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67. It should be noted at the outset that the provisions of Articles 39 EC, 49 EC and 50 EC confer on individuals rights which are enforceable by them and which the national courts must protect (see Case 33/74 Van Binsbergen [1974] ECR 1299, paragraph 26, and Case 41/74 Van Duyn [1974] ECR 1337, paragraph 7).
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26 THEREFORE, AS REGARDS AT LEAST THE SPECIFIC REQUIREMENT OF NATIONALITY OR OF RESIDENCE, ARTICLES 59 AND 60 IMPOSE A WELL-DEFINED OBLIGATION, THE FULFILMENT OF WHICH BY THE MEMBER STATES CANNOT BE DELAYED OR JEOPARDIZED BY THE ABSENCE OF PROVISIONS WHICH WERE TO BE ADOPTED IN PURSUANCE OF POWERS CONFERRED UNDER ARTICLES 63 AND 66 .
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8 Although it is not for the Court, in proceedings under Article 177 of the Treaty, to rule on the compatibility of rules of domestic law with Community law, it is none the less competent to give the national court full guidance on the interpretation of Community law in order to enable it to determine whether those rules are so compatible.
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101. It follows that, even where its application is thus less favourable, national social security legislation is still compatible with Article 21 TFEU as long as it does not simply result in the payment of social security contributions on which there is no return (see, by analogy, Joined Cases C‑393/99 and C‑394/99 Hervein and Others [2002] ECR I‑2829, paragraph 51; Case C‑493/04 Piatkowski [2006] ECR I‑2369, paragraph 34; and Case C‑50/05 Nikula [2006] ECR I‑7029, paragraph 30).
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34. The Court has held, in this respect, that the EC Treaty offers no guarantee to a worker that extending his activities into more than one Member State or transferring them to another Member State will be neutral as regards social security. Given the disparities in the social security legislation of the Member States, such an extension or transfer may be to the worker’s advantage in terms of social security or not, according to circumstance. It follows that, even where its application is less favourable, such legislation is still compatible with Articles 48 and 52 of the Treaty if it does not place the worker at a disadvantage as compared with those who pursue all their activities in the Member State where it applies or as compared with those who were already subject to it and if it does not simply result in the payment of social security contributions on which there is no return (see, to that effect, Hervein and Others , paragraph 51).
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63 It should be added that any procedural or other difficulties in regard to the implementation of the contested measure cannot have any influence on the lawfulness of the measure .
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17. The Sąd Najwyższy observes that the Court has held that Article 58 of the 2003 Act of Accession precludes obligations contained in Community legislation which has not been published in the Official Journal of the European Union in the language of a new Member State, where that language is an official language of the European Union, from being imposed on individuals in that State, even though those persons could have become acquainted with that legislation by other means (Case C‑161/06 Skoma-Lux [2007] ECR I‑10841, paragraphs 57 to 59, and Case C‑560/07 Balbiino [2009] ECR I‑4447, paragraph 30).
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57. The question before the referring court is whether a regulation which has not been published in the language of a Member State is invalid in the light of the first sentence of Article 254(2) EC, Articles 2 and 58 of the Act concerning the conditions of accession and Articles 4 and 5 of Regulation No 1.
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37. Moreover, the transactions exempt from VAT under those provisions are, by their nature, financial transactions even though they do not necessarily have to be carried out by banks or financial institutions (see judgments in Velvet & Steel Immobilien , C‑455/05, EU:C:2007:232, paragraphs 21 and 22 and the case-law cited, and Granton Advertising , C‑461/12, EU:C:2014:1745, paragraph 29).
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17. According to the Court’s settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (Case 292/82 Merck [1983] ECR 3781, paragraph 12, and Joined Cases C‑554/03 and C‑545/03 Mobistar and Belgacom Mobile [2005] ECR I-7723, paragraph 39) and also the provisions of Community law as a whole (Case 283/81 Cilfit and Others [1982] ECR 3415, paragraph 20). Moreover, the primacy of international agreements concluded by the Community over secondary Community legislation requires that the latter, in so far as possible, be interpreted in conformity with those agreements (Case C‑311/04 Algemene Scheeps Agentuur Dordrecht [2006] ECR I-609, paragraph 25 and the case-law cited).
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12 IF THE WORDING OF THE CONTESTED REGULATIONS , READ TOGETHER WITH THE ANNEX TO REGULATION NO 1400/78 ONLY , IS REFERRED TO , THEN , AS THE FINANZGERICHT POINTS OUT , THE EXPORT REFUNDS ON MANNITOL AND SORBITOL SHOULD IN ANY EVENT BE GRANTED FOR THE PERIOD IN QUESTION AT THE REDUCED RATES SET OUT IN TABLE I OF THE ANNEX TO THE CONTESTED REGULATIONS . HOWEVER , AS THE COURT HAS EMPHASIZED IN PREVIOUS DECISIONS , IN INTERPRETING A PROVISION OF COMMUNITY LAW IT IS NECESSARY TO CONSIDER NOT ONLY ITS WORDING BUT ALSO THE CONTEXT IN WHICH IT OCCURS AND THE OBJECTS OF THE RULES OF WHICH IT IS PART .
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34 The acetyl content of starch is an indicator of the extent to which substitution has taken place: the higher the acetyl content, the more extensive the modification of the starch. Starch with a very low acetyl content may therefore be close to native starch.
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34. Second, it is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters (see, inter alia, Case C‑339/98 Peacock EU:C:2000:573, paragraph 9; Case C‑495/03 Intermodal Transports EU:C:2005:105, paragraph 47; Case C‑376/07 Kamino International Logistics EU:C:2009:105, paragraph 31; and Joined Cases C‑288/09 and C‑289/09 British Sky Broadcasting Group and Pace EU:C:2011:248, paragraph 60).
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9 As the Court has repeatedly held, the decisive criterion for the customs classification of goods must be sought generally in their objective characteristics and qualities, as defined in the relevant heading of the Common Customs Tariff and in the notes to the sections or chapters (see, in particular, Case C-11/93 Siemens Nixdorf [1994] ECR I-1945, paragraph 11, and Case C-382/95 Techex [1997] ECR I-7363, paragraph 11).
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17 In that context, all the Commission can do is to draw the attention of the Member States to the Community rules which they must apply and, in cooperating with the Member States at the administrative level, give them its interpretation as to the application of those rules. That interpretation has no binding force and neither the competent authorities of the Member States nor, still less, individuals, can be bound by it.
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34. In that regard, it must be recalled that, under Article 83 of the Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular where it considers that it lacks sufficient information, where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the persons referred to in Article 23 of the Statute of the Court of Justice of the European Union (see judgment in Commission v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 27 and the case-law cited).
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27. In that regard, it must be recalled that, under Article 83 of the Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular where it considers that it lacks sufficient information, where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the persons referred to in Article 23 of the Statute of the Court of Just ice of the European Union (judgment in Buono and Others v Commission , C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraph 26 and the case-law cited).
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37. However, the requirements deriving from the protection of the free movement of goods enshrined, inter alia , in Articles 28 EC and 30 EC may mean that that rule of evidence needs to be qualified.
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30. In that regard, it must be borne in mind, firstly, that, in accordance with established case-law, the subject-matter of an action for failure to fulfil obligations is determined by the Commission’s reasoned opinion (Case 39/72 Commission v Italy [1973] ECR 101, paragraph 9, and Case C‑236/05 Commission v United Kingdom [2006] ECR I‑10819, paragraph 10 and the case-law cited). Consequently, whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (Case C‑161/02 Commission v France [2003] ECR I‑6567, paragraph 6, and Case C‑158/09 Commission v Spain [2010] ECR I‑0000, paragraph 7).
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9 THE OBJECT OF AN ACTION UNDER ARTICLE 169 IS ESTABLISHED BY THE COMMISSION' S REASONED OPINION, AND EVEN WHEN THE DEFAULT HAS BEEN REMEDIED SUBSEQUENTLY TO THE TIME LIMIT PRESCRIBED BY PARAGRAPH 2 OF THE SAME ARTICLE, PURSUIT OF THE ACTION STILL HAS AN OBJECT .
THIS OBJECT HOLDS IN THE PRESENT CASE SINCE, AS REGARDS THE PREMIUMS FOR SLAUGHTERING THE OBLIGATION PLACED ON THE ITALIAN REPUBLIC IS FAR FROM BEING COMPLETELY PERFORMED; THE QUESTION OF THE PAYMENT TO THOSE ENTITLED OF INTEREST ON THE OVERDUE PAYMENTS, IS NOT SETTLED, AND THE COMPLAINTS DEVELOPED BY THE COMMISSION IN THE COURSE OF THE PROCEEDINGS RELATE NOT ONLY TO THE DELAY IN CARRYING OUT THE REGULATIONS BUT ALSO TO CERTAIN OF THE METHODS OF APPLICATION WHICH HAVE IN EFFECT WEAKENED THEIR EFFICACITY .
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63. The Court has also held, however, that a policy of controlled expansion of gambling activities may be consistent with the objective of channelling them into controlled circuits by drawing gamblers away from clandestine, prohibited betting and gaming to activities which are authorised and regulated. Such a policy may be consistent both with the objective of preventing the use of gambling activities for criminal or fraudulent purposes and with that of preventing incitement to squander money on gambling and of combating addiction to gambling, by directing consumers towards the offer emanating from the holder of the public monopoly, that offer being deemed to be free from criminal elements and designed to safeguard consumers more effectively against squandering of money and addiction to gambling ( Stoß and Others , paragraphs 101 and 102).
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46
In matters concerning the common agricultural policy, the EU legislature has a broad discretion which corresponds to the political responsibilities given to it by Articles 40 and 43 TFEU; accordingly the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate, having regard to the objective which the competent institution is seeking to pursue (see, to that effect, judgments of 16 December 1999, UDL, C‑101/98, EU:C:1999:615, paragraph 31, and of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 48).
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31 It is also settled case-law that, as regards judicial review of the observance of the abovementioned conditions, the Community legislature has, in matters concerning the common agricultural policy, a discretionary power which corresponds to the political responsibilities placed upon it by Article 40 of the EC Treaty (now, after amendment, Article 34 EC), Articles 41 and 42 of the EC Treaty (now Articles 35 EC and 36 EC) and Article 43 of the EC Treaty (now, after amendment, Article 37 EC). Consequently, the legality of a measure adopted in this area can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (Fedesa and Others, cited above, paragraph 14, and United Kingdom v Commission, paragraph 97).
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33 It follows that Directives 89/369 and 89/429 impose on the Member States obligations, formulated in clear and unequivocal terms, to achieve a certain result, in order that their incineration plants meet detailed and precise requirements within the stated time-limits.
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48. That advantage does not place women employees in a specific situation vis-à-vis men employees, as the situations of men and women are identical so far as the conditions governing termination of the employment relationship are concerned (see Kleist , paragraph 37 and the case-law cited).
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37. That advantage cannot place female workers in a specific situation vis-à-vis male workers, as men and women are in identical situations so far as concerns the conditions governing termination of employment (see, to this effect, Case 151/84 Roberts [1986] ECR 703, paragraph 36).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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47. The Court thus has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case 13/68 Salgoil [1968] ECR 453, Case 51/74 Van der Hulst [1975] ECR 79, paragraph 12, and Case C-320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I-285, paragraph 11, and Lirussi and Bizzaro , cited above, paragraph 38).
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38 The Court has no jurisdiction to give a ruling on the facts in an individual case or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see Case 13/68 Salgoil [1968] ECR 453, Case 51/74 Van der Hulst [1975] ECR 79, paragraph 12, and Case C-320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I-285, paragraph 11) .
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42. If the taxable person were denied deduction of input VAT payable for subsequent taxable business uses, despite his initial wish to allocate the capital goods in their entirety to his business, with future transactions in mind, he would not be relieved entirely of the burden of the tax relating to the asset which he uses for the purposes of his economic activity and the taxation of his business activities would lead to double taxation contrary to the principle of fiscal neutrality inherent in the common system of VAT (see, to that effect, Puffer , paragraphs 45 and 46).
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53. However, in order for an argument based on such a justification to succeed, a direct link must be established between the grant of the tax advantage concerned and the offsetting of that advantage by a particular tax levy (see, to that effect, Case C-484/93 Svensson and Gustavsson [1995] ECR I-3955, paragraph 18; Case C-107/94 Asscher [1996] ECR I-3089, paragraph 58; Case C-264/96 ICI [1998] ECR I‑4695, paragraph 29; Vestergaard , paragraph 24; Case C-436/00 X and Y [2002] ECR I-10829, paragraph 52).
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29 It is true that in the past the Court has accepted that the need to maintain the cohesion of tax systems could, in certain circumstances, provide sufficient justification for maintaining rules restricting fundamental freedoms (see, to this effect, Case C-204/90 Bachmann [1992] ECR I-249 and Case C-300/90 Commission v Belgium [1992] ECR I-305). Nevertheless, in the cases cited, there was a direct link between the deductibility of contributions from taxable income and the taxation of sums payable by insurers under old-age and life assurance policies, and that link had to be maintained in order to preserve the cohesion of the tax system in question. In the present case, there is no such direct link between the consortium relief granted for losses incurred by a resident subsidiary and the taxation of profits made by non-resident subsidiaries.
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51 It emerges clearly from paragraph 10 of this judgment that Regulation No 3887/92 aims to introduce provisions which effectively prevent and penalize irregularities and fraudulent acts. Moreover, according to the first recital to that regulation, the purpose of the integrated system is to enable the reform of the common agricultural policy to be implemented efficiently and in particular to solve the administrative problems caused by the introduction of several area-linked aid schemes.
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57. So far as concerns judicial review of compliance with this principle, bearing in mind the wide discretion enjoyed by the Community legislature in matters concerning the common agricultural policy, the legality of a measure adopted in that field can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 14; Joined Cases C-133/93, C‑300/93 and C-362/93 Crispoltoni and Others [1994] ECR I‑4863, paragraph 42; Jippes , paragraph 82; and IATA and ELFAA , paragraph 80).
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80. With regard to judicial review of the conditions referred to in the previous paragraph, the Community legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see, to this effect, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 58; Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraphs 55 and 56; Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, paragraph 61; and British American Tobacco (Investments) and Imperial Tobacco , paragraph 123). That is so, in particular, in the field of the common transport policy (see, to this effect, in particular, Joined Cases C-248/95 and C-249/95 SAM Schiffahrt and Stapf [1997] ECR I-4475, paragraph 23, and Joined Cases C‑27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569, paragraph 63).
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83 On the other hand, certain circumstances may constitute evidence that the holder has discarded the substance or intends or is required to discard it within the meaning of Article 1(a) of the directive.
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38. In so deciding, the Court held, in paragraphs 45 to 47 of the judgment in My (C‑293/03, EU:C:2004:821) and in paragraphs 29 to 32 of the order in Ricci and Pisaneschi (C‑286/09 and C‑287/09, EU:C:2010:420), that the legislation at issue in the cases which gave rise to that judgment and that order could impede the recruitment by the EU institutions or bodies of national officials with a certain length of service.
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46. That is also the case where a Member State refuses to take into account, for the purposes of entitlement to an early retirement pension under its own scheme, periods of employment under the Community pension scheme.
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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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52. Dans l’exercice de son pouvoir d’appréciation en la matière, il incombe à la Cour de fixer l’astreinte de sorte que celle-ci soit, d’une part, adaptée aux circonstances et, d’autre part, proportionnée au manquement constaté ainsi qu’à la capacité de paiement de l’État membre concerné (voir, notamment, arrêts Commission/Belgique, C‑533/11, EU:C:2013:659, point 68, et Commission/Suède, C‑243/13, EU:C:2014:2413, point 50).
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50. Il convient de rappeler que, dans l’exercice de son pouvoir d’appréciation en la matière, il incombe à la Cour de fixer l’astreinte de telle sorte que celle-ci soit, d’une part, adaptée aux circonstances et, d’autre part, proportionnée au manquement constaté ainsi qu’à la capacité de paiement de l’État membre concerné (arrêt Commission/Italie, EU:C:2011:740, point 56 et jurisprudence citée).
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8 The Spanish Government contended in addition that the extension of the transitional scheme on exemptions beyond the period provided for in Article 28(4) allows Article 28(4)(3)(b) to be interpreted as meaning that Member States may reintroduce into their law the exemption of the activities in question, in particular where it is necessary to ensure equality of treatment for authors residing in their territory in relation to authors residing in the territory of other Member States who continue to grant such exemption.
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41
In order to establish the existence of the second element, which relates to the intention of operators, account may be taken, in particular, of the purely artificial nature of the transactions concerned (see, to that effect, judgments of 14 December 2000 in Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraphs 53 and 58; of 21 February 2006 in Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 81; of 21 February 2008 in Part Service, C‑425/06, EU:C:2008:108, paragraph 62; and of 13 March 2014 in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 33).
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81. As regards the second element, whereby the transactions concerned must essentially seek to obtain a tax advantage, it must be borne in mind that it is the responsibility of the national court to determine the real substance and significance of the transactions concerned. In so doing, it may take account of the purely artificial nature of those transactions and the links of a legal, economic and/or personal nature between the operators involved in the scheme for reduction of the tax burden (see, to that effect, Emsland Stärke , paragraph 58).
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53
In providing for this method of free allocation of allowances, fully-harmonised on a sectoral basis, the legislature gave concrete expression to the essential requirement that distortions of competition in the internal market be minimised.
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36 That being so, it is to be remembered, first, that, according to settled case-law of the Court, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. Second, according to the same case-law, when applying domestic law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty (see, inter alia, Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraphs 6 and 8, and Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraphs 20 and 26).
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6 With regard to the question whether an individual may rely on the directive against a national law, it should be observed that, as the Court has consistently held, a directive may not of itself impose obligations on an individual and, consequently, a provision of a directive may not be relied upon as such against such a person ( judgment in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723 ).
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38. Furthermore, such a situation corresponds to that described at paragraphs 34 and 39 of the explanatory memorandum, in which the Commission of the European Communities stated, first, that the requirement that the product must have obtained a valid MA is met ‘if the proprietary medicinal product containing it has been granted the [MA] concerned’ and, second, that in such a situation, ‘where the product authorised consists of a combination of compound X and another active ingredient, only compound X will be protected by the certificate’.
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23. It is also by an assessment in concreto that the competent authority must determine whether or not the sign is descriptive of the characteristics of the goods or services concerned within the meaning of Article 3(1)(c) of Directive 2008/95 or gives rise to any other ground listed also in Article 3 for the refusal of registration ( Koninklijke KPN Nederland , EU:C:2004:86, paragraphs 31 and 32).
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31. Second, when the competent authority examines a trade mark application and, for that purpose, must determine, inter alia, whether or not the mark is devoid of any distinctive character, whether or not it is descriptive of the characteristics of the goods or services concerned and whether or not it has become generic, it cannot carry out the examination in the abstract.
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60. Consequently, the Court finds that the risk of serious economic difficulties, as contemplated in the case-law referred to in paragraphs 56 and 57 of this judgment, such as to justify placing a temporal limitation on the effects of this judgment, has not been established.
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34
The courts of the Member State in which the centre of interests of the person affected is located are, consequently, best placed to assess the impact of such content on the rights of that person (see, to that effect, judgment of 25 October 2011, eDate Advertising and Others, C‑509/09 and C‑161/10, EU:C:2011:685, paragraph 48).
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48. The connecting criteria referred to in paragraph 42 of the present judgment must therefore be adapted in such a way that a person who has suffered an infringement of a personality right by means of the internet may bring an action in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred. Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice, referred to in paragraph 40 above.
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59 It points out that the Commission, while acknowledging that the five new Länder of Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and Thuringia were designated as assisted areas pursuant to Article 92(3)(a) of the Treaty until the end of 1999, considers that the contested measure is not compatible with the common market. By so doing, the Commission misinterprets the requirements of that provision.
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46
Thus, in accordance with Articles 12 and 13 of the Universal Service Directive, in order to determine the amount of any compensation due to an undertaking designated to provide a universal service, it is necessary, as a first step, to calculate the net cost of the universal service obligation to the undertaking designated as the provider and, next, where national regulatory authorities find that an undertaking is subject to an unfair burden, those authorities must decide to introduce a mechanism to compensate that undertaking for the determined net costs, transparently and from public funds, and/or to share the net cost of universal service obligations between providers of electronic communications networks and services (see judgment of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic , C‑508/14, EU:C:2015:657, paragraph 33).
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33. According to Articles 12 and 13 of Directive 2002/22, in order to determine the amount of compensation that may be due to an undertaking designated to provide universal service, it is necessary, as a first step, to calculate the net cost of the universal service obligation for the undertaking designated as provider and, next, where the national regulatory authorities find that an undertaking is subject to an unfair burden, those authorities must decide to introduce a mechanism to compensate that undertaking for the determined net costs, and/or to share the net cost of universal service obligations between providers of electronic communications networks and services.
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20. Under Article 51(1) thereof, the provisions of the Charter are addressed to the Member States only when they are implementing EU law. Article 6(1) TEU and Article 51(2) of the Charter specify that the provisions of the Charter are not to extend in any way the competences of the Union as defined in the Treaties. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it (see Case C‑256/11 Dereci and Others [2011] ECR I‑11315, paragraph 71 and the case-law cited).
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33
It should be recalled that the flat-rate scheme is a scheme which derogates from and is an exception to the general scheme of the VAT Directive and which must therefore be applied only to the extent necessary to achieve its objective (judgments of 15 July 2004, Harbs, C‑321/02, EU:C:2004:447, paragraph 27; of 8 March 2012, Commission v Portugal, C‑524/10, EU:C:2012:129, paragraph 49; and of 12 October 2016, Nigl and Others, C‑340/15, EU:C:2016:764, paragraph 37).
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27. First of all, it should be observed that Article 25(1) of the Sixth Directive confers on the Member States the right to apply a common flat-rate scheme to farmers where the application to them of the normal VAT scheme, or the simplified scheme provided for in Article 24 of that directive, would give rise to difficulties. That special scheme, which is applicable to certain farmers, is therefore an exception to the general scheme provided for in the Sixth Directive. That it is an exception is, as the Advocate General stated in point 31 of his Opinion, confirmed by the fact that, under Article 25(9) and (10), the Member States may exclude from that scheme certain categories of farmer and that any flat-rate farmer is entitled to opt for application of the normal scheme or the simplified scheme. Like the other special schemes provided for in Articles 24 and 26 of the Sixth Directive, the scheme under Article 25 must therefore be applied only to the extent necessary to achieve its objective (see, in respect of the application of the scheme provided for in Article 26 of the Sixth Directive, Madgett and Baldwin , cited above, paragraph 34). Moreover, it is settled case-law that any exception to a general rule is to be interpreted strictly (Case C-83/99 Commission v Spain [2001] ECR I-445, paragraph 19).
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16 It follows that the existence of sufficient evidence of dumping and the injury resulting therefrom is always a prerequisite for the opening of an investigation, whether at the initiation of an anti-dumping proceeding or in the course of a review of a regulation imposing anti-dumping duties.
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109. Finally, as regards the negotiations on pay which the trade unions seek to impose, by way of collective action such as that at issue in the main proceedings, on undertakings, established in another Member State which post workers temporarily to their territory, it must be emphasised that Community law certainly does not prohibit Member States from requiring such undertakings to comply with their rules on minimum pay by appropriate means (see Seco and Desquenne & Giral , paragraph 14; Rush Portuguesa , paragraph 18, and Arblade and Others , paragraph 41).
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18 Finally, it should be stated, in response to the concern expressed in this connection by the French Government, that Community law does not preclude Member States from extending their legislation, or collective labour agreements entered into by both sides of industry, to any person who is employed, even temporarily, within their territory, no matter in which country the employer is established; nor does Community law prohibit Member States from enforcing those rules by appropriate means ( judgment of 3 February 1982 in Joined Cases 62 and 63/81 Seco SA and Another v EVI (( 1982 )) ECR 223 ).
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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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50. In that regard, it must, first, be recalled that, in paragraphs 75 to 84 of Abatay and Others , the Court held that Article 13 of Decision No 1/80 is not subject to the condition that the Turkish national concerned satisfy the requirements of Article 6(1) of that decision and that the scope of that Article 13 is not restricted to Turkish migrants who are in paid employment.
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83. In the light of all the foregoing observations it cannot be maintained that Article 13 of Decision No 1/80 is only applicable to Turkish nationals already integrated into the employment market of a Member State.
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28 Indeed, it is clear from the consistent case-law of the Court of Justice that, where the Court decides that there is no need to give judgment in an action which has ceased to have any purpose, it is not necessary for it to examine the admissibility of that action (see, in particular, the judgment in Joined Cases C-15/91 and C-108/91 Buckl and Others v Commission [1992] ECR I-6061, paragraphs 14 to 17, and the order of 10 June 1993 in Case C-41/92 Liberal Democrats v Parliament [1993] ECR I-3153, paragraph 4).
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47
In the second place, Article 5(1) of Directive 2001/23 requires the bankruptcy proceedings or any analogous insolvency proceedings to be instituted with a view to liquidation of the assets of the transferor. In that regard it is clear, as follows from the case-law of the Court, that a procedure aimed at ensuring the continuation of the undertaking in question does not satisfy that requirement (see, to that effect, judgments of 25 July 1991, d’Urso and Others, C‑362/89, EU:C:1991:326, paragraphs 31 and 32, and of 7 December 1995, Spano and Others, C‑472/93, EU:C:1995:421, paragraph 25).
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25 As the Commission and the plaintiffs in the main proceedings maintain, it is clear from the case-law of the Court that the directive does not apply to transfers taking place in proceedings for the liquidation of the transferor' s assets, such as insolvency proceedings (see the judgment in Abels, cited above) or compulsory administrative liquidation under Italian Law (see the judgment in D' Urso), but it does apply to the transfer of an undertaking subject to a procedure aimed at ensuring the continuation of its business, such as the "surséance van betaling" procedure under Netherlands Law (judgment in Abels) or the special administration procedure under Italian Law in respect of large undertakings in critical difficulties, where it has been decided that the undertaking is to continue trading for so long as that decision remains in effect (see the judgment in D' Urso).
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100 That approach is borne out by Article 130r(1) of the EC Treaty, according to which Community policy on the environment is to pursue the objective inter alia of protecting human health. Article 130r(2) provides that that policy is to aim at a high level of protection and is to be based in particular on the principles that preventive action should be taken and that environmental protection requirements must be integrated into the definition and implementation of other Community policies.
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62. The Court has, it is true, acknowledged that, in order to maintain the link between the deductibility of premiums and the taxation of sums due from insurers in the implementation of insurance contracts, tax deductibility of the premiums is subject to the condition that they be paid in that State ( Bachmann , cited above, paragraphs 21 to 23; Case C-300/90 Commission v Belgium [1992] ECR I-305, paragraphs 14 to 20).
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19 It is true that bilateral conventions exist between certain Member States, allowing the deduction for tax purposes of contributions paid in a contracting State other than that in which the advantage is granted, and recognizing the power of a single State to tax sums payable by insurers under the contracts concluded with them. However, such a solution is possible only by means of such conventions or by the adoption by the Council of the necessary coordination or harmonization measures.
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33. El Corte Inglés submits that, according to the case-law of the Court of Justice, the degree of similarity between the signs at issue that is required for the application of Article 8(1)(b) and Article 8(5) respectively of Regulation No 207/2009 is different. In its view, it is apparent from the case-law of the Court of Justice, and in particular from paragraphs 72 to 78 of the judgment in Intra-Presse v OHIM (C‑581/13 P and C‑582/13 P, EU:C:2014:2387), that, contrary to Article 8(1)(b) of Regulation No 207/2009, Article 8(5) of that regulation requires only a low degree of similarity between the signs at issue. It maintains that, consequently, since, in the present case, the General Court acknowledged that there was a conceptual similarity, albeit low in degree, between those signs, that Court erred in not examining whether, on account of the presence of other relevant factors, such as the renown or reputation of the earlier marks, that low degree of conceptual similarity was not, nevertheless, sufficient for the relevant public to establish a link between those signs.
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38. In that regard, it should be noted that, in so far as it follows from paragraph 36 of the present judgment that an agreement such as Addendum No 83 does not come within the scope of Article 101(1) TFEU, the public authorities are free to make it compulsory for persons who are not formally bound by it (see, by way of analogy, Albany , paragraph 66; Brentjens’ , paragraph 66; and Drijvende Bokken , paragraph 56).
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66 In that connection, the request made to the public authorities by the organisations representing employers and workers to make affiliation to the sectoral pension fund set up by them compulsory is part of a regime established under a number of national laws, designed to exercise regulatory authority in the social sphere. Since the agreement at issue in the main proceedings does not fall within the scope of Article 85(1) of the Treaty, as is clear from paragraphs 52 to 64 of this judgment, the Member States are free to make it compulsory for persons who are not bound as parties to the agreement.
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32. Conformément à une jurisprudence constante, l’interprétation que la Cour donne d’une règle du droit de l’Union, dans l’exercice de la compétence que lui confère l’article 267 TFUE, éclaire et précise la signification et la portée de cette règle, telle qu’elle doit ou aurait dû être comprise et appliquée depuis le moment de sa mise en vigueur. Il s’ensuit que la règle ainsi interprétée peut et doit être appliquée à des rapports juridiques nés et constitués avant l’arrêt statuant sur la demande d’interprétation, si par ailleurs les conditions permettant de porter devant les juridictions compétentes un litige relatif à l’application de ladite règle se trouvent réunies (voir, notamment, arrêts du 2 février 1988, Blaizot e.a., 24/86, Rec. p. 379, point 27; du 10 janvier 2006, Skov et Bilka, C-402/03, Rec. p. I-199, point 50, et du 18 janvier 2007, Brzeziński, C‑313/05, Rec. p. I-513, point 55).
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26 As the Court has already pointed out, the task of a selection board involves as a rule at least two separate stages, the first being an examination of the applications in order to select the candidates admitted to the competition and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a list of suitable candidates (see, in particular, Case 44/71 Marcato v Commission [1972] ECR 427, paragraph 19; Case 37/72 Marcato v Commission [1973] ECR 361, paragraph 18, and Case 31/75 Costacurta v Commission [1975] ECR 1563, paragraph 10).
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10 THE TASK OF THE SELECTION BOARD CONSISTS OF AT LEAST TWO SEPARATE STAGES, THE FIRST BEING AN EXAMINATION OF THE APPLICATIONS IN ORDER TO SELECT THE CANDIDATES ADMITTED TO THE COMPETITION AND THE SECOND BEING AN EXAMINATION OF THE ABILITIES OF THE CANDIDATES FOR THE POSTS TO BE FILLED IN ORDER TO DRAW UP A LIST OF SUITABLE CANDIDATES .
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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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51. Admittedly, as is clear from settled case-law, the powers of the Community must be exercised in observance of international law, including provisions of international agreements in so far as they codify customary rules of general international law (see, to this effect, Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, paragraphs 9 and 10; Case C-405/92 Mondiet [1993] ECR I‑6133, paragraphs 13 to 15; and Case C-162/96 Racke [1998] ECR I‑3655, paragraph 45). None the less, it does not appear that Regulations 9 and 11(b) of Annex I to Marpol 73/78 and Regulations 5 and 6(b) of Annex II to that Convention are the expression of customary rules of general international law.
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9 As a preliminary point, it must be observed, first, that the European Community must respect international law in the exercise of its powers and that, consequently, Article 6 abovementioned must be interpreted, and its scope limited, in the light of the relevant rules of the international law of the sea.
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23 It has consistently been held (see, for example, Case C-168/95 Arcaro [1996] ECR I-0000, paragraph 36) that a directive may not of itself create obligations for an individual and that a provision of a directive may not therefore, as such, be relied upon against such a person.
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36. It must be borne in mind that the Court has already held in this regard that it follows from the wording of the first subparagraph of Article 5(1) of the Access Directive that the NRAs are responsible for ensuring adequate access and interconnection and also interoperability of services by means which are not exhaustively listed there (see, to that effect, judgment in TeliaSonera Finland , C‑192/08, EU:C:2009:696, paragraph 58).
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58. It must be observed, first, that it follows from the wording of the first subparagraph of Article 5(1) of the Access Directive that the national regulatory authorities are responsible for ensuring adequate access and interconnection and also interoperability of services by means which are not exhaustively listed there.
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51. However, the fact remains that the Member States must exercise their powers in this area in a manner which respects the basic freedoms guaranteed by the FEU Treaty (see judgments in Commission v France , C‑496/01, EU:C:2004:137, paragraph 55; Colegio de Ingenieros de Caminos, Canales y Puertos , C‑330/03, EU:C:2006:45, paragraph 29; and Nasiopoulos , C‑575/11, EU:C:2013:430, paragraph 20).
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29. First, the Court notes that the manner in which images are transmitted is not a determining factor in that assessment, as evidenced by the use in Article 1(a) of Directive 89/552 of the terms ‘by wire or over the air, including that by satellite, in unencoded or encoded form’. The Court has thus held that transmission by cable comes within the scope of that directive, even though cable distribution was not very widespread at the time when Directive 89/552 was adopted (see Case C‑11/95 Commission v Belgium [1996] ECR I-4115, paragraphs 15 to 25).
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21 As regards the concept of "television broadcasting", the definition given in Article 1(a) of Directive 89/552 cannot be interpreted as a restriction of its scope. Article 2(2), which forms part of Chapter II of Directive 89/552, entitled "General provisions", provides that Member States are to ensure freedom of reception and are not to restrict retransmission on their territory of television broadcasts from other Member States; cable retransmission is not excluded.
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30
It follows from settled case-law that that principle precludes similar goods or services which are in competition with each other being treated differently for VAT purposes (judgment of 11 September 2014, K, C‑219/13, EU:C:2014:2207, paragraph 24 and the case-law cited).
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37 It is clear, however, from the judgments in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, Case C-128/93 Fisscher [1994] ECR I-4583, paragraphs 17 to 24, and Case C-246/96 Magorrian and Cunningham v EHSSB and DHSS [1997] ECR I-7153, paragraphs 27 to 35, that the limitation in time of the effects of Article 119 resulting from both the Barber judgment and the Protocol concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions (see Case C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223, paragraph 19).
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18 According to its established case-law, the Court may exceptionally, having regard to the general principle of legal certainty inherent in the Community legal order and the serious difficulties which its judgment may create as regards the past for legal relations established in good faith, find it necessary to limit the possibility for interested parties, relying on the Court' s interpretation of a provision, to call in question those legal relations (see the Defrenne judgment, cited above). The Court was therefore concerned to establish that the two essential criteria were fulfilled for deciding to impose such a limitation, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties.
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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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14 As regards the originating application, it should be pointed out that Article 19 of the Protocol on the EC Statute of the Court of Justice and Article 38(1)(c) and (d) of the Rules of Procedure provide that the application in a case brought before the Court must contain, among other things, the subject-matter of the dispute, the form of order sought and a brief statement of the grounds on which the application is based (Case C-43/90 Commission v Germany [1992] ECR I-1909, paragraph 7).
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7 Article 19 of the Protocol on the Statute of the Court of Justice of the EEC and Article 38(1)(c) and (d) of the Rules of Procedure provide that the application in a case brought before the Court must contain, among other things, the subject-matter of the dispute, the submissions and a brief statement of the grounds on which the application is based.
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58. In those circumstances, the conditions laid down by the national legislation at issue in the main proceedings do not, contrary to the principles referred to at paragraph 33 above, enable the taxable person, in appropriate circumstances, to recover the entirety of the credit arising from the excess VAT without being exposed to any financial risk.
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20. It is important to note at the outset that Article 56 TFEU precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State (see, inter alia, Joined Cases C-155/08 and C-157/08 X and Passenheim-van Schoot [2009] ECR I-5093, paragraph 32 and the case-law cited).
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32. It should be recalled in this regard that Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State (see, in particular, Case C‑118/96 Safir [1998] ECR I‑1897, paragraph 23; Case C‑334/02 Commission v France [2004] ECR I‑2229, paragraph 23; and Case C‑318/05 Commission v Germany [2007] ECR I‑6957, paragraph 81).
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12 IT MUST BE ACKNOWLEDGED , HOWEVER , THAT , AS THE EMPLOYMENT APPEAL TRIBUNAL PROPERLY RECOGNIZED , IT CANNOT BE RULED OUT THAT A DIFFERENCE IN PAY BETWEEN TWO WORKERS OCCUPYING THE SAME POST BUT AT DIFFERENT PERIODS IN TIME MAY BE EXPLAINED BY THE OPERATION OF FACTORS WHICH ARE UNCONNECTED WITH ANY DISCRIMINATION ON GROUNDS OF SEX . THAT IS A QUESTION OF FACT WHICH IT IS FOR THE COURT OR TRIBUNAL TO DECIDE .
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51. In that connection, according to settled case-law, the improvement of road safety is an objective of general interest of the European Union (see, to that effect, inter alia, Case C‑55/93 van Schaik EU:C:1994:363, paragraph 19; Case C‑451/99 Cura Anlagen EU:C:2002:195, paragraph 59; Case 54/05 Commission v Finland EU:C:2007:168, paragraph 40; Case C‑110/95 Commission v Italy EU:C:2009:66, paragraph 60; Case C‑384/08 Attanasio Group EU:C:2010:133, paragraph 50; Case C‑438/08 Commission v Portugal EU:C:2009:651, paragraph 48; Case C‑184/10 Grasser EU:C:2011:324, paragraph 26; and Case C‑224/10 Apelt EU:C:2011:655, paragraph 47). By laying down, in Annex III thereto, a minimum threshold of visual acuity for the worse eye for drivers in group 2, for the purposes of that annex, Directive 2006/126 aims to improve road safety and thus to attain an objective of general interest.
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59 It should also be remembered that, although road safety constitutes an overriding reason in the public interest capable of justifying the hindrance in question (Case C-55/93 Van Schaik [1994] ECR I-4837, paragraph 19), Member States must, when examining the roadworthiness and safety of vehicles and their environmentally-friendly quality, comply with the relevant Community provisions.
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24 National legislation such as Article 53a(2) of the GewO, which provides that bakers, butchers and grocers may not make sales on rounds in a given administrative district, such as an Austrian Verwaltungsbezirk, unless they also carry on their trade at a permanent establishment situated in that administrative district or in an adjacent municipality, where they also offer for sale the same goods as they do on their rounds, relates to the selling arrangements for certain goods in that it lays down the geographical areas in which each of the operators concerned may sell his goods by that method.
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37. Il en découle que, aux fins de l’interprétation de la directive 2003/4, il y a lieu de tenir compte du texte et de l’objet de la convention d’Aarhus que cette directive vise à mettre en œuvre dans le droit de l’Union (voir, en ce sens, arrêt Flachglas Torgau, précité, point 40).
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40. It is apparent from both the Aarhus Convention itself and Directive 2003/4, the purpose of which is to implement the Convention in European Union law, that in referring to ‘public authorities’ the authors intended to refer to administrative authorities, since within States it is those authorities which are usually required to hold environmental information in the exercise of their functions.
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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22 Concerning the Belgian Government's letter of 23 August 1999, it should be recalled that, under consistent case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-316/96 Commission v Italy [1997] ECR I-7231, paragraph 14).
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14 As regards Directive 93/53, it should be pointed out that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see Case C-60/96 Commission v France [1997] ECR I-0000, paragraph 15).
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133 Secondly, whilst national teams must be made up of players having the nationality of the relevant country, those players need not necessarily be registered to play for clubs in that country. Indeed, under the rules of the sporting associations, foreign players must be allowed by their clubs to play for their country's national team in certain matches.
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51. In that regard, it should be noted, first of all, that different rules apply for the determination of normal value and export price and therefore the sales, general and administrative expenses need not necessarily be treated in the same way in both cases. However, any differences between the two values may be taken into account under the adjustments provided for in Article 2(10) of the basic regulation (see, to that effect, Case C‑69/89 Nakajima v Council [1991] ECR I‑2069, paragraphs 63, 70 and 73, and Case C‑178/87 Minolta Camera v Council [1992] ECR I‑1577, paragraph 12).
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12 It should next be observed that, according to the Court' s case-law (see inter alia the judgments in Case 240/84 Toyo v Council [1987] ECR 1809, at paragraph 13, Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, at paragraph 14, Case 258/84 Nippon Seiko v Council [1987] ECR 1923, at paragraph 14, and Case 260/84 Minebea v Council [1987] ECR 1975, at paragraph 8), determination of the normal value and determination of the export price are governed by separate rules and therefore selling, general and administrative expenses need not necessarily be treated in the same way in both cases.
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74. In that regard, while budgetary considerations can underpin the chosen social policy of a Member State and influence the nature or extent of the measures that the Member State wishes to adopt, such considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6(1) of Directive 2000/78.
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21. Thus, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its subject-matter, 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‑618/10 Banco Español de Crédito [2012] ECR I‑0000, paragraph 77, and Rintisch , paragraph 16).
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77. Thus, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I-11421, paragraph 25, and Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez [2010] ECR I-4629, paragraph 36).
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22 However, where the vessel constitutes an instrument for pursuing an economic activity which involves a fixed establishment in the Member State concerned, the registration of that vessel cannot be dissociated from the exercise of the freedom of establishment.
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36. Alors qu’il est de jurisprudence constante qu’une entrave à la libre circulation des marchandises peut être justifiée par des exigences impératives tendant à l’amélioration de la sécurité routière ou à la protection de l’environnement (voir à cet égard, notamment, arrêt Snellers, C‑314/98, EU:C:2000:557, point 55), force est de constater, en premier lieu, que le Royaume d’Espagne ne démontre pas concrètement que la condition fixée à la disposition litigieuse relative à l’âge maximal du premier véhicule de la flotte serait propre à garantir la réalisation de ces objectifs.
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55 In that regard, it should be pointed out that it follows from settled case-law that restrictions on the free movement of goods within the meaning of Article 30 of the Treaty may be justified by imperative requirements such as road safety (see Case C-55/93 Van Schaik [1994] ECR I-4837) and protection of the environment (see Case C-341/95 Bettati [1998] ECR I-4355, paragraph 62), and that it cannot be precluded that national rules which define criteria for the determination of the date on which a vehicle was first authorised for use on the public highway, such as the regulation, may be justified. It is for the national court to ascertain whether that is actually so in the case before it.
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54. The first condition requires the treatment in question to be among the benefits provided for by the legislation of the Member State on whose territory the insured person resides, whereas the second condition requires that the treatment which the latter plans to undergo in a Member State other than that on the territory of which he resides cannot be given within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of his disease ( Inizan , paragraphs 42 and 44, and Watts , paragraphs 56 and 57).
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45 It follows that, as mentioned above, the owner of a trade mark protected by the legislation of a Member State cannot rely on that legislation in order to oppose the importation or marketing of a product which was put on the market in another Member State by him or with his consent (see, in particular, Winthrop, paragraphs 7 to 11; HAG II, paragraph 12; and IHT Internationale Heiztechnik, paragraphs 33 and 34).
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8 IN RELATION TO TRADE MARKS, THE SPECIFIC SUBJECT-MATTER OF THE INDUSTRIAL PROPERTY IS THE GUARANTEE THAT THE OWNER OF THE TRADE MARK HAS THE EXCLUSIVE RIGHT TO USE THAT TRADE MARK, FOR THE PURPOSE OF PUTTING PRODUCTS PROTECTED BY THE TRADE MARK INTO CIRCULATION FOR THE FIRST TIME, AND IS THEREFORE INTENDED TO PROTECT HIM AGAINST COMPETITORS WISHING TO TAKE ADVANTAGE OF THE STATUS AND REPUTATION OF THE TRADE MARK BY SELLING PRODUCTS ILLEGALLY BEARING THAT TRADE MARK .
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32. La Cour a notamment souligné que le risque de confusion est d’autant plus élevé que le caractère distinctif de la marque antérieure s’avère important [voir, à propos de la première directive 89/104/CEE du Conseil, du 21 décembre 1988, rapprochant les législations des États membres sur les marques (JO 1989, L 40, p. 1), arrêts du 11 novembre 1997, SABEL, C‑251/95, Rec. p. I‑6191, point 24, et du 22 juin 2000, Marca Mode, C‑425/98, Rec. p. I‑4861, point 38]. Ainsi, les marques qui ont un caractère distinctif élevé, soit intrinsèquement, soit en raison de la connaissance de celles-ci sur le marché, jouissent d’une protection plus étendue que celles dont le caractère distinctif est moindre (voir, à propos de la directive 89/104, arrêts du 22 juin 1999, Lloyd Schuhfabrik Meyer, C‑342/97, Rec. p. I‑3819, point 20, et Marca Mode, précité, point 41).
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26. In order to be treated as a worker, a person must nevertheless pursue an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and accessory (see, in particular, Levin , cited above, paragraph 17, and Meeusen , paragraph 13).
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17 IT SHOULD HOWEVER BE STATED THAT WHILST PART-TIME EMPLOYMENT IS NOT EXCLUDED FROM THE FIELD OF APPLICATION OF THE RULES ON FREEDOM OF MOVEMENT FOR WORKERS , THOSE RULES COVER ONLY THE PURSUIT OF EFFECTIVE AND GENUINE ACTIVITIES , TO THE EXCLUSION OF ACTIVITIES ON SUCH A SMALL SCALE AS TO BE REGARDED AS PURELY MARGINAL AND ANCILLARY . IT FOLLOWS BOTH FROM THE STATEMENT OF THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS AND FROM THE PLACE OCCUPIED BY THE RULES RELATING TO THAT PRINCIPLE IN THE SYSTEM OF THE TREATY AS A WHOLE THAT THOSE RULES GUARANTEE ONLY THE FREE MOVEMENT OF PERSONS WHO PURSUE OR ARE DESIROUS OF PURSUING AN ECONOMIC ACTIVITY .
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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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19. According to settled case-law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 22 and the case‑law cited).
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22. According to settled case-law, 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 Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I-0000, paragraph 25).
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54. Pursuant to Article 60, the Regulation is to take precedence over the 1980 Hague Convention.
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119. Accordingly, in the assessment carried out by the Court, the criteria which must be taken into account in order to ensure that penalty payments have coercive force and that European Union law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State concerned to pay. In applying those criteria, the Court is required to have regard, in particular, to the effects on public and private interests of failure to comply and to the urgency with which the Member State concerned must be induced to fulfil its obligations (see Case C-304/02 Commission v France , paragraph 104; Case C-177/04 Commission v France , paragraph 62; and Commission v Portugal , paragraph 39).
ii) The duration of the infringement
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104. In that light, and as the Commission has suggested in its communication of 28 February 1997, the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Community law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State to pay. In applying those criteria, regard should be had in particular to the effects of failure to comply on private and public interests and to the urgency of getting the Member State concerned to fulfil its obligations (Case C-387/97 Commission v Greece , paragraph 92).
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13 THE ANSWER TO THE FIRST QUESTION SHOULD THEREFORE BE THAT ARTICLE 67 ( 1 ) MUST BE INTERPRETED AS MEANING THAT RESTRICTIONS ON THE EXPORTATION OF BANK NOTES MAY NOT BE REGARDED AS ABOLISHED AS FROM THE EXPIRY OF THE TRANSITIONAL PERIOD , IRRESPECTIVE OF THE PROVISIONS OF ARTICLE 69 .
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53
The same applies in cases in which, although the facts of the main proceedings are outside the direct scope of EU law, the provisions of EU law have been made applicable by national legislation, which, in dealing with situations confined in all respects within a single Member State, follows the same approach as that provided for by EU law (see, to that effect, judgments of 18 October 1990, Dzodzi, C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 36, 37 and 41; of 17 July 1997, Leur-Bloem, C‑28/95, EU:C:1997:369, paragraphs 27 and 32; and of 14 March 2013, Allianz Hungária Biztositó and Others, C‑32/11, EU:C:2013:160, paragraph 20).
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27. Applying that case-law, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning Community provisions in situations where the facts of the cases being considered by the national courts were outside the scope of Community law but where those provisions had been rendered applicable either by domestic law or merely by virtue of terms in a contract (see, as regards the application of Community law by domestic law, Dzodzi and Gmurzynska-Bscher , cited above; Case 166/84 Thomasdünger [1985] ECR 3001; Case C-384/89 Tomatis and Fulchiron [1991] ECR I-127 and, as regards the application of Community law by the effect of contractual provisions, Case C-88/91 Federconsorzi [1992] ECR I-4035 and Case C-73/89 Fournier [1992] ECR I-5621, all those cases being hereinafter referred to as ‘the Dzodzi line of cases’). In those cases, the provisions of domestic law and the relevant contractual terms, which incorporated Community provisions, clearly did not limit application of the latter.
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69. Consequently, a Member State wishing to adopt emergency measures pursuant to Article 34 of Regulation No 1829/2003 must comply, not only with the substantive conditions laid down in that article, but also with the procedural conditions provided for in Article 54 of Regulation No 178/2002.
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25 The Court has consistently held that although it has no jurisdiction under Article 177 of the Treaty to rule on the compatibility of national law with Community law, it does have jurisdiction to provide the national court with the guidance as to the interpretation of Community law necessary to enable it to assess that compatibility for the purpose of deciding the case before it (see, inter alia, Case C-369/89 Piageme [1991] ECR I-2971, paragraph 7).
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7 On the first point it should be noted that the Court has consistently held that, whereas it is not for the Court, in the context of Article 177 of the Treaty, to rule on the compatibility of a national law with Community law, it does have jurisdiction to provide the national court with all the elements of interpretation under Community law to enable it to assess that compatibility for the purpose of deciding the case before it (see for example the judgment in Case C-373/89 Caisse d' assurances sociales pour travailleurs indépendants "Integrity" v Rouvroy [1990] ECR I-4243, paragraph 9).
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14 DURING THE ORAL PROCEDURE THE DEFENDANT ACKNOWLEDGED THAT VARIOUS POSTS CAPABLE OF BEING FILLED BY THE APPLICANT FELL VACANT SHORTLY AFTER THE EXPIRY OF THE LEAVE ON PERSONAL GROUNDS .
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53
In the light of the foregoing, the Court has jurisdiction to interpret Articles 8 and 11 of the TIR Convention, provisions concerning customs on whose scope it has, moreover, previously given a preliminary ruling (see, inter alia, judgments of 23 September 2003, BGL, C‑78/01, EU:C:2003:490, paragraphs 47 and 70; of 5 October 2006, Commission v Germany, C‑105/02, EU:C:2006:637, paragraphs 80 and 82; of 5 October 2006, Commission v Belgium, C‑377/03, EU:C:2006:638, paragraphs 67 to 70, 86 and 88; and of 14 May 2009, Internationaal Verhuis- en Transportbedrijf Jan de Lely, C‑161/08, EU:C:2009:308, paragraphs 34 to 36).
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88. However, under Article 8(3) of the TIR Convention, it is for the Member States to determine the maximum sum per TIR carnet which may be claimed from the guaranteeing association.
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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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19 On that point, it should be observed that, according to settled case-law, it is solely for the national courts before which proceedings are pending, and which must assume responsibility for the judgment to be given, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they submit to the Court (see, inter alia, Case C-264/96 ICI v Colmer (HMIT) [1998] ECR I-4695, paragraph 15, and Joined Cases C-215/96 and C-216/96 Bagnasco and Others [1999] ECR I-135, paragraph 20). Consequently, Darbo's request that the question be reformulated in the terms which it indicates cannot be granted.
Substance
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15 According to established case-law, it is solely for the national courts before which proceedings are pending, and which must assume responsibility for the judgment to be given, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they submit to the Court (see, inter alia, Case C-127/92 Enderby [1993] ECR I-5535, paragraph 10; Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others [1994] ECR I-711, paragraph 17; and Case C-146/93 McLachlan [1994] ECR I-3229, paragraph 20). A request for a preliminary ruling from a national court may be rejected only if it is manifest that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the true facts or the subject-matter of the main proceedings (Case C-62/93 BP Supergas [1995] ECR I-1883, paragraph 10, and Case C-143/94 Furlanis [1995] ECR I-3633, paragraph 12).
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75. Finally, it must be recalled that, as may be seen from recital 2 in the preamble to Directive 2003/86, the directive respects the fundamental rights and observes the principles enshrined in the Charter.
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42 The answer to be given to the third question must therefore be that the concept of general interest to which the Court referred in its judgments in the Reiff and Delta Schiffahrts- und Speditionsgesellschaft cases corresponds to the concept of public interest mentioned in its judgment in Centro Servizi Spediporto.
The fourth and fifth questions
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14 Article 85 of the Treaty is, in itself, concerned solely with the conduct of undertakings and not with measures adopted by Member States by law or regulation. The Court has consistently held, however, that Article 85 of the Treaty, in conjunction with Article 5, requires the Member States not to introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings. Such would be the case, the Court has held, if a Member State were to require or favour the adoption of agreements, decisions or concerted practices contrary to Article 85 or to reinforce their effects, or to deprive its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (see the judgment in Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16, and the judgment in Reiff, paragraph 14).
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19 IT IS NECESSARY TO DETERMINE WHETHER THAT DECISION CLEARLY ALTERED THE APPLICANT ' S LEGAL POSITION OR WHETHER IT WAS MERELY A PREPARATORY STEP AGAINST WHICH , IF IT WAS UNLAWFUL , THE ACTION BROUGHT AGAINST THE DECISION CONCLUDING THE PROCEDURE WOULD PROVIDE SUFFICIENT PROTECTION .
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47. In that regard, it is appropriate to make clear that, when the Community legislature fixes a mandatory time‑limit for lodging an application, the barring of claims which the failure to observe that time‑limit entails is not a penalty, but merely the consequence of failure to fulfil the conditions laid down by the law (see, to that effect, Case 266/84 Denkavit [1986] ECR 149, paragraph 21).
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21 NEXT , IT SHOULD BE NOTED THAT THE BARRING OF CLAIMS ON THE GROUND THAT THE REQUISITE DOCUMENTS HAVE BEEN SUBMITTED OUT OF TIME IS NOT A PENALTY BUT , AS A GENERAL RULE , THE NORMAL CONSEQUENCE OF THE EXPIRY OF ANY PRESCRIBED PERIOD THE OBSERVANCE OF WHICH IS MANDATORY . IT MUST BE BORNE IN MIND THAT IN THE PRESENT CASE ARTICLE 15 PROVIDES THAT DELAYS MAY BE JUSTIFIED BY EXCEPTIONAL CIRCUMSTANCES AMOUNTING TO FORCE MAJEURE .
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13 Paragraph 13 of Regulation No 4055/86 thus renders applicable to the sphere of maritime transport between Member States the totality of the Treaty rules governing the freedom to provide services.
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33. The condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Member State merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real steps to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled those difficulties to be overcome (see, in particular, Joined Cases C‑485/03 to C‑490/03 Commission v Spain [2006] ECR I‑11887, paragraph 74; Commission v France , paragraph 46; and Commission v Italy , paragraph 36).
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74. In that respect, it should however be recalled that the condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Government merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real step to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled those difficulties to be overcome (see, in particular, Commission v Spain , paragraph 47; Commission v Italy , paragraph 18; and Commission v Greece , paragraph 43).
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31. In that connection, it should be noted that, in accordance with the third recital in the preamble to the Montreal Convention, the States Parties to that convention, recognising ‘the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution’, decided to lay down a system of strict liability for air carriers.
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135
It must therefore be held that a notary’s powers in matters relating to the dissolution of a registered partnership, which are based entirely on the wishes of the parties and leave the prerogatives of the courts intact in the absence of agreement between the parties, do not have any connection with the exercise of official authority (see, by analogy, judgment of 10 September 2015, Commission v Latvia, C‑151/14, EU:C:2015:577, paragraphs 68 to 70).
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69. Furthermore, with regard to other divorce cases, it is clear from Article 233 of the Code of Civil Procedure, which forms part of Chapter 29 entitled ‘Aspects concerning the annulment and dissolution of marriage’, that handling such cases falls within the powers of the courts.
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43. Consequently, the answer to the question referred is that Articles 43 EC and 48 EC do not preclude legislation of a Member State which makes it possible for a parent company to form a single tax entity with its resident subsidiary, but which prevents the formation of such a single tax entity with a non-resident subsidiary, in that the profits of that non-resident subsidiary are not subject to the fiscal legislation of that Member State.
Costs
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55. Directive 89/48 seeks to remove obstacles to the pursuit of a profession in a Member State other than that which issued the diploma establishing the professional qualifications concerned. It is clear from the first, third and fifth recitals in the preamble to that directive that a certificate attesting professional qualifications cannot be treated in the same way as a ‘diploma’ for the purposes of that directive unless those qualifications were acquired, wholly or in part, under the education system of the Member State which issued the certificate in question. The Court has also stated that a diploma facilitates the taking-up or pursuit of a profession in so far as it proves the possession of an additional qualification (see, to that effect, Case C-19/92 Kraus [1993] ECR I-1663, paragraphs 18 to 23, and Case C-285/01 Burbaud [2003] ECR I-8219, paragraphs 47 to 53).
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20 In some cases possession of a postgraduate academic title obtained in another State may even be a prerequisite for access to certain professions, where those professions require specific knowledge such as that evidenced by the diploma in question. That may be so in the case of a postgraduate diploma in law required, for example, for access to an academic career in the fields of international or comparative law.
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56
However, if the contracting authority decides to make use of such a possibility, it must ensure that the rules it adopts are related and proportionate to the subject matter and objectives of that contract.
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13 In order to determine whether a referring body is a court or tribunal within the meaning of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case C-54/96 Dorsch Consult [1997] ECR I-4961, paragraph 23, and the case-law cited therein, and in Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 33).
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23 In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, the judgments in Case 61/65 Vaassen (neé Göbbels) [1966] ECR 261; Case 14/86 Pretore di Salò v Persons unkown [1987] ECR 2545, paragraph 7; Case 109/88 Danfoss [1989] ECR 3199, paragraphs 7 and 8; Case C-393/92 Almelo and Others [1994] ECR I-1477; and Case C-111/94 Job Centre [1995] ECR I-3361, paragraph 9).
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33. Il y a lieu de relever qu’il ressort du libellé de l’article 7, paragraphe 1, du règlement n° 207/2009 qu’il suffit que l’un des motifs absolus de refus énumérés à cette disposition s’applique pour que le signe en cause ne puisse être enregistré comme marque communautaire (voir, en ce sens, arrêt DKV/OHMI, C‑104/00 P, EU:C:2002:506, point 29).
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83. It must be observed that the obligation to state the reasons on which a judgment is based arises under Article 36 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 81 of the Rules of Procedure of the General Court. It has consistently been held that the statement of the reasons on which a judgment of the General Court is based must clearly and unequivocally disclose that court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (Case C-280/08 P Deutsche Telekom v Commission [2010] ECR I-9555, paragraphs 135 and 136).
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135. As regards, in the third place, the grounds of the judgment under appeal, it must be observed that the obligation to state the reasons on which a judgment is based arises under Article 36 of the Statute of the Court of Justice, which applies to the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 81 of the Rules of Procedure of the General Court (see judgment of 4 October 2007 in Case C‑311/05 P Naipes Heraclio Fournier v OHIM , paragraph 51 and the case-law cited).
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120. Il convient de rappeler que les lignes directrices de 1998, qui, en tant que mesures d’ordre interne adoptées par l’administration, ne sauraient être qualifiées de règles de droit, énoncent toutefois une règle de conduite indicative de la pratique à suivre dont cette dernière ne peut s’écarter, dans un cas particulier, sans donner des raisons qui soient compatibles avec le principe d’égalité de traitement (voir, s’agissant des lignes directrices pour le calcul du montant des amendes en matière d’ententes, arrêt du 28 juin 2005, Dansk Rørindustri e.a./Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P à C‑208/02 P et C‑213/02 P, Rec. p. I‑5425, point 209). De telles règles peuvent déployer, sous certaines conditions et en fonction de leur contenu, des effets juridiques (voir arrêt Dansk Rørindustri e.a./Commission, précité, point 211).
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23 First, the decisive criterion for establishing whether there is a transfer for the purposes of the directive is whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (judgment in Spijkers, cited above, paragraphs 11 and 12).
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12 CONSEQUENTLY , A TRANSFER OF AN UNDERTAKING , BUSINESS OR PART OF A BUSINESS DOES NOT OCCUR MERELY BECAUSE ITS ASSETS ARE DISPOSED OF . INSTEAD IT IS NECESSARY TO CONSIDER , IN A CASE SUCH AS THE PRESENT , WHETHER THE BUSINESS WAS DISPOSED OF AS A GOING CONCERN , AS WOULD BE INDICATED , INTER ALIA , BY THE FACT THAT ITS OPERATION WAS ACTUALLY CONTINUED OR RESUMED BY THE NEW EMPLOYER , WITH THE SAME OR SIMILAR ACTIVITIES .
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12THE FIRST PART OF THE QUESTION RAISED BY THE COUR DE CASSATION SEEKS TO DISCOVER WHETHER THE PRINCIPLE OF EQUAL PAY LAID DOWN BY ARTICLE 119 MAY BE INTERPRETED AS REQUIRING GENERAL EQUALITY OF WORKING CONDITIONS FOR MEN AND WOMEN , SO THAT THE INSERTION INTO THE CONTRACT OF EMPLOYMENT OF AN AIR HOSTESS OF A CLAUSE BRINGING THE CONTRACT TO AN END WHEN SHE REACHES THE AGE OF 40 YEARS , IT BEING ESTABLISHED THAT NO SUCH LIMIT IS ATTACHED TO THE CONTRACT OF MALE CABIN ATTENDANTS WHO CARRY OUT THE SAME WORK , CONSTITUTES DISCRIMINATION PROHIBITED BY THE SAID PROVISION .
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48. It is true that the Court has also held that, where the European Union intends to implement a particular obligation assumed in the context of the agreements concluded in the context of the World Trade Organization (‘the WTO agreements’) or where the EU act at issue refers explicitly to specific provisions of those agreements, the Court should review the legality of the act at issue and the acts adopted for its implementation in the light of the rules of those agreements (see judgments in Fediol v Commission , EU:C:1989:254, paragraphs 19 to 23; Nakajima v Council , EU:C:1991:186, paragraphs 29 to 32; Germany v Council , C‑280/93, EU:C:1994:367, paragraph 111, and Italy v Council , C‑352/96, EU:C:1998:531, paragraph 19)
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20 It is also appropriate to note that the Court did indeed hold in the abovementioned judgments of 12 December 1972 International Fruit Company, 24 October 1973 Schlueter and 16 March 1983 SPI and SAMI, that a particular feature of GATT is the broad flexibility of its provisions, especially those concerning deviations from general rules, measures which may be taken in cases of exceptional difficulty, and the settling of differences between the contracting parties . That view does not, however, prevent the Court from interpreting and applying the rules of GATT with reference to a given case, in order to establish whether certain specific commercial practices should be considered incompatible with those rules . The GATT provisions have an independent meaning which, for the purposes of their application in specific cases, is to be determined by way of interpretation .
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38 According to Article 22(1) of that Understanding, compensation is a temporary measure available in the event that the recommendations and rulings of the dispute settlement body provided for in Article 2(1) of that Understanding are not implemented within a reasonable period of time, and Article 22(1) shows a preference for full implementation of a recommendation to bring a measure into conformity with the WTO agreements in question.
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53 It is settled case-law that medical activities fall within the scope of Article 60 of the Treaty, there being no need to distinguish in that regard between care provided in a hospital environment and care provided outside such an environment (see Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16; Society for the Protection of Unborn Children Ireland, paragraph 18, concerning advertising for clinics involved in the deliberate termination of pregnancies; and Kohll, paragraphs 29 and 51).
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29 The dispute before the national court concerns treatment provided by an orthodontist established in another Member State, outside any hospital infrastructure. That service, provided for remuneration, must be regarded as a service within the meaning of Article 60 of the Treaty, which expressly refers to activities of the professions.
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31
Therefore, a general presumption of fraud and abuse cannot justify either a fiscal measure which compromises the objectives of a directive, or a fiscal measure which prejudices the enjoyment of a fundamental freedom guaranteed by the treaties (judgments of 26 September 2000, Commission v Belgium, C‑478/98, EU:C:2000:497, paragraph 45 and the case-law cited, and of 5 July 2012, SIAT, C‑318/10, EU:C:2012:415, paragraph 38).
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46 In that regard, it should be recalled that the Community institutions have a wide discretionary power in regard to the common agricultural policy which reflects the responsibilities which the Treaty imposes on them (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, paragraph 31). Thus, by virtue of the enabling provision contained in Article 39(2) of Regulation No 822/87, the Commission has a wide discretion when, in pursuit of the objective of improving conditions in the wine market, it sets the quantities for distillation.
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31 In pursuing the objectives of the common agricultural policy set out in Article 39 of the Treaty, the Community institutions must secure the permanent harmonization made necessary by any conflicts between those aims taken individually and, where necessary, allow any one of them temporary priority in order to satisfy the demands of the economic factors or conditions in view of which their decisions are made (see, for example, the judgment in Case 5/73 Balkan-Import-Export v Hauptzollamt Berlin-Packhof [1973] ECR 1091, paragraph 24). That harmonization must preclude the isolation of any one of those objectives in such a way as to render impossible the realization of other objectives (see, in particular, the judgment in Joined Cases 197 to 200, 243, 245 and 247/80 Ludwigshafener Walzmuehle v Council and Commission [1981] ECR 3211, paragraph 41).
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53. With regard to the social objective, it should be pointed out that the promotion of higher education is an objective in the public interest, acknowledged at the level of the European Union, as stated inter alia by the Austrian and Luxembourg Governments.
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105. À cet égard, il importe de rappeler qu’une telle dénaturation doit apparaître de façon manifeste des pièces du dossier, sans qu’il soit nécessaire de procéder à une nouvelle appréciation des faits et des preuves (arrêts du 22 décembre 2008, British Aggregates/Commission, C‑487/06 P, Rec. p. I‑10515, point 98, et du 10 février 2011, Activision Blizzard Germany/Commission, C‑260/09 P, non encore publié au Recueil, point 53 ainsi que jurisprudence citée).
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98. It should, moreover, be pointed out that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, General Motors v Commission , paragraph 54, and Evonik Degussa v Commission and Council , paragraph 74).
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15 An analysis of the first subparagraph of Article 4(5 ) in the light of the scheme of the directive shows that it is the way in which the activities are carried out that determines the scope of the treatment of public bodies as non-taxable persons . In so far as that provision makes such treatment of bodies governed by public law conditional upon their acting "as public authorities", it excludes therefrom activities engaged in by them not as bodies governed by public law but as persons subject to private law . Consequently, the only criterion making it possible to distinguish with certainty between those two categories of activity is the legal regime applicable under national law .
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31. That global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services concerned. Accordingly, a low degree of similarity between the goods or services covered may be offset by a high degree of similarity between the marks, and vice versa. The interdependence of those factors is expressly referred to in the 7th recital of Regulation No 40/94, according to which the concept of similarity is to be interpreted in relation to the likelihood of confusion, the assessment of which depends, in particular, on the recognition of the trade mark on the market and the degree of similarity between the mark and the sign and between the goods or services designated (see, by way of analogy, Canon , paragraph 17, and Lloyd Schuhfabrik Meyer , paragraph 19).
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19 That global assessment implies some interdependence between the relevant factors, and in particular a similarity between the trade marks and between the goods or services covered. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa. The interdependence of these factors is expressly mentioned in the tenth recital in the preamble to the Directive, which states that it is indispensable to give an interpretation of the concept of similarity in relation to the likelihood of confusion, the appreciation of which depends, in particular, on the recognition of the trade mark on the market and the degree of similarity between the mark and the sign and between the goods or services identified (see Canon, paragraph 17).
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49 It follows that the decision authorises only exemptions which are necessary, proportionate and precisely determined.
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110. It does not therefore appear that such a transitional period, in appearance justified by considerations of legal certainty (see, by analogy, Case C‑347/06 ASM Brescia [2008] ECR I‑5641, paragraphs 68 to 71), is likely to affect the consistency of the measure prohibiting the offer of gambling on the internet and its suitability for achieving the objectives which it pursues (see, by analogy, in relation to a temporary exception from a prohibition on the operation of pharmacies by non‑pharmacists, Joined Cases C-171/07 and C-172/07 Apothekerkammer des Saarlandes and Others [2009] ECR I-4171, paragraphs 45 to 50).
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70. It must, from that point of view, be noted that the concession in question in the main proceedings was granted in 1984, at a time when the Court had not yet held that it followed from primary Community law that contracts with a cross-order interest might be subject to duties of transparency in the situations referred to in paragraphs 59 and 60 of the present judgment.
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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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44 It should be noted in this regard that the aim of Directive 77/187 is to ensure continuity of employment relationships within an economic entity, irrespective of any change of ownership. The decisive test for establishing the existence of a transfer within the meaning of Directive 77/187 is whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (Case 24/85 Spijkers v Benedik [1986] ECR 1119, paragraph 11, and, most recently, Allen and Others, paragraph 23).
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12 CONSEQUENTLY , A TRANSFER OF AN UNDERTAKING , BUSINESS OR PART OF A BUSINESS DOES NOT OCCUR MERELY BECAUSE ITS ASSETS ARE DISPOSED OF . INSTEAD IT IS NECESSARY TO CONSIDER , IN A CASE SUCH AS THE PRESENT , WHETHER THE BUSINESS WAS DISPOSED OF AS A GOING CONCERN , AS WOULD BE INDICATED , INTER ALIA , BY THE FACT THAT ITS OPERATION WAS ACTUALLY CONTINUED OR RESUMED BY THE NEW EMPLOYER , WITH THE SAME OR SIMILAR ACTIVITIES .
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27 Therefore, expulsion for life automatically follows a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of public policy.
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26. According to the general rules, the heading which provides the most specific description is to be preferred to headings providing a more general description ( Possehl Erzkontor , paragraph 21). In this respect, note 2 to Chapter 82 of the CN provides that parts of base metal of the articles of that chapter are to be classified with the articles of which they are parts, except parts separately specified as such.
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21. According to the general rules, the heading which provides the most specific description is to be preferred to headings providing a more general description. In this case, subheading 2519 90 10 provides, as regards the objective characteristics and properties of fused magnesia, and in particular on account of the fact that this subheading refers expressly to ‘magnesium oxide’, a more specific description than subheading 2519 90 90.
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34 Furthermore, traders may not be prevented from applying to the courts having jurisdiction, in accordance with the appropriate procedures of national law, and subject to the conditions laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, for reparation of loss caused by the levying of charges not due, irrespective of whether those charges have been passed on.
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23. The Court has also held that legislation which requires for the marketing of certain goods prior inclusion of those goods on an ‘authorised list’ makes the marketing of those goods more difficult and more expensive, and consequently hinders trade between the Member States (see, to that effect, inter alia, Case C-24/00 Commission v France [2004] ECR I-1277, paragraph 23).
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23. It is not disputed that the French legislation is a measure having equivalent effect to quantitative restrictions within the meaning of Article 30 of the Treaty. That legislation, which requires for the marketing of foodstuffs fortified with vitamins and minerals prior inclusion of those nutrients on an " authorised list" , makes the marketing of such foodstuffs more difficult and more expensive, and consequently hinders trade between the Member States.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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24. It should also be recalled that it is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, in particular, Case C‑396/02 DFDS [2004] ECR I‑8439, paragraph 27; Case C‑495/03 Intermodal Transports [2005] ECR I‑8151, paragraph 47; and Case C‑183/06 RUMA [2007] ECR I‑1559, paragraph 27).
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27. It is appropriate to recall at the outset that, according to the Court’s settled case‑law, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters (see, for example, Case C-276/00 Turbon International [2002] ECR I-1389, paragraph 21, and Joined Cases C-260/00 to C-263/00 Lohmann and Medi Bayreuth [2002] ECR I‑10045, paragraph 30).
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31 Accordingly, the answer to the third question must be that Directive 76/207 is to be interpreted as not applying to a social security scheme, such as supplementary allowance or income support, simply because the conditions of entitlement for receipt of the benefits may be such as to affect the ability of a single parent to take up access to vocational training or part-time employment.
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51 The Court of Justice has already held that the principle of non-discrimination does not preclude a Community regulation which introduced a system of guarantee thresholds for the entire Community involving a reduction in the production aid of the relevant producers of all the Member States, even if exceeding those thresholds was not due to an increase in production in all those States. It ruled that in a common organization of markets with no system of national quotas all Community producers, regardless of the Member State in which they are based, must together, in an egalitarian manner, bear the consequences of the decisions which the Community institutions are led to adopt, in the exercise of their powers, in order to respond to the risk of an imbalance which may arise in the market between production and market outlets (judgment in Case C-27/90 SITPA v Oniflhor [1991] ECR I-133, paragraph 20).
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28 IT IS APPROPRIATE IN THE FIRST PLACE TO POINT OUT THAT UNDER THE PRINCIPLE OF NON-DISCRIMINATION BETWEEN COMMUNITY PRODUCERS OR CONSUMERS , WHICH IS ENSHRINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY AND WHICH INCLUDES THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF NATIONALITY LAID DOWN IN THE FIRST PARAGRAPH OF ARTICLE 7 OF THE EEC TREATY , COMPARABLE SITUATIONS MUST NOT BE TREATED DIFFERENTLY AND DIFFERENT SITUATIONS MUST NOT BE TREATED IN THE SAME WAY UNLESS SUCH TREATMENT IS OBJECTIVELY JUSTIFIED . IT FOLLOWS THAT THE VARIOUS ELEMENTS IN THE COMMON ORGANIZATION OF THE MARKETS , SUCH AS PROTECTIVE MEASURES , SUBSIDIES , AID AND SO ON , MAY NOT BE DIFFERENTIATED ACCORDING TO REGION OR ACCORDING TO OTHER FACTORS AFFECTING PRODUCTION OR CONSUMPTION EXCEPT BY REFERENCE TO OBJECTIVE CRITERIA WHICH ENSURE A PROPORTIONATE DIVISION OF THE ADVANTAGES AND DISADVANTAGES FOR THOSE CONCERNED WITHOUT DISTINCTION BETWEEN THE TERRITORIES OF THE MEMBER STATES .
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37 It is plain, however, that that condition is not satisfied by national legislation such as that at issue in the main proceedings which reduces from six to three years the period within which repayment may be sought of VAT wrongly paid, by providing that the new time-limit is to apply immediately to all claims made after the date of enactment of that legislation and to claims made between that date and an earlier date, being that of the entry into force of the legislation, as well as to claims for repayment made before the date of entry into force which are still pending on that date.
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48. That criterion is therefore specific in character inasmuch as it relates to situations in which a right of residence, exceptionally, may not be refused to a third country national who is a family member of a national of a Member State, as the effectiveness of the Union citizenship enjoyed by that national would otherwise be undermined ( Dereci and Others , paragraph 67).
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67. That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a Member State national, as the effectiveness of Union citizenship enjoyed by that national would otherwise be undermined.
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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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31. It is clear from paragraph 15 of the judgment in Case C‑391/92 Commission v Greece [1995] ECR I-1621 that rules which restrict the marketing of products to certain points of sale, and which have the effect of limiting the commercial freedom of economic operators, without affecting the actual characteristics of the products referred to, constitute a selling arrangement for the purposes of the case-law cited in paragraph 29 of this judgment. Therefore, the need to adapt the products in question to the rules in force in the Member State in which they are marketed prevents the abovementioned requirements from being treated as selling arrangements (see Canal Satélite Digital , paragraph 30). That is the case, inter alia, with regard to the need to alter the labelling of imported products (see, inter alia, Case C‑33/97 Colim [1999] ECR I‑3175, paragraph 37, and Case C‑416/00 Morellato [2003] ECR I‑9343, paragraphs 29 and 30).
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30 Moreover, the need in certain cases to adapt the products in question to the rules in force in the Member State in which they are marketed prevents the abovementioned requirements from being treated as selling arrangements within the meaning of paragraph 16 of Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097.
Justification for the restrictions found to exist
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44. Therefore where an intermediary, such as a service-station operator, while having separate legal personality, does not independently determine his conduct on the market since he depends entirely on his principal, such as a supplier of fuel, because the latter assumes the financial and commercial risks as regards the economic activity concerned, the prohibition laid down in Article 85(1) of the Treaty is not applicable to the relationship between that intermediary and the principal.
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53. Moreover, the Court has repeatedly held that, in the light of the dual objective of opening up competition and transparency pursued by the directives on the coordination of the procedures for the award of public contracts, the term "contracting authority" must be interpreted in functional terms (see, in particular, Case C-237/99 Commission v France [2001] ECR I-939, paragraphs 41 to 43, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraphs 51 to 53). The Court has also stated that, in the light of that dual purpose, the term "body governed by public law" must be interpreted broadly (Case C-373/00 Adolf Truley [2003] ECR-1931, paragraph 43).
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42 Consequently, the aim of the Directive is to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones (University of Cambridge, paragraph 17).
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28. The answer to Question 1 is therefore that, for the interpretation of Articles 2(2) and 9(4) of the Aarhus Convention, it is permissible to take the Aarhus Convention Implementation Guide into consideration, but that Guide has no binding force and does not have the normative effect of the provisions of the Aarhus Convention.
Question 2
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64. In order to find that there is such an arrangement there must be, in addition to a subjective element consisting in the intention to obtain a tax advantage, objective circumstances showing that, despite formal observance of the conditions laid down by Community law, the objective pursued by freedom of establishment, as set out in paragraphs 54 and 55 of this judgment, has not been achieved (see, to that effect, Case C-110/99 Emsland-Stärke [2000] ECR I-11569, paragraphs 52 and 53, and Case C-255/02 Halifax and Others [2006] ECR I-0000, paragraphs 74 and 75).
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52 A finding of an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the Community rules, the purpose of those rules has not been achieved.
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39 As the Advocate General points out in paragraph 30 of his Opinion, although the name `Monts de Lacaune' is the name of a specific mountain area and could accordingly be registered under Regulation No 2081/92 if the links between the characteristics of the product in question and that area were to fulfil the requirements of the regulation, such links are not necessary for obtaining authorization to use that name under the French legislation in question. In fact, that legislation, as can be seen, protects this type of geographical reference only in so far as the reference suggests `mountain origin', and not in so far as it relates to specific mountain areas.
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57 That applies in particular to a sentence of imprisonment and, a fortiori, to deportation, which negates the very right of residence conferred and guaranteed by Decision No 1/80 (see, by analogy, Watson and Belman, paragraph 20, Pieck, paragraph 19, and Messner, paragraph 14, cited above).
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14 Moreover, it must be added that, as the Court has already held in its judgment of 3 July 1980 in Case 157/79 Regina v Pieck (( 1980 )) ECR 2171, in relation to a failure to comply with the formalities required to establish the right of residence of a worker enjoying the protection of Community law, whilst the national authorities are entitled to make the failure to comply with such provisions subject to penalties comparable to those attaching to minor offences committed by their own nationals, they are not justified in imposing a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of workers . This would be especially so if the penalty consisted of imprisonment .
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113. That limitation on the ESCB’s intervention means (i) that the Member States cannot, in determining their budgetary policy, rely on the certainty that the ESCB will at a future point purchase their government bonds on secondary markets and (ii) that the programme in question cannot be implemented in a way which would bring about a harmonisation of the interest rates applied to the government bonds of the Member States of the euro area regardless of the differences arising from their macroeconomic or budgetary situation.
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32
In that regard, it should be recalled that Article 34 of Regulation No 1829/2003 permits a Member State to adopt emergency measures under that provision, subject to compliance not only with the substantive conditions laid down in that article but also with the procedural conditions provided for in Article 54 of Regulation No 178/2002 (see, to that effect, judgment of 8 September 2011, Monsanto and Others, C‑58/10 to C‑68/10, EU:C:2011:553, paragraphs 66 to 69).
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67. Thus, Article 34 of Regulation No 1829/2003 does not make the adoption of emergency measures subject to the substantive conditions provided for in Article 53 of Regulation No 178/2002.
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55
The same is true of the argument that the General Court found that PROAS had relied on the characteristic elements of the Spanish market by way of mitigating circumstances and not as factors illustrating the lesser seriousness of the infringement at issue. In fact, since the General Court carried out a review of PROAS’ claims relating to the characteristics of the Spanish market in the context of the assessment of mitigating circumstances, the General Court cannot, in any event, be criticised for not having examined them in the assessment of the seriousness of the infringement (see judgment of 5 December 2013 in Solvay Solexis v Commission, C‑449/11 P, not published, EU:C:2013:802, paragraphs 78 and 79).
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13 For the purpose of answering that question, it is necessary to bear in mind the principle, established by case-law (see, in particular, the judgments in Case 150/77 Bertrand v Ott [1978] ECR 1431, paragraphs 14 to 16 and 19, and in Case C-26/91 Handte v Traitements Mécano-chimiques des Surfaces [1992] ECR I-3967, paragraph 10), according to which the concepts used in the Convention, which may have a different content depending on the national law of the Contracting States, must be interpreted independently, by reference principally to the system and objectives of the Convention, in order to ensure that the Convention is uniformly applied in all the Contracting States. This rule must apply, in particular, to the concept of "consumer" within the meaning of Article 13 et seq. of the Convention, in so far as that concept is the principal factor in the determination of rules governing jurisdiction.
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10 In replying to the question from the national court, it should first be observed that the Court has consistently held that the phrase "matters relating to a contract" in Article 5(1) of the Convention is to be interpreted independently, having regard primarily to the objectives and general scheme of the Convention, in order to ensure that it is applied uniformly in all the Contracting States (see the judgment in Case 34/82 Martin Peters Bauunternehmung v Zuid Nederlandse Aannemers Vereniging [1983] ECR 987, paragraphs 9 and 10, and the judgment in Case 9/87 Arcado v Haviland [1988] ECR 1539, paragraphs 10 and 11). The phrase should not therefore be taken as referring to how the legal relationship in question before the national court is classified by the relevant national law.
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27 The fourth recital in the preamble to Regulation No 714/89 highlights the need to reinforce the measures for preventing and penalizing irregularities and frauds.
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43. In that regard, it should be borne in mind that while budgetary considerations may underlie a Member State’s choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy (see, to that effect, Case C‑187/00 Kutz-Bauer [2003] ECR I‑2741, paragraph 59, and Case C‑196/02 Nikoloudi [2005] ECR I‑1789, paragraph 53). Reasons of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty (see, by analogy, Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 34 and the case-law cited, and Case C‑384/08 Attanasio Group [2010] ECR I‑2055, paragraph 55).
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55. Secondly, with regard to the objective mentioned in the order for reference of the ‘rationalisation of the service provided to users’, it must be recalled that reasons of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty (see Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 34 and the case-law cited).
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12ARTICLE 3 OF REGULATION NO 1778/77 IS THEREFORE OF DIRECT AND INDIVIDUAL CONCERN TO THOSE IMPORTERS AND CONSEQUENTLY THE APPLICATIONS LODGED BY THE SUBSIDIARIES , AS IMPORTERS OF NTN PRODUCTS , ARE ADMISSIBLE . AS A RESULT THE APPLICATION LODGED BY NTN AGAINST THAT ARTICLE IS ALSO ADMISSIBLE .
THE SUBSTANCE OF THE APPLICATION
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107
That circumstance, combined in particular with the fact that EU law has not harmonised the national support schemes for green electricity, means that it is possible in principle for Member States to limit access to such schemes to green electricity production located in their territory (see, by analogy, in relation to Directive 2009/28, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraphs 94 and 97 to 99).
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99. Furthermore, as was also noted by the EU legislature in recital 25 to Directive 2009/28, it is essential, in order to ensure the proper functioning of the national support schemes, that Member States be able to ‘control the effect and costs of their national support schemes according to their different potentials’, while maintaining investor confidence.
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29 It must first be stated that such a duration is, at first sight, considerable. However, the reasonableness of such a period must be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (see, by analogy, the judgments of the European Court of Human Rights in the cases of Erkner and Hofauer of 23 April 1987, Series A No 117, § 66; Kemmache of 27 November 1991, Series A No 218, § 60; Phocas v France of 23 April 1996, Recueil des arrêts et décisions 1996-II, p. 546, § 71, and Garyfallou AEBE v Greece of 27 September 1997, Recueil des arrêts et décisions 1997-V, p. 1821, § 39).
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36. It follows from the case-law of the Court that the effect of national rules which determine the value of immovable property for the purposes of assessing the amount of tax payable when it is acquired through inheritance may be not only to discourage the purchase of immovable property situated in the Member State concerned, but also to reduce the value of the inheritance of a resident of a Member State other than that in which that property is situated (see, to that effect, Barbier , paragraph 62, and Jäger , paragraph 30).
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30. In that respect, according to the case-law of the Court, national provisions which determine the value of immovable property for the purposes of calculating the amount of tax due when it is acquired through inheritance may not only be such as to discourage the purchase of immovable property situated in the Member State concerned and the transfer of financial ownership of such property to another person by a resident of another Member State, but may also have the effect of reducing the value of the inheritance of a resident of a Member State other than that in which that property is situated (see to that effect, Barbier , paragraph 62).
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45 In addition, Directive 93/104 defines its scope broadly in that, as is clear from Article 1(3), it applies to all sectors of activity, whether private or public, within the meaning of Article 2 of Directive 89/391, with the exception of certain specific sectors which are expressly listed.
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42. Regarding the issue whether reduced transport fares such as those granted by certain Länder in Austria come within the scope of the Treaties for the purposes of Article 18(1) TFEU, it should be observed that, in holding that access to training comes within the scope of EU law, the Court has held previously that national aid granted to students to cover their maintenance costs, social benefits provided for by a national, non-contributory scheme and so-called tideover allowances provided for by national legislation intended for unemployed youth seeking their first employment all come within the scope thereof (see Bidar , paragraph 42; Grzelczyk , paragraph 46, and D’Hoop , paragraphs 34 and 35).
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42. In view of those developments since the judgments in Lair and Brown , it must be considered that the situation of a citizen of the Union who is lawfully resident in another Member State falls within the scope of application of the Treaty within the meaning of the first paragraph of Article 12 EC for the purposes of obtaining assistance for students, whether in the form of a subsidised loan or a grant, intended to cover his maintenance costs.
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107 As regards semen and embryos, it is sufficient to recall that when the contested decision was adopted the risk of vertical transmission had not been definitively excluded.
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60. It is true that, as submitted by the Republic of Latvia, the notary’s ascertainment, before carrying out the authentication of a document or agreement, that all the conditions required by law for drawing up that document or agreement have been satisfied, pursues an objective in the public interest, namely to guarantee the lawfulness and legal certainty of documents entered into by individuals. However, the mere pursuit of that objective cannot justify the powers necessary for that purpose being reserved exclusively to notaries who are nationals of the Member State concerned (judgment in Commission v Belgium , C‑47/08, EU:C:2011:334, paragraphs 94 and 95).
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95. It is true that, as the Kingdom of Belgium observes, the notary’s verification of those facts pursues an objective in the public interest, namely to guarantee the lawfulness and legal certainty of documents entered into by individuals. However, the mere pursuit of that objective cannot justify the powers necessary for that purpose being reserved exclusively to notaries who are nationals of the Member State concerned.
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34. One counter-argument to challenge that analysis is that goods, materials or raw materials resulting from a manufacturing or extraction process, the primary aim of which is not the production of that item, may be regarded not as a residue but as a by-product which the undertaking does not wish to " discard" , within the meaning of the first paragraph of Article 1(a) of Directive 75/442, but intends to exploit or market on terms which are advantageous to it, in a subsequent process, without any further processing prior to reuse.
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33
The Court has nevertheless held that, even if a project was authorised before the system of protection laid down by the Habitats Directive became applicable to the site in question and, accordingly, such a project was not subject to the requirements relating to the procedure for prior assessment according to Article 6(3) of that directive, its implementation nevertheless falls within the scope of Article 6(2) of that directive (see, to that effect, judgments in Stadt Papenburg, C‑226/08, EU:C:2010:10, paragraphs 48 and 49, and Commission v Spain, C‑404/09, EU:C:2011:768, paragraphs 124 and 125).
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48. In that case, as such a project has been authorised before the expiry of the time-limit for transposing the Habitats Directive, it would not be subject to the requirements relating to the procedure for prior assessment of the implications of the project for the site concerned, set out in that directive (see, to that effect, Case C-209/04 Commission v Austria [2006] ECR I-2755, paragraphs 53 to 62).
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8 IT FOLLOWS FROM THE FOREGOING THAT THE OBJECTION OF INADMISSIBILITY RAISED BY THE COUNCIL MUST BE UPHELD AND THE APPLICANT' S PRINCIPAL CLAIM FOR A DECLARATION THAT REGULATION NO 2089/84 IS VOID IN ITS ENTIRETY MUST BE DISMISSED . IT IS, HOWEVER, NECESSARY TO EXAMINE THE MERITS OF THE ALTERNATIVE CLAIM FOR A DECLARATION THAT THOSE PROVISIONS OF THE CONTESTED REGULATION WHICH ARE OF CONCERN EXCLUSIVELY TO NACHI ARE VOID .
SUBSTANCE
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27 So, the mere fact that, in the instant case, the service provided by the undertaking holding the contracts for driveage work and then by the undertaking to which the work was then subcontracted is similar does not warrant the conclusion that an economic entity has been transferred between the first and the second undertaking. Such an entity cannot be reduced to the activity entrusted to it. Its identity also emerges from other factors, such as its workforce, its management staff, the way in which its work is organised, its operating methods or indeed, where appropriate, the operational resources available to it (Süzen, cited above, paragraph 15, Joined Cases C-127/96, C-229/96 and C-74/97 Hernández Vidal and Others [1998] ECR I-8179, paragraph 30, and Joined Cases C-173/96 and C-247/96 Hidalgo and Others [1998] ECR I-8237, paragraph 30).
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15 As observed by most of the parties who commented on this point, the mere fact that the service provided by the old and the new awardees of a contract is similar does not therefore support the conclusion that an economic entity has been transferred. An entity cannot be reduced to the activity entrusted to it. Its identity also emerges from other factors, such as its workforce, its management staff, the way in which its work is organized, its operating methods or indeed, where appropriate, the operational resources available to it.
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56 The argument put forward by Mr Barkoci and Mr Malik, to the effect that application by the competent authorities of a Member State of the national immigration rules requiring Czech nationals to obtain leave to enter is in itself liable to render ineffective the rights granted to such persons by Article 45(3) of the Association Agreement, cannot for that reason be accepted.
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41. As regards, in particular, the possibility of seeking compensation for loss caused by a contract or conduct liable to restrict or distort competition, it should be recalled that the full effectiveness of Article 81 EC and, in particular, the practical effect of the prohibition laid down in Article 81(1) EC would be put at risk if it were not open to any person to claim damages for loss caused to him by a contract or conduct liable to restrict or distort competition (see Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraph 26, and Manfredi and Others , paragraph 60).
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26 The full effectiveness of Article 85 of the Treaty and, in particular, the practical effect of the prohibition laid down in Article 85(1) would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition.
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13 In its judgments in Case 154/80 Cooeperatieve Aardappelenbewaarplaats [1981] ECR 445, paragraph 12, and Case 230/87 Naturally Yours Cosmetics [1988] ECR 6365, paragraph 11, the Court stated on this point that the basis of assessment for a provision of services is everything which makes up the consideration for the service and that a provision of services is therefore taxable only if there is a direct link between the service provided and the consideration received (see also the judgment in Case 102/86 Apple and Pear Development Council v Commissioners of Customs and Excise [1988] ECR 1443, paragraphs 11 and 12).
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11. As to those submissions, suffice it to state that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that 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, inter alia, Case C-211/02 Commission v Luxembourg [2003] ECR I-2429, paragraph 6).
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6. Suffice it in this regard to note that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that 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, inter alia , Case C-173/01 Commission v Greece [2002] ECR I-6129, paragraph 7).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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16
As the referring court has observed, inheritances consisting in the transfer to one or more persons of assets left by a deceased person constitute, according to the settled case-law of the Court, movements of capital within the meaning of Article 63 TFEU, except in cases where their constituent elements are confined within a single Member State (see, to that effect, judgments of 23 February 2006 in van Hilten-van der Heijden, C‑513/03, EU:C:2006:131, paragraphs 39 to 42; of 17 January 2008 in Jäger, C‑256/06, EU:C:2008:20, paragraphs 24 and 25; of 17 October 2013 in Welte, C‑181/12, EU:C:2013:662, paragraphs 19 and 20; and of 3 September 2014 in Commission v Spain, C‑127/12, not published, EU:C:2014:2130, paragraphs 52 and 53).
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53. La Cour a ainsi jugé que l’impôt prélevé sur les successions, lesquelles consistent en une transmission à une ou à plusieurs personnes du patrimoine laissé par une personne décédée, comme le traitement fiscal des donations, que celles-ci portent sur des sommes d’argent, des biens immeubles ou des biens meubles, relèvent des dispositions du traité relatives aux mouvements de capitaux, à l’exception des cas où leurs éléments constitutifs se cantonnent à l’intérieur d’un seul État membre (voir, en ce sens, arrêt Mattner, EU:C:2010:216, point 20 ainsi que jurisprudence citée).
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22. It is necessary, however, to determine whether such a restriction may be allowed as a derogation, on grounds of public policy, public security or public health, as expressly provided for under Articles 45 EC and 46 EC, which are applicable in the area of freedom to provide services 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-470/11 Garkalns [2012] ECR, paragraph 35 and the case-law cited).
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64. As is apparent from Case 81/72 Commission v Council , paragraphs 3 and 4; Case 70/74 Commission v Council [1975] ECR 795, paragraph 7; and Case 59/81 Commission v Council , paragraph 8, the Council decided, first of all, in 1972, to apply, as an experiment and for a period of three years, a system of adjustment of remuneration involving recourse to two specific indices, while rejecting the automatic application of an arithmetical mean between the two indices which were adopted. In the light of that approach, the Court held that, by its decision, the Council, acting within the framework of the powers relating to the remunerations of the staff conferred on it by Article 65 of the Staff Regulations, assumed obligations which it has bound itself to observe for the period it has defined (see Case 81/72 Commission v Council , paragraphs 8 and 9; Case 70/74 Commission v Council , paragraphs 20 to 22; and Case 59/81 Commission v Council , paragraph 8).
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7 THIS PROVISION THUS LEAVES TO THE COUNCIL THE CHOICE OF THE MEANS AND FORMS BEST SUITED TO CARRY OUT AN EMOLUMENTS POLICY IN CONFORMITY WITH THE CRITERIA LAID DOWN BY ARTICLE 65 .
THE COUNCIL, WHICH IS RESPONSIBLE FOR THE ORGANIZATION OF THE STAFF, MAY, AS PART OF THE MEANS OF IMPLEMENTATION OF ARTICLE 65, INCORPORATE PROCEDURES OF COLLECTIVE BARGAINING, SIMILAR TO THOSE PRACTISED IN THE MEMBER STATES, ACCORDING TO THEIR VARIOUS METHODS .
THE COUNCIL IS FREE TO DIVIDE UP THE DECISION-MAKING PROCESS INTO SUCCESSIVE PHASES, IN ACCORDANCE WITH A PRACTICE USUAL IN THE COMMUNITY, AND TO DECIDE CERTAIN QUESTIONS OF PRINCIPLE FIRST, IN ORDER TO FACILITATE THE APPLICATION OF SUBSEQUENT IMPLEMENTING MEASURES .
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45. À cet égard, la République fédérale d’Allemagne fait valoir qu’une correction fréquente des dettes douanières pourrait avoir pour conséquence des dépenses importantes pour les États membres. Il convient cependant de rappeler que la réglementation de l’Union en matière de recouvrement de la dette douanière doit être interprétée à la lumière de l’objectif d’une mise à disposition rapide et efficace des ressources propres de l’Union (arrêt du 5 octobre 2006, Commission/Belgique, C‑378/03, Rec. p. I‑9805, point 48 et jurisprudence citée), de sorte que des considérations d’ordre économique, à supposer qu’elles soient établies, ne sauraient permettre à un État membre de se soustraire à son obligation de prendre en compte le montant des droits de douane à recouvrer dans les délais prévus par ladite réglementation.
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36. Secondly, such a prohibition would, by means of a broad interpretation of that condition governing whether comparative advertising is permitted, lead to a considerable restriction on the scope of comparative advertising (see, by analogy, De Landtsheer Emmanuel , paragraphs 70 and 71).
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71. Moreover, since such a prohibition does not follow expressly from the wording of Article 3a(1)(f) of the directive, to find that prohibition as a matter of principle by means of a broad interpretation of that condition governing whether comparative advertising is permitted would constitute a restriction on the scope of comparative advertising. That result would run counter to the settled case‑law of the Court (see paragraph 63 of this judgment).
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14 It follows that occupational pension schemes were required to achieve equal treatment as from 17 May 1990.
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23
Having regard to that high level of protection of authors, the Court — ruling on a question referred in the action at first instance from which the main proceedings have arisen — held that the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29 must be interpreted broadly, as recital 23 of that directive expressly states, and that a retransmission by means of an internet stream, such as that at issue in the main proceedings, constitutes such a communication (see, to that effect, judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraphs 20 and 40).
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20. First of all, it is to be noted that the principal objective of Directive 2001/29 is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. It follows that ‘communication to the public’ must be interpreted broadly, as recital 23 in the preamble to the directive indeed expressly states ( SGAE , paragraph 36, and Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others [2011] ECR I-0000, paragraph 186).
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21. After arriving in Germany, Mr Derin attended primary school, from August 1982 until July 1988, and, from August 1988 to July 1990, a vocational school. He completed his schooling in the course of 1991 by passing the Lower Secondary Examination (‘mittlere Reife’).
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23. It follows from the case-law of the Court that, in the absence of provisions of Community law, disputes concerning the recovery of amounts wrongly paid under Community law must be decided by national courts in application of their own domestic law, subject to the limits imposed by Community law, on the basis that the rules and procedures laid down by domestic law must not have the effect of making it practically impossible or excessively difficult to recover the aid not due and that the national legislation must be applied in a manner which is not discriminatory as compared to procedures for deciding similar national disputes (Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others [1983] ECR 2633, paragraph 19, Case C‑366/95 Steff-Houlberg Export and Others [1998] ECR I‑2661, paragraph 15, and Case C‑336/00 Huber [2002] ECR I‑7699, paragraph 55).
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15 It follows from the case-law of the Court that, in the absence of provisions of Community law, disputes concerning the recovery of amounts paid but not due under Community law must be decided by national courts pursuant to their own national law subject to the limits imposed by Community law inasmuch as the rules and procedures laid down by national law must not have the effect of making it virtually impossible or excessively difficult to implement Community rules and national legislation must be applied in a manner which is not discriminatory compared to procedures for deciding similar national disputes (see, in particular, Deutsche Milchkontor, paragraph 19, and, as regards national procedural law, Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12, and Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen [1995] ECR I-4705, paragraph 17). Although national law requires the various interests in question, namely, on the one hand, the public interest in the revocation of an unlawful administrative measure and, on the other, the protection of the legitimate expectation of the person to whom it is addressed, to be weighed against one another before the measure is revoked, the interests of the Community must be taken fully into account (Deutsche Milchkontor, paragraph 32).
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34. Consequently, that quality may be included as an award criterion in the contract notice or in the relevant tendering specifications.
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21. According to settled case-law, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters (see, inter alia, Case C-42/99 Eru Portuguesa [2000] ECR I-7691, paragraph 13; Case C-495/03 Intermodal Transports [2005] ECR I-0000, paragraph 47; and Case C-445/04 Possehl Erzkontor [2005] ECR I-0000, paragraph 19).
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19. According to settled case-law, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs tariff purposes is in general to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters (Case C-396/02 DFDS [2004] ECR I-8439, paragraph 27; Case C-495/03 Intermodal Transports [2005] ECR I‑0000, paragraph 47).
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121
Those requirements also appear in the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2016 C 439, p. 1).
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24. The situations falling within the scope ratione materiae of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 18 EC (Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraphs 15 and 16, Grzelczyk , cited above, paragraph 33, and D'Hoop , paragraph 29).
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29 The situations falling within the scope of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 8a of the EC Treaty (now, after amendment, Article 18 EC) (Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraphs 15 and 16, and Grzelczyk, paragraph 33).
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Toutefois, ces conditions ne sauraient porter sur la définition du contenu des exonérations prévues (arrêt Commission/France,
C‑197/12, EU:C:2013:202, point 31) et, par conséquent, ne sauraient justifier une exonération généralisée de la location de
postes d’amarrage et d’emplacements pour l’entreposage, y compris lorsque cette location concerne des bateaux qui, en raison
de leurs caractéristiques objectives, ne se prêtent pas à la pratique du sport ou de l’éducation physique.
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60. It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave (see Paquay , paragraph 30 and the case-law cited).
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30. It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the Community legislature subsequently laid down special protection for women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave (Case C-32/93 Webb [1994] ECR I-3567, paragraph 21; Brown , paragraph 18; C-109/00 Tele Danmark [2001] ECR I-6993, paragraph 26; and McKenna , paragraph 48).
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65. Il est de jurisprudence constante que, dans l’hypothèse où tous les autres moyens d’un pourvoi ont été rejetés, les conclusions concernant la prétendue irrégularité de la décision du Tribunal sur les dépens doivent être rejetées comme irrecevables, en application de l’article 58, second alinéa, du statut de la Cour de justice de l’Union européenne, aux termes duquel un pourvoi ne peut porter uniquement sur la charge et le montant des dépens (voir, notamment, arrêt LPN et Finlande/Commission, C-514/11 P et C-605/11 P, EU:C:2013:738, point 100 ainsi que jurisprudence citée).
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22
In that regard, it must be stated that it is clear from paragraphs 30 to 61 of the judgment of 7 June 2016 in Ghezelbash (C‑63/15) that Article 27(1) of Regulation No 604/2013, read in the light of recital 19 thereof, provides an asylum applicant with an effective remedy against a transfer decision made in respect of him, which may, inter alia, concern the examination of the application of that regulation and which may therefore result in a Member State’s responsibility being called into question, even where there are no systemic deficiencies in the asylum process or in the reception conditions for asylum applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union.
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38
Furthermore, the scope of the remedy available to an asylum seeker against a decision to transfer him is made clear in recital 19 of Regulation No 604/2013, the content of which did not appear in Regulation No 343/2003.
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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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31. Moreover, a service provider in Winters’ situation does not, on any view, use those signs ‘for goods or services’ which are identical with, or similar to, those for which the trade mark was registered, within the meaning of that article. Indeed, the Court has already stated that that expression generally applies to goods or services of third parties who use the sign (see Case C-48/05 Adam Opel [2007] ECR I-1017, paragraph 28 and 29; O2 Holdings and O2 (UK) , paragraph 34, and Google France and Google , paragraph 60). It is established that in the main action the service provided by Winters consists of the filling of cans and that this service does not have any similarity with the product for which Red Bull’s trade marks were registered.
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60. The expression ‘in relation to goods or services’ identical with those for which the trade mark is registered, which features in Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94, relates, in principle, to goods or services of third parties who use a sign identical with the mark (see Case C‑48/05 Adam Opel [2007] ECR I‑1017, paragraphs 28 and 29, and Case C‑533/06 O2 Holdings and O2 (UK) [2008] ECR I‑4231, paragraph 34). As appropriate, it can also refer to goods or services of another person on whose behalf the third party is acting (order in UDV North America , paragraphs 43 to 51).
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181 Since, according to the findings of the Court of First Instance, the Commission had been able to establish that Monte had taken part in meetings between undertakings of a manifestly anti-competitive nature, the Court of First Instance was entitled to consider that it was for Monte to provide another explanation of the tenor of those meetings. It follows that the Court of First Instance did not unduly reverse the burden of proof and did not set aside the presumption of innocence.
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43. Moreover, a restriction on freedom of establishment is prohibited by Article 52 of the Treaty even if of limited scope or minor importance (see, to that effect, Commission v France , cited above, paragraph 21, and Case C-34/98 Commission v France [2000] ECR I-995, paragraph 49).
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49 As regards the argument of the French Government to the effect that in any event the CRDS only affects a limited number of the workers concerned by this action on account of bilateral conventions on the avoidance of double taxation concluded by the French Republic, and that the rate of the contested levy is minimal, it need merely be observed that, according to the case-law of the Court, the articles of the Treaty concerning the free movement of goods, persons, services and capital are fundamental Community provisions and any restriction, even minor, of that freedom is prohibited (see in particular Case C-49/89 Corsica Ferries France [1989] ECR 4441, paragraph 8).
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38. En ce qui concerne l’argument avancé par le Grand-Duché de Luxembourg selon lequel la pratique litigieuse vise à lutter contre les transactions frauduleuses de véhicules volés dans le cadre de la procédure d’immatriculation des véhicules, il convient de constater que cette justification a trait à la lutte contre la criminalité, laquelle peut constituer une raison impérieuse d’intérêt général susceptible de justifier une entrave à la libre circulation des marchandises (arrêt du 10 avril 2008, Commission/Portugal, C‑265/06, non encore publié au Recueil, point 38).
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59. Moreover, if Article 12 of Regulation No 1612/68 were to be interpreted as being limited, since the entry into force of Directive 2004/38, to conferring the right to equal treatment with regard to access to education without providing for any right of residence for the children of migrant workers, maintaining it would appear superfluous after the entry into force of that directive. Article 24(1) of the directive provides that all Union citizens residing in the territory of the host Member State are to enjoy equal treatment with the nationals of that State within the scope of the Treaty, and it has been held that access to education falls within the scope of European Union law (see, inter alia, Case 293/83 Gravier [1985] ECR 593, paragraphs 19 and 25).
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19 THE FIRST REMARK WHICH MUST BE MADE IN THAT REGARD IS THAT ALTHOUGH EDUCATIONAL ORGANIZATION AND POLICY ARE NOT AS SUCH INCLUDED IN THE SPHERES WHICH THE TREATY HAS ENTRUSTED TO THE COMMUNITY INSTITUTIONS , ACCESS TO AND PARTICIPATION IN COURSES OF INSTRUCTION AND APPRENTICESHIP , IN PARTICULAR VOCATIONAL TRAINING , ARE NOT UNCONNECTED WITH COMMUNITY LAW .
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28. The effect of that principle is therefore to prohibit wholly artificial arrangements which do not reflect economic reality and are set up with the sole aim of obtaining a tax advantage (see, to that effect, Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 55).
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57. The principle of mutual recognition, which underpins Framework Decision 2002/584, means that, in accordance with Article 1(2) thereof, the Member States are in principle obliged to act upon a European arrest warrant. Apart from the cases of mandatory non-execution laid down in Article 3 of the Framework Decision, the Member States may refuse to execute such a warrant only in the cases listed in Article 4 thereof (Case C‑388/08 PPU Leymann and Pustovarov [2008] ECR I‑0000, paragraph 51).
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51. The principle of mutual recognition, which underpins the Framework Decision, also means that, in accordance with Article 1(2) of the Framework Decision, the Member States are in principle obliged to act upon a European arrest warrant. They must or may refuse to execute a warrant only in the cases listed in Articles 3 and 4.
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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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23. In Commission v Italy , the Court held that the principle of freedom to set premiums was infringed by rate-freezing rules affecting both the fixing and the altering of the rates for insurance policies covering third-party liability arising from the use of motor vehicles in relation to risks situated within Italy ( Commission v Italy , paragraphs 32 and 48).
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48. It follows that, by introducing and maintaining in force rate-freezing rules applicable to all contracts of insurance in respect of third-party liability arising fromu the use of motor vehicles in relation to risks situated within Italian territory, without distinguishing between insurance companies having their head office in Italy and those conducting their business in Italy through branch offices or under the freedom to provide services, in breach of the principle of freedom to set premiums referred to in Articles 6, 29 and 39 of Directive 92/49, the Italian Republic has failed to fulfil its obligations under that directive.
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70. Contrary to the contention of the claimants in Case C‑154/04, a negative list system, which entails limiting the prohibition to only the substances included on that list, might not suffice to achieve the objective of protecting human health. Reliance in this instance on such a system would mean that, as long as a substance is not included on the list, it can be freely used in the manufacture of food supplements, even though, by reason of its novelty for example, it has not been subject to any scientific assessment apt to guarantee that it entails no risk to human health.
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24. In the absence of a definition in the Treaty of ‘movement of capital’ for the purposes of Article 56(1) EC, the Court has previously recognised the nomenclature annexed to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty [an article repealed by the Treaty of Amsterdam] (OJ 1988 L 178, p. 5) as having indicative value, 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 were replaced by Articles 73B to 73G of the EC Treaty, now Articles 56 EC to 60 EC), subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive (see, in particular, Case C‑513/03 van Hilten‑van der Heijden [2006] ECR I‑1957, paragraph 39; Centro di Musicologia Walter Stauffer , paragraph 22; and Case C‑11/07 Eckelkamp [2008] ECR I‑0000, paragraph 38). Gifts and endowments are listed under Heading XI, entitled ‘Personal capital movements’ in Annex I to Directive 88/361.
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38. In the absence of a definition in the EC Treaty of ‘movement of capital’ for the purposes of Article 56(1) EC, the Court has previously recognised the nomenclature annexed to Directive 88/361 as having indicative value, even though the latter was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty (subsequently, Articles 69 and 70(1) of the EC Treaty, repealed by the Treaty of Amsterdam), subject to the qualification, contained in the introduction to the nomenclature, that the list set out therein is not exhaustive (see, in particular, Case C‑513/03 van Hilten‑van der Heijden [2006] ECR I‑1957, paragraph 39; Case C‑452/04 Fidium Finanz [2006] ECR I‑9521, paragraph 41; Federconsumatori and Others , paragraph 20; and Case C‑256/06 Jäger [2008] ECR I‑0000, paragraph 24).
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37. En effet, dans une situation où l’État membre n’a pas communiqué les intérêts protégés par les mesures nationales qu’il a prises, il est inévitable que la Commission examine si lesdites mesures sont justifiées par l’un des intérêts prévus à l’article 21, paragraphe 4, deuxième alinéa, du règlement sur les concentrations (arrêt du 22 juin 2004, Portugal/Commission, C-42/01, Rec. p. I-6079, point 59).
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38 Furthermore, although the Court has held that the term needs in the general interest, not having an industrial or commercial character does not exclude needs which are or can be satisfied by private undertakings as well (BFI Holding, cited above, paragraph 53), it has also found that the existence of significant competition, and in particular the fact that the entity concerned is faced with competition in the market place, may be indicative of the absence of a need in the general interest, not having an industrial or commercial character (BFI Holding, cited above, paragraph 49).
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49 The existence of significant competition, and in particular the fact that the entity concerned is faced with competition in the marketplace, may be indicative of the absence of a need in the general interest, not having an industrial or commercial character.
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61. The Court finds, in the light of the third condition referred to in paragraph 54 of this judgment, that a temporary and transient act of reproduction is intended to enable the completion of a technological process of which it forms an integral and essential part. In those circumstances, given the principles set out in paragraphs 57 and 58 of this judgment, those acts of reproduction must not exceed what is necessary for the proper completion of that technological process.
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34. Second, it should be noted that, according to recitals 4, 5 and 9 in the preamble to Directive No 469/2009, the SPC is designed to re-establish a sufficient period of effective protection of a basic patent by permitting the holder to enjoy an additional period of exclusivity on the expiry of his patent, which is intended to compensate, at least in part, for the delay to the commercial exploitation of his invention by reason of the time which has elapsed between the date on which the application for that patent was filed and the date on which the first marketing authorisation in the European Union was granted (see, to that effect, judgment in Actavis Group PTC and Actavis UK , C‑443/12, EU:C:2013:833, paragraph 31 and the case-law cited).
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31. En effet, le CCP ne vise qu’à rétablir une durée de protection effective suffisante du brevet de base en permettant à son titulaire de bénéficier d’une période d’exclusivité supplémentaire à l’expiration de son brevet destinée à compenser, au moins partiellement, le retard pris dans l’exploitation commerciale de son invention en raison du laps de temps qui s’est écoulé entre la date du dépôt de la demande de brevet et celle de l’obtention de la première AMM dans l’Union européenne (arrêt du 11 novembre 2010, Hogan Lovells International, C‑229/09, Rec. p. I‑11335, point 50; ainsi que arrêt Georgetown University, précité, point 36).
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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21 In accordance with the case-law of the Court (see, in particular, Case C-349/87 Paraschi v Landesversicherunganstalt Wuerttemberg [1991] ECR I-4501, paragraph 22), it would be contrary to Articles 48 to 51 of the Treaty if, as a consequence of the exercise of their right to freedom of movement, migrant workers were to lose the advantages in the field of social security guaranteed to them by the laws of a single Member State; such a consequence might discourage Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom.
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22 It must then be pointed out that although, as the Court has held, Article 51 of the Treaty leaves in being differences between the social security systems of the Member States and hence in the rights of the people working there (Case C-227/89 Roenfeldt [1991] ECR I-323), it is also settled that the aim of Articles 48 to 51 would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the advantages in the field of social security guaranteed to them by the laws of a single Member State; such a consequence might discourage Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (see most recently the judgment in Case C-10/90 Masgio [1991] ECR I-1119, paragraph 18).
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32. Enfin, il convient de rappeler que, dans le système établi par l’article 258 TFUE, la Commission dispose d’un pouvoir discrétionnaire pour intenter un recours en manquement et qu’il n’appartient pas à la Cour d’apprécier l’opportunité de son exercice (voir, notamment, arrêts du 6 juillet 2000, Commission/Belgique, C‑236/99, Rec. p. I‑5657, point 28, et du 14 mai 2002, Commission/Allemagne, C‑383/00, Rec. p. I‑4219, point 19).
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64 Thus, in paragraphs 7 and 8 of its judgment of 25 May 1971 in Case 80/70 Defrenne v Sabena [1971] ECR 445, the Court held that the concept of pay could not cover social security schemes or benefits, such as retirement pensions, which were directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned, and which were obligatorily applicable to general categories of workers. Such schemes give workers the benefit of a statutory scheme, to whose financing the contributions of workers, employers and possibly the public authorities are determined not so much by the employment relationship between employer and workers as by considerations of social policy.
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44 In those circumstances, overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many contracted-out pension schemes . It is appropriate, however, to provide for an exception in favour of individuals who have taken action in good time in order to safeguard their rights . Finally, it must be pointed out that no restriction on the effects of the aforesaid interpretation can be permitted as regards the acquisition of entitlement to a pension as from the date of this judgment .
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222. Like that case-law on new developments in case-law, a change in an enforcement policy, in this instance the Commission’s general competition policy in the matter of fines, especially where it comes about as a result of the adoption of rules of conduct such as the Guidelines, may have an impact from the aspect of the principle of non-retroactivity.
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