Y AFFERENTE SONT CONSIDERES , AINSI QU ' IL A ETE RAPPELE CI-DESSUS , COMME FAISANT PARTIE INTEGRANTE DES CONTRATS DE TRAVAIL ENTRE BILKA ET SES EMPLOYES .
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42. As the Court has stated with regard to Article 5 of Regulation No 1697/79, the objective of conferring on the Commission a power of decision in regard to the post-clearance recovery of customs duties is to ensure the uniform application of Community law. That is likely to be jeopardised in cases where an application to waive post-clearance recovery is allowed, since the assessment which a Member State may make in taking a favourable decision is likely, in actual fact, owing to the probable absence of any appeal, to escape any review by means of which the uniform application of the conditions laid down in the Community legislation may be ensured. On the other hand, that is not the case where the national authorities proceed to effect recovery, whatever the amount in issue. It is then open to the person concerned to challenge such a decision before the national courts. As a result, it will then be possible for the uniformity of Community law to be ensured by the Court of Justice through the preliminary ruling procedure (Case C‑64/89 Deutsche Fernsprecher [1990] ECR I-2535, paragraph 13; Case C-348/89 Mecanarte [1991] ECR I-3277, paragraph 33; and Faroe Seafood and Others , paragraph 34).
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65 That interpretation is also confirmed by settled case-law of the Court (see Kziber, cited above, paragraphs 15 to 23, confirmed by Case C-58/93 Yousfi [1994] ECR I-1353, paragraphs 16 to 19; Case C-103/94 Krid [1995] ECR I-719, paragraphs 21 to 24; Case C-126/95 Hallouzi-Choho v Bestuur van de Sociale Verzekeringsbank [1996] ECR I-4807, paragraphs 19 and 20; and Case C-113/97 Babahenini [1998] ECR I-183, paragraphs 17 and 18) relating to the principle of equal treatment contained in Article 39(1) of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria, signed in Algiers on 26 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1) and to Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 26 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2211/78 (OJ 1978 L 264, p. 1).
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15 Il est de jurisprudence constante ( voir arrêt du 30 septembre 1987, Demirel, point 14, 12/86, Rec . p . 3719 ) qu' une disposition d' un accord conclu par la Communauté avec des pays tiers doit être considérée comme étant d' application directe lorsque, eu égard à ses termes ainsi qu' à l' objet et à la nature de l' accord, elle comporte une obligation claire et précise qui n' est subordonnée, dans son exécution ou dans ses effets, à l' intervention d' aucun acte ultérieur .
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60. However, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person (Case C-176/99 P ARBED v Commission [2003] ECR I-0000, paragraph 21).
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55. It follows from the wording of Article 65(1) of the Staff Regulations that that provision confers discretion on the Council in the annual review of the level of remuneration (see, to that effect, Case 81/72 Commission v Council , paragraphs 7 and 11, and Case 59/81 Commission v Council , paragraphs 20 to 22 and 32).
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22 IT IS TRUE THAT THE WORD ' ' PARTICULAR ' ' IMPLIES THAT ARTICLE 65 DOES NOT REQUIRE THE COUNCIL TO TAKE ACCOUNT EXCLUSIVELY OF CHANGES IN THE SALARIES OF NATIONAL CIVIL SERVANTS WHEN ADJUSTING SALARIES FOR COMMUNITY CIVIL SERVANTS . NEVERTHELESS THE REQUIREMENT IMPOSED BY THAT PROVISION MEANS THAT THE COUNCIL CANNOT , BY REASON OF THE FACT THAT IT TAKES OTHER CRITERIA INTO CONSIDERATION , OMIT TO TAKE ACCOUNT OF ONE OF THE TWO CRITERIA EXPRESSLY REFERRED TO IN THE SECOND SENTENCE OF THE SECOND SUBPARAGRAPH OF ARTICLE 65 ( 1 ).
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24. It is settled case‑law that unfavourable tax treatment contrary to a fundamental freedom cannot be justified by the existence of other tax advantages, even supposing that such advantages exist (see Case C‑385/00 de Groot [2002] ECR I‑11819, paragraph 97 and the case‑law cited).
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58. Next, while the Court has principally interpreted the first subparagraph of Article 8(4) of Directive 91/439 and the second subparagraph of Article 11(4) of Directive 2006/126 (which reproduced the content of the former provision) in the context of cases concerning the possibility, for a person whose driving licence had been subject to a measure of restriction, suspension or withdrawal in the territory of one Member State, of the validity of a driving licence issued by another Member State after the adoption of that measure being recognised by that first Member State (see, in particular, judgments in Wiedemann and Funk , C‑329/06 and C‑343/06, EU:C:2008:366; Zerche and Others , C‑334/06 to C‑336/06, EU:C:2008:367; and Hofmann , C‑419/10, EU:C:2012:240), the wording of those provisions also covers situations such as that at issue in the main proceedings in which the first Member State is refusing to recognise the validity of a driving licence issued by another Member State prior to the decision to restrict, suspend or withdraw that licence.
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50. The Court has held in that respect that Article 8(4) may, however, not be used by a Member State as a basis for refusing indefinitely to recognise, in relation to a person who has been subject in its territory to a measure withdrawing or cancelling a previous licence issued by that State, the validity of any licence that may subsequently, that is to say, after the period of prohibition, be issued to him by another Member State (see, to that effect, Case C‑476/01 Kapper [2004] ECR I‑5205, paragraph 76; Wiedemann and Funk , paragraph 63; Schwarz , paragraph 85; and Order of 6 April 2006 in Case C‑227/05 Halbritter , paragraph 28).
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9 For its part the local distributor requires the end-user to enter into an exclusive purchasing obligation.
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33
As regards the Explanatory Notes to the HS, it should be added that, although they do not have legally binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (see, to that effect, judgments in Kloosterboer Services, C‑173/08, EU:C:2009:382, paragraph 25, and Agroferm, C‑568/11,EU:C:2013:407, paragraph 28). The same is true of the Explanatory Notes of the CN (see, to that effect, judgments in Develop Dr. Eisbein, C‑35/93, EU:C:1994:252, paragraph 21, and British Sky Broadcasting Group and Pace, C‑288/09 and C‑289/09, EU:C:2011:248, paragraph 92).
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28. It should also be recalled that the HS Explanatory Notes are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (see, to that effect, Case C‑11/93 Siemens Nixdorf [1994] ECR I‑1945, paragraph 12; Case C‑15/05 Kawasaki Motors Europe [2006] ECR I‑3657, paragraph 36; and Pacific World and FDD International , paragraph 29).
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23 Entitlement to a retirement pension under an occupational scheme is indissolubly linked to the right to join such a scheme. Membership would be of no interest to employees if it did not confer entitlement to the benefits provided by the scheme.
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34. The principle of equal treatment thus laid down also entails an obligation of transparency (see, to that effect, in relation to public supply contracts, Case C‑275/98 Unitron Scandinavia and 3-S [1999] ECR 8291, paragraph 31, and, in relation to public works contracts, SIAC Construction , paragraph 41).
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31 It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.
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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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99. Moreover, by virtue of the Court’s case-law the Member States cannot unilaterally determine the scope of the provisions of Directive 93/104 by attaching conditions or restrictions to the implementation of the workers’ right under Article 6(2) of the directive not to work more than 48 hours per week (see, to that effect, Jaeger , paragraphs 58 and 59). Any other interpretation would misconstrue the purpose of the directive, which is intended to secure effective protection of the safety and health of workers by allowing them to enjoy minimum periods of rest (see Jaeger , paragraphs 70 and 92).
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92. Secondly, it should be pointed out that the purpose of Directive 93/104 is effectively to protect the safety and health of workers. In light of that essential objective each employee must in particular enjoy adequate rest periods which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work but are also preventive in nature so as to reduce as much as possible the risk of affecting the safety or health of employees which successive periods of work without the necessary rest are likely to produce.
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47. It must also be recalled that, according to the settled case-law of the Court of Justice, an appeal must indicate precisely the alleged flaws in the judgment which the appellant claims should be set aside, and also the legal arguments specifically advanced in support of that claim, failing which the latter is inadmissible (see, inter alia, Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 497 and 618, and Dalmine v Commission , paragraph 153).
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32
It should be borne in mind that Article 56 TFEU requires the abolition of any restriction on the freedom to provide services, even if it applies without distinction to national providers of services and to providers from other Member States, if the restriction is liable to prohibit, impede, or render less advantageous the activities of service providers established in another Member State where they lawfully provide similar services (see to that effect, judgment of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International (C‑42/07, EU:C:2009:519, paragraph 51 and the case-law cited).
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51. Article 49 EC requires the abolition of all restrictions on the freedom to provide services, even if those restrictions apply without distinction to national providers of services and to those from other Member States, when they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where it lawfully provides similar services (see, to that effect, Case C‑76/90 Säger [1991] ECR I-4221, paragraph 12, and Case C-58/98 Corsten [2000] ECR I-7919, paragraph 33). Moreover, the freedom to provide services is for the benefit of both providers and recipients of services (see, to that effect, Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16).
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19 So, the Staff Regulations are intended only to regulate the legal relations between the European institutions and their officials, by establishing a series of reciprocal rights and obligations and by affording certain members of an official's family rights which they may assert in relation to the European Communities.
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78. In this respect, the Court has had occasion to rule that the exception in the first paragraph of Article 45 EC does not extend to certain activities that are auxiliary or preparatory to the exercise of official authority (see, to that effect, Thijssen , paragraph 22; Commission v Spain , paragraph 38; Servizi Ausiliari Dottori Commercialisti , paragraph 47; Commission v Germany , paragraph 38, and Commission v Portugal , paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, Reyners , paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, Thijssen, paragraphs 21 and 22; Case C‑393/05 Commission v Austria , paragraphs 36 and 42; Commission v Germany , paragraphs 38 and 44; and Commission v Portugal , paragraphs 36 and 41), powers of constraint (see, to that effect, inter alia, Commission v Spain , paragraph 37) or powers of coercion (see, to that effect, Case C‑47/02 Anker and Others [2003] ECR I‑10447, paragraph 61, and Commission v Portugal , paragraph 44).
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38. Thus, according to settled case-law, derogation under those articles must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority (see Servizi Ausiliari Dottori Commercialisti , cited above, paragraph 46 and the case-law cited), which excludes from being regarded as connected with the exercise of official authority, within the meaning of that derogation, functions that are merely auxiliary and preparatory vis-à-vis an entity which effectively exercises official authority by taking the final decision ( Thijssen , cited above, paragraph 22).
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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 It must also be noted that Keck and Mithouard, cited above, is concerned only with domestic provisions which limit or prohibit certain selling arrangements and not national legislation designed to regulate trade in goods between Member States (paragraph 12 of the judgment) or which relate to the requirements to be met by the goods in question (paragraph 15 of the judgment).
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12 National legislation imposing a general prohibition on resale at a loss is not designed to regulate trade in goods between Member States.
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85. Article 87(1) EC does not distinguish between the causes or the objectives of State aid, but defines them in relation to their effects (Case C‑56/93 Belgium v Commission [1996] ECR I‑723, paragraph 79; Case C-241/94 France v Commission , paragraph 20; Case C-75/97 Belgium v Commission , paragraph 25; and Case C‑409/00 Spain v Commission , paragraph 46).
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46. The Court has made clear that, in the particular case of a parent company having a 100% shareholding in a subsidiary which has infringed the Union’s rules on competition, that parent company is able to exercise decisive influence over the conduct of its subsidiary, and there is a rebuttable presumption that the parent company does in fact exercise such influence (Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others [2011] ECR I-2239, paragraph 97, and Elf Aquitaine v Commission , paragraph 56).
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97. In the particular case of a parent company having a 100% shareholding in a subsidiary which has infringed the Union’s rules on competition, the parent company is able to exercise decisive influence over the conduct of its subsidiary, and there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of the subsidiary ( Akzo Nobel and Others v Commission , paragraph 60 and the case-law cited).
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31
As regards the applicability of Directive 2014/24, it should be noted that the contract notice at issue in the main proceedings was published on 7 March 2015, that is, before the expiry date of the period for transposition of the relevant provisions of Directive 2014/24, fixed at 18 April 2016 under Article 90(1) thereof.
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44. On the substance of the case, it is settled case-law that the essential function of a trade mark is to guarantee the identity of origin of the marked goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin (see Case 3/78 Centrafarm [1978] ECR 1823, paragraphs 11 and 12; Case C-379/97 Upjohn [1999] ECR I-6927, paragraph 21, and Case C-206/01Arsenal Football Club [2002] ECR I-10273, paragraph 48).
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11IN RELATION TO TRADE-MARKS , THE SPECIFIC SUBJECT-MATTER IS IN PARTICULAR THE GUARANTEE TO THE PROPRIETOR OF THE TRADE-MARK THAT HE HAS THE EXCLUSIVE RIGHT TO USE THAT TRADE-MARK FOR THE PURPOSE OF PUTTING A PRODUCT INTO CIRCULATION FOR THE FIRST TIME AND THEREFORE HIS PROTECTION AGAINST COMPETITORS WISHING TO TAKE ADVANTAGE OF THE STATUS AND REPUTATION OF THE MARK BY SELLING PRODUCTS ILLEGALLY BEARING THAT TRADE-MARK .
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44. Respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 10; Case C‑310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 21; and Aalborg Portland and Others v Commission , paragraph 66).
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38. The first condition entails, first of all, adoption of the project by a specific legislative act. It should be pointed out in this regard that the terms ‘project’ and ‘consent’ are defined in Article 1(2) of Directive 85/337. Thus, a legislative act adopting a project must, if it is to come within the ambit of Article 1(5) of the directive, be specific and display the same characteristics as a consent of that kind. It must in particular grant the developer the right to carry out the project (see WWF and Others , paragraph 58).
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58 With regard to the first condition, it is to be observed that Article 1(2) of the Directive refers not to legislative acts but to development consent, which it defines as `the decision of the competent authority or authorities which entitles the developer to proceed with the project'. Therefore, if it is a legislative act, instead of a decision of the competent authorities, which grants the developer the right to carry out the project, that act must be specific and display the same characteristics as the development consent specified in Article 1(2) of the Directive.
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18 It follows from the case-law of the Court (see especially the judgments in Case C41/90 Hoefner and Elser v Macrotron GmbH [1991] ECR I-1979, at paragraph 21, and in Joined Cases C-159/91 and C-160/91 Poucet et Pistre [1993] ECR I-637, at paragraph 17) that, in Community competition law, the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed.
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21 In that regard, it should be recalled, first, that it is settled case-law that the time-limits laid down in Article 7 of Annex IX to the Staff Regulations are not mandatory but constitute rules of sound administration with the result that a failure to observe those time-limits may render the institution liable for any damage caused to those concerned, but cannot of itself affect the validity of a disciplinary sanction imposed after their expiry (see Van Eick v Commission, cited above, paragraphs 3 to 7, F. v Commission, cited above, paragraph 30, and M. v Council, cited above, paragraph 16).
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5 HOWEVER, TO ADMIT THAT IT IS OF NO EFFECT WOULD DEVEST THIS PROVISION OF ITS LEGAL CONTENT .
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15 It should be further observed that the economic consequences of an infringement of Regulation No 543/69 vary not only according to the system of criminal liability introduced by the Member State in question but also according to the level of the fine imposed and the degree of effectiveness of the checks carried out . Accordingly, the introduction of a system of strict criminal liability does not in itself involve a distortion of the conditions of competition .
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31. According to the referring court, the national legislation transposing the directive is not applicable to nationals of the Republic of Bulgaria. However, that fact cannot have the effect of preventing a national court from giving full effect to the rules of European Union law, if necessary by refusing to apply any provision of national legislation which is contrary to European Union law and in particular to Article 27 of Directive 2004/38 (see, to that effect, inter alia, Case C‑173/09 Elchinov [2010] ECR I‑0000, paragraph 31 and case-law cited), given that the provisions of that article, which are unconditional and sufficiently precise, may be relied on by an individual vis-à-vis the Member state of which he is a national (see, by analogy, Case 41/74 van Duyn [1974] ECR 1337, paragraphs 9 to 15).
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9 THE SECOND QUESTION ASKS THE COURT TO SAY WHETHER COUNCIL DIRECTIVE NO 64/221 OF 25 FEBRUARY 1964 ON THE CO-ORDINATION OF SPECIAL MEASURES CONCERNING THE MOVEMENT AND RESIDENCE OF FOREIGN NATIONALS WHICH ARE JUSTIFIED ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH IS DIRECTLY APPLICABLE SO AS TO CONFER ON INDIVIDUALS RIGHTS ENFORCEABLE BY THEM IN THE COURTS OF A MEMBER STATE .
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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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20. It is common ground that a benefit such as interim assistance, which forms part of the benefits awarded to employees in the event of dismissal, comes within the substantive scope of the provisions cited in the preceding paragraph and that a frontier worker in Mr Merida’s situation may rely on those provisions in regard to such a benefit (see, in that connection, Case C-35/97 Commission v France [1998] ECR I-5325, paragraphs 36, 40 and 41).
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41 The application of Article 7(1) of Regulation No 1612/68 to the present case cannot be precluded by the fact that the concessionary points system benefits persons whose contract of employment has terminated. Workers are guaranteed certain rights linked to their status as such, including those referred to in Article 7(1) of Regulation No 1612/68 concerning conditions of dismissal, even when they are no longer in an employment relationship (see, to that effect, Case 39/86 Lair v Universität Hannover [1988] ECR 3161, paragraph 36).
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33 In this instance it is clear that several of the provisions of Directive 98/5 lay down rules intended to protect consumers and to ensure the proper administration of justice.
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41. It is true that, according to well-established case-law, discrimination can also arise through the application of the same rule to different situations (see Case C‑279/93 Schumacker [1995] ECR I-225, paragraph 30, and Case C-311/97 Royal Bank of Scotland [1999] ECR I-2651, paragraph 26).
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30 It is also settled law that discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations.
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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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88. Furthermore, in view of the need to strike a balance between certain of the objectives and principles mentioned in Article 130r of the EC Treaty (now, after amendment, Article 174 EC), the Directive, having paragraph 1 of Article 130s of the Treaty as its legal basis (which was intended to achieve the objectives of Article 130r), and in view of the complexity of implementing the criteria which the Community legislature must observe in conducting environmental policy, review by the Court must necessarily be limited to the question whether the Council, by adopting the Directive, committed a manifest error of appraisal (see, to that effect, Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, paragraph 37).
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37 However, in view of the need to strike a balance between certain of the objectives and principles mentioned in Article 130r and of the complexity of the implementation of those criteria, review by the Court must necessarily be limited to the question whether the Council, by adopting the Regulation, committed a manifest error of appraisal regarding the conditions for the application of Article 130r of the Treaty.
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8FOR FAMILY ALLOWANCES TO BE REGARDED AS ' ' PAYABLE ' ' UNDER THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE MEMBERS OF THE FAMILY ARE RESIDING THE LAW OF SUCH STATE OF RESIDENCE MUST RECOGNIZE THE RIGHT TO THE PAYMENT OF ALLOWANCES IN FAVOUR OF THE PERSON IN THAT FAMILY WHO WORKS IN SUCH STATE .
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38
According to recital 8 of Decision 2011/278, the Commission used, for the determination of benchmark values, as a starting point the arithmetic average of the greenhouse gas performance of the 10% most efficient greenhouse gas installations in 2007 and 2008 for which data were collected. It verified that the starting point sufficiently reflected the most efficient techniques, substitutes, alternative production processes, high efficiency cogeneration, efficient energy recovery of waste gases, use of biomass and capture and storage of CO2, where such facilities are available. Subsequently, the Commission supplemented those data by using, in particular, the data collected by or on behalf of the various European sector associations, based on defined rules, so-called ‘sector rule books’. As reference for these rule books, the Commission provided guidance on quality and verification criteria (judgment of 8 September 2016, Borealis and Others, C‑180/15, EU:C:2016:647, paragraph 46).
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46
According to recital 8 of Decision 2011/278, the Commission used, for the determination of benchmark values, as a starting point the arithmetic average of the greenhouse gas performance of the 10% most greenhouse gas efficient installations in 2007 and 2008 for which data were collected. It verified that the starting point sufficiently reflected the most efficient techniques, substitutes, alternative production processes, high efficiency cogeneration, efficient energy recovery of waste gases, use of biomass, and the capture and storage of carbon dioxide, where such facilities are available. Subsequently, the Commission supplemented those data by using, in particular, the data collected by or on behalf of the various European sector associations, based on defined rules, so-called ‘sector rule books’. As reference for these rule books, the Commission provided guidance on quality and verification criteria.
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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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25. As regards the argument that the General Court misinterpreted a number of items of correspondence between persons within the Tomra group in its reasoning in relation to Tomra’s commercial strategy, it must further be observed that, in accordance with settled case‑law, it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see Case C‑535/06 P Moser Baer India v Council [2009] ECR I‑7051, paragraph 31 and case‑law cited).
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31. In that regard, it should be recalled that, according to settled case‑law, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, inter alia, Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 51; Case C‑266/06 P Evonik Degussa v Commission , judgment of 6 April 2008, not published in the ECR, paragraph 72; and Joined Cases C‑101/07 P and C‑110/07 P Coop de Fra nce bétail et viande and Others v Commission [2008] ECR I‑0000, paragraph 58).
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36 That provision thus sets a series of objectives, principles and criteria which the Community legislature must respect in implementing environmental policy.
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38. Accordingly, pursuant to that article, the General Court is called upon to assess the legality of the decisions of the Boards of Appeal by reviewing their application of European Union law, having regard, in particular, to the facts which were submitted to them (see, by analogy, Case C-16/06 P Les Éditions Albert René v OHIM [2008] ECR I-10053, paragraph 38, and order of 28 March 2011 in Case C-418/10 P Herhof v OHIM , paragraph 47).
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38. Pursuant to Article 63(2) of Regulation No 40/94, the Court of First Instance is called upon to assess the legality of the decisions of the Boards of Appeal of OHIM by reviewing their application of Community law, having regard, in particular, to the facts which were submitted to them (see, to that effect, judgment of 4 October 2007 in Case C-311/05 P Naipes Heraclio Fournier v OHIM , paragraph 38 and the case-law cited).
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41 A benefit such as that in issue, the payment of which is dependent on the prior existence of an employment relationship which has recently come to an end, meets those conditions, since entitlement to the benefit is intrinsically linked to the recipients' objective status as workers.
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Concernant la décharge de Legazpia, le Royaume d’Espagne tente de justifier le non-respect du délai fixé dans l’avis motivé
pertinent en invoquant des considérations environnementales et les dispositions sur la hiérarchie des déchets de la directive
2008/98. À cet égard, il suffit de constater que cette directive ne modifie pas les obligations qui incombent à cet État membre
en vertu de la directive 1999/31. En effet, comme l’énonce son article 1er, cette dernière directive a pour objet de prévoir des mesures visant notamment à protéger l’environnement dans le cadre de
la mise en décharge des déchets. Dès lors, un État membre ne saurait invoquer un argument tiré de la prétendue sauvegarde
de l’environnement pour justifier l’absence d’adoption de mesures permettant la mise en œuvre des obligations qui lui incombent
en vertu de la directive 1999/31 (voir, par analogie, arrêt Commission/Bulgarie, C‑145/14, EU:C:2015:502, point 60).
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60. S’agissant du troisième moyen de défense relatif aux impératifs résultant de la protection de la santé qui empêcheraient un État membre de cesser l’exploitation de décharges existantes non conformes aux prescriptions de la directive 1999/31 avant l’ouverture de nouvelles décharges, il importe de rappeler qu’un État membre ne saurait exciper de son propre comportement fautif pour justifier le manquement aux obligations qui lui incombent en vertu de l’article 14, sous a) à c), de la directive 1999/31. Comme le prévoit l’article 1 er de cette directive, lu à la lumière du considérant 6 de celle-ci, la mise en décharge dans des sites conformes aux exigences de ladite directive vise précisément à protéger la santé humaine. Dès lors, un État membre ne saurait invoquer un argument tiré de la prétendue sauvegarde de la santé humaine pour justifier l’absence d’adoption de mesures permettant la mise en œuvre des obligations qui lui incombent en vertu de la même directive.
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21. The right to determine the questions to be put to the Court thus devolves upon the national court alone and the parties may not change their tenor (see, inter alia, Case 44/65 Singer [1965] ECR 1191, 1198; Case C‑412/96 Kainuun Liikenne and Pohjolan Liikenne [1998] ECR I‑5141, paragraph 23; and Case C‑402/98 ATB and Others [2000] ECR I‑5501, paragraph 29).
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