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35. It is sufficient to find that Kokopelli undoubtedly did not have standing to bring an action for annulment of Directives 2002/55 and 2009/145 on the basis of Articles 230 EC and 263 TFEU. Consequently, it is entitled, in an action brought in accordance with national law, to plead the invalidity of those directives even though it did not bring an action for their annulment before the EU judicature within the period laid down in those articles (see, to that effect, Afton Chemical , paragraphs 19 to 25).
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19. The question therefore arises whether an action for annulment by Afton, under the fourth paragraph of Article 230 EC, challenging the contested provisions, would undoubtedly have been admissible on the ground that those provisions were of direct and individual concern to it (see, to that effect, Case C‑241/95 Accrington Beef and Others [1996] ECR I‑6699, paragraph 15, and Case C‑343/07 Bavaria and Bavaria Italia [2009] ECR I‑0000, paragraph 40).
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81. On account of that position of weakness, such a worker may be dissuaded from explicitly claiming his rights vis-à-vis his employer where doing so may expose him to measures taken by the employer which are likely to affect the employment relationship in a manner detrimental to that worker.
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63. Thus, penalising the failure on the part of the taxable person to comply with the obligations relating to accounts and tax returns by a denial of the right to deduct clearly goes further than is necessary to attain the objective of ensuring the correct application of those obligations, since EU law does not prevent Member States from imposing, where necessary, a fine or a financial penalty proportionate to the seriousness of the offence. Such a practice also goes further than is necessary for the correct collection of VAT and for the prevention of evasion within the meaning of Article 273 of Directive 2006/112, since it may even lead to the loss of the right to deduct if the reassessment of the tax return by the tax authorities is not made until after the expiry of the limitation period available to the taxable person for the purpose of making the deduction (see, by analogy, judgment in Ecotrade , C‑95/07 and C‑96/07, EU:C:2008:267, paragraphs 67 and 68).
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68. That practice also goes further than is necessary for the correct collection of the tax and for the prevention of evasion within the meaning of Article 22(8) of the Sixth Directive, since it may even lead to the loss of the right to deduct if the reassessment of the tax return by the tax authorities is made after the expiry of the limitation period available to the taxable person in which to make the deduction (see, by analogy, Gabalfrisa and Others , paragraphs 53 and 54).
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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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37. It must be recalled that according to settled case-law it is open to the contracting authority when choosing the most economically advantageous tender to choose the criteria on which it proposes to base the award of contract, provided that the purpose of those criteria is to identify the most economically advantageous tender and that they do not confer on the contracting authority an unrestricted freedom of choice as regards the award of the contract to a tenderer (see, to that effect, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 19 and 26; Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraphs 36 and 37; and C oncordia Bus Finland , paragraphs 59 and 61).
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19 Although the second alternative leaves it open to the authorities awarding contracts to choose the criteria on which they propose to base their award of the contract, their choice is limited to criteria aimed at identifying the offer which is economically the most advantageous . Indeed, it is only by way of exception that Article 29 ( 4 ) provides that an award may be based on criteria of a different nature "within the framework of rules whose aim is to give preference to certain tenderers by way of aid, on condition that the rules invoked are in conformity with the Treaty, in particular Articles 92 et seq ."
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80. Further, the measures referred to do not deprive farm owners of the use of their fish farms, but enable them to continue to carry on their activities there.
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270. As regards the prior requirement to show that the Community budget might incur a serious loss, it should be noted that, as is clear from paragraph 146 above, the Commission is not required to prove that there has been a loss but may simply adduce sound evidence of such loss ( Ireland v Commission , cited above, paragraph 29).
4. The principle of proportionality
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29 The Commission is not compelled to prove that there have been losses but may simply adduce highly significant evidence to that effect. The reason for this mitigation of the burden of proof on the Commission lies in the division of powers between the Community and the Member States concerning the common agricultural policy (see, to that effect, Case C-48/91 Netherlands v Commission, cited above, paragraph 17).
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34 The transfer duties referred to in Article 12(1)(b) of the Directive must be regarded as registration charges levied in connection with certain transactions involving the transfer of businesses or immovable property, on the basis of general and objective criteria.
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16. 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, inter alia, Case C‑339/98 Peacock [2000] ECR I‑8947, paragraph 9; 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‑311/04 Algemene Scheeps Agentuur Dordrecht [2006] ECR I‑609, paragraph 26).
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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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76. It is to be noted, in that regard, that the rules prohibiting restrictions on freedom of movement and freedom of establishment laid down in Articles 28 and 31 of the EEA Agreement are identical to those established in Articles 39 EC and 43 EC.
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35
In that regard, it must be noted that the Court has held that Directive 2008/115 is applicable to those effects which occur after the date of its applicability in the Member State concerned of entry-ban decisions taken under national rules which were applicable before that date. Although that directive does not include a provision providing for transitional arrangements in relation to entry-ban decisions adopted before it became applicable, it is nevertheless clear from settled case-law that new rules apply immediately, except in the event of a derogation, to the future effects of a situation which arose under the old rules (see, to that effect, judgment of 19 September 2013, Filev and Osmani, C‑297/12, EU:C:2013:569, paragraphs 39 to 41).
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39. In that regard, it is important to note from the outset that that directive does not include a provision providing for transitional arrangements in relation to entry-ban decisions taken before it became applicable.
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35. In that respect, it must be pointed out that the effectiveness of fiscal supervision constitutes an overriding requirement of general interest capable of justifying a restriction on the exercise of fundamental freedoms guaranteed by the Treaty (see, to that effect, Case C‑254/97 Baxter and Others [1999] ECR I‑4809, paragraph 18 and the case‑law cited).
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32. As regards the placing of foodstuffs on the market, the Court has held that it is for the Member States, in the absence of harmonisation, to decide on their intended level of protection of human health and life, always taking into account the requirements of the free movement of goods within the Community (see, to that effect, Case 174/82 Sandoz [1983] ECR 2445, paragraph 16; Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior et Publivía [1991] ECR I-4151, paragraph 16; Case C-271/92 LPO [1993] ECR I-2899, paragraph 10; Commission v Denmark , paragraph 42; and Case C-41/02 Commission v Netherlands [2004] ECR I-11375, paragraph 42).
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42. As regards the question whether that administrative practice may none the less be justified on the basis of Article 30 EC, it is for the Member States, in default of harmonisation and to the extent that uncertainties continue to exist in the current state of scientific research, to decide on their intended level of protection of human health and life and on whether to require prior authorisation for the marketing of foodstuffs, always taking into account the requirements of the free movement of goods within the Community (see Sandoz , paragraph 16; Case C-42/90 Bellon [1990] ECR I-4863, paragraph 11; and Case C-400/96 Harpegnies [1998] ECR I-5121, paragraph 33).
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9 Il convient de rappeler à titre liminaire qu' il découle de l' économie générale de la réglementation en matière de prélèvement supplémentaire sur le lait qu' une quantité de référence ne peut être attribuée à un exploitant agricole que dans la mesure ou celui-ci a la qualité de producteur . Par conséquent, afin de pouvoir donner une réponse utile aux questions posées, il convient de partir de la notion de producteur au sens de la réglementation en cause .
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33. It follows that questions on the interpretation of Community law referred by a national court, in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑300/01 Salzmann [2003] ECR I‑4899, paragraph 31, and Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 25). The presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought of Community law bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical or 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, Case C‑105/03 Pupino [2005] ECR I‑5285, paragraph 30, and Case C‑467/05 Dell’Orto [2007] ECR I‑5557, paragraph 40).
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25. As regards Mr Cipolla’s pleas of inadmissibility, it should be recalled that questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑300/01 Salzmann [2003] ECR I-4899, paragraphs 29 and 31). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 39, and Case C-466/04 Acereda Herrera [2006] ECR I-0000, paragraph 48).
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24 By annulling the contested decision for refusing to consider the arguments relating to Article 7(3) of Regulation No 40/94 and in doing so on that ground alone, the contested judgment allowed that part of the decision relating to the compatibility of BABY-DRY with the requirements of Article 7(1)(b) and (c) of the regulation to stand.
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19. According to settled case-law of the Court, for a measure to be categorised as ‘aid’ within the meaning of Article 107(1) TFEU, all the conditions set out in that provision must be fulfilled (see, to that effect, judgment in Commission v Deutsche Post , C‑399/08 P, EU:C:2010:481, paragraph 38 and the case-law cited).
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38. First of all, according to settled case-law, the classification as ‘aid’ within the meaning of Article 87(1) EC requires that all the conditions set out in that provision are fulfilled (Case C-142/87 Belgium v Commission [1990] ECR I-959 (‘ Tubemeuse ’), paragraph 25; Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I-4777, paragraph 125; and Case C-206/06 Essent Netwerk Noord and Others [2008] ECR I-5497, paragraph 63).
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20 As regards the aims of the Directive, it is clear from the recitals in the preamble thereto that it was adopted with the dual aim of ensuring both the creation of a common consumer credit market (recitals 3 to 5) and the protection of consumers who avail themselves of such credit (recitals 6, 7 and 9).
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83. Thus, in particular, the Court, in paragraphs 27 and 29 of the judgment in Commission v France (C‑239/03, EU:C:2004:598), considered the protection of waters against pollution — the subject-matter of the international agreement in question in the case which gave rise to that judgment — as an area, notwithstanding the fact that the relevant EU rules were contained in different legal instruments.
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29. Since the Convention and the Protocol thus create rights and obligations in a field covered in large measure by Community legislation, there is a Community interest in compliance by both the Community and its Member States with the commitments entered into under those instruments.
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23. S’agissant de la présente affaire, il importe de constater que, si la partie requérante a fait valoir, dans sa requête déposée devant le Tribunal, que la décision litigieuse était basée sur une appréciation erronée de sa part de marché, elle critiquait uniquement la différence de traitement qu’elle aurait subie par rapport aux autres entreprises membres de l’entente, dont elle soutenait qu’elles étaient placées dans la même situation qu’elle. En revanche, la partie requérante n’a pas soutenu dans ladite requête que la valeur de la consommation captive aurait dû être écartée des calculs relatifs aux chiffres d’affaires et aux parts de marché des entreprises impliquées dans l’entente. Ce n’était que dans le cadre de sa plaidoirie devant le Tribunal que SGL a abordé la question de la prise en compte de cet élément dans la détermination de son chiffre d’affaires et de sa part de marché.
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24. It should be added that, while the exercise of the activities of a trainee lawyer can take place in an employment relationship as in the case of the dispute in the main proceedings, it also constitutes the practical part of the training necessary for access to the regulated profession of lawyer (see, to that effect, Case C‑313/01 Morgenbesser [2003] ECR I‑13467, paragraph 51).
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51. However, it follows from those provisions that the pursuit of those activities is designed to constitute the practical part of the training necessary for access to the profession of " avvocato" . If, at the end of those six years, the praticante-patrocinante does not pass the examination prescribed by point 6 of the first paragraph of Article 17 of Decree-Law No 1578/33, he will no longer be authorised, under those provisions, to pursue the activities which he carried on in that capacity.
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30. In those circumstances, the answer to the first question must be that Articles 4(4)(a) and 5(2) of the Directive are to be interpreted as entitling the Member States to provide specific protection for registered trade marks with a reputation in cases where a later mark or sign, which is identical with or similar to the registered mark, is intended to be used or is used for goods or services identical with or similar to those covered by the registered mark.
The second question
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40. That is the position where a tax fraud is committed by the taxable person himself or when he knew, or should have known, that, by his purchase, he was taking part in a transaction connected with VAT fraud (see Bonik , paragraphs 38 and 39 and the case-law cited).
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39. By the same token, a taxable person who knew, or should have known, that, by his purchase, he was taking part in a transaction connected with VAT fraud must, for the purposes of Directive 2006/112, be regarded as a participant in that fraud, whether or not he profits from the resale of the goods or the use of the services in the context of the taxable transactions subsequently carried out by him (see, to that effect, Kittel and Recolta Recycling , paragraph 56, and Mahagében and Dávid , paragraph 46).
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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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21 The Court has consistently held (see, inter alia, Case 8/81 Becker [1982] ECR 53, paragraph 25; Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 29; and Joined Cases C-246/94 to C-249/94 Cooperativa Agricola Zootecnica S. Antonio and Others [1996] ECR I-4373, paragraph 17) that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by an individual against the State where that State has failed to implement the directive in national law by the end of the period prescribed or where it has failed to implement the directive correctly.
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25 THUS , WHEREVER THE PROVISIONS OF A DIRECTIVE APPEAR , AS FAR AS THEIR SUBJECT-MATTER IS CONCERNED , TO BE UNCONDITIONAL AND SUFFICIENTLY PRECISE , THOSE PROVISIONS MAY , IN THE ABSENCE OF IMPLEMENTING MEASURES ADOPTED WITHIN THE PRESCRIBED PERIOD , BE RELIED UPON AS AGAINST ANY NATIONAL PROVISION WHICH IS INCOMPATIBLE WITH THE DIRECTIVE OR IN SO FAR AS THE PROVISIONS DEFINE RIGHTS WHICH INDIVIDUALS ARE ABLE TO ASSERT AGAINST THE STATE .
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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17 Thus, as the Court has recognized on many occasions, the specific subject-matter of a trade mark is in particular to guarantee to the owner that he has the exclusive right to use that trade mark for the purpose of putting a product on the market for the first time and therefore to protect him against competitors wishing to take advantage of the status and reputation of the trade mark by selling products bearing it illegally (see Case 102/77 Hoffmann-La Roche v Centrafarm [1978] ECR 1139, paragraph 7; Case 1/81 Pfizer v Eurim-Pharm [1981] ECR 2913, paragraph 7; HAG II, paragraph 14; and IHT Internationale Heiztechnik, paragraph 33).
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7IN RELATION TO TRADE-MARKS , THE SPECIFIC SUBJECT-MATTER IS IN PARTICULAR TO GUARANTEE TO THE PROPRIETOR OF THE TRADE-MARK THAT HE HAS THE EXCLUSIVE RIGHT TO USE THAT TRADE-MARK FOR THE PURPOSE OF PUTTING A PRODUCT INTO CIRCULATION FOR THE FIRST TIME AND THEREFORE 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 . IN ORDER TO ANSWER THE QUESTION WHETHER THAT EXCLUSIVE RIGHT INVOLVES THE RIGHT TO PREVENT THE TRADE-MARK BEING AFFIXED BY A THIRD PERSON AFTER THE PRODUCT HAS BEEN REPACKAGED , REGARD MUST BE HAD TO THE ESSENTIAL FUNCTION OF THE TRADE-MARK , WHICH IS TO GUARANTEE THE IDENTITY OF THE ORIGIN OF THE TRADE-MARKED PRODUCT TO THE CONSUMER OR ULTIMATE USER , BY ENABLING HIM WITHOUT ANY POSSIBILITY OF CONFUSION TO DISTINGUISH THAT PRODUCT FROM PRODUCTS WHICH HAVE ANOTHER ORIGIN . THIS GUARANTEE OF ORIGIN MEANS THAT THE CONSUMER OR ULTIMATE USER CAN BE CERTAIN THAT A TRADE-MARKED PRODUCT WHICH IS SOLD TO HIM HAS NOT BEEN SUBJECT AT A PREVIOUS STAGE OF MARKETING TO INTERFERENCE BY A THIRD PERSON , WITHOUT THE AUTHORIZATION OF THE PROPRIETOR OF THE TRADE-MARK , SUCH AS TO AFFECT THE ORIGINAL CONDITION OF THE PRODUCT . THE RIGHT ATTRIBUTED TO THE PROPRIETOR OF PREVENTING ANY USE OF THE TRADE-MARK WHICH IS LIKELY TO IMPAIR THE GUARANTEE OF ORIGIN SO UNDERSTOOD IS THEREFORE PART OF THE SPECIFIC SUBJECT-MATTER OF THE TRADE-MARK RIGHT .
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40. It should be recalled that the principle of non-discrimination prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, Case C-212/05 Hartmann [2007] ECR I‑6303, paragraph 29).
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45. However, the Court has acknowledged that it is open to the institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature ( Sweden and Turco v Council , paragraph 50; Commission v Technische Glaswerke Ilmenau , paragraph 54; Sweden and Others v API and Commission , paragraph 74; Commission v Éditions Odile Jacob , paragraph 116; and Commission v Agrofert Holding , paragraph 57).
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74. Nevertheless, contrary to the assertions made by API, it is clear from the case-law of the Court of Justice that the institution concerned may base its decisions in that regard on general presumptions which apply to certain categories of document, as considerations of a generally similar kind are likely to apply to applications for disclosure which relate to documents of the same nature (see Sweden and Turco v Council , paragraph 50, and Commission v Technische Glaswerke Ilmenau , paragraph 54).
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35. Workers who have been unfairly dismissed are in a comparable situation in so far as they are entitled to compensation where they are not reinstated.
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33
In that regard, it should be noted that the Court has previously held that companies’ annual accounts can be used by Member States as a reference base for tax purposes (see, to that effect, judgment of 3 October 2013, GIMLE, C‑322/12, EU:C:2013:632, paragraph 28 and the case-law cited). It is stated in the orders for reference that, under Belgian law, failing any express derogation from the tax rules, taxable profits are determined in accordance with the accounting rules and that the relevant Belgian legislation does not contain any provision relating to the accounting method for the price of an option.
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28. In this respect, the Court has already stated that the Fourth Directive is not designed to lay down the conditions in which the annual accounts of companies may or must serve as a basis for the determination by the tax authorities of the Member States of the basis for assessment and the amount of taxes, such as the corporate tax at issue in the main proceedings. However, it is in no way excluded that annual accounts might be used by Member States as a reference base for tax purposes (Case C‑306/99 BIAO [2003] ECR I‑1, paragraph 70), and no provision of the Fourth Directive precludes Member States from correcting, for tax purposes, the effects of the accounting rules in that directive, in order to determine a taxable profit closer to the economic reality.
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62 FURTHER THE SAID FIXING OF MINIMUM QUANTITIES COULD FORCE SMALL ITALIAN PRODUCERS, WHO WERE ANXIOUS TO CONTINUE TO BE ABLE TO PARTICIPATE IN IMPORT OPERATIONS, TO COOPERATE WITH THEIR COUNTERPARTS WHO CARRY ON BUSINESS ON A LARGER SCALE .
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36. It follows from that provision that, where the objectives of Directive 85/337, including that of supplying information, are achieved through a legislative process, the directive does not apply to the project in question (see Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 51).
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51 It follows from that provision that, where the objectives of the Directive, including that of supplying information, are achieved through a legislative process, the Directive does not apply to the project in question.
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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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60. In the present case, the justification put forward by the Italian Republic relates to the need to ensure road safety, which, according to the case-law, constitutes an overriding reason relating to the public interest capable of justifying a hindrance to the free movement of goods (see, in particular, Case C‑55/93 van Schaik [1994] ECR I‑4837, paragraph 19; Case C‑314/98 Snellers [2000] ECR I‑8633, paragraph 55; Commission v Finland , paragraph 40, Commission v Netherlands , paragraph 77, Commission v Portugal , paragraph 38; and C‑170/07 Commission v Poland [2008] ECR I‑0000, paragraph 49).
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19 Regulations of that kind may be justified, however, by the requirements of road safety, which constitute overriding reasons relating to the public interest, within the meaning of the judgment in Gouda (see Case C-288/89 [1991] ECR I-4007, paragraphs 13 and 14).
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54 In particular, it is contrary to the first paragraph of Article 95 of the Treaty to levy a tax on imported used vehicles based on a value which is higher than the real value of the vehicle with the result that imported used vehicles are taxed more heavily than similar used vehicles which are on sale on the domestic market (see, to that effect, Commission v Denmark, paragraph 22). In taxing used vehicles, their actual depreciation must therefore be taken into account.
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35. The Court has held on numerous occasions that the Treaty provisions relating to freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude measures which might place Community nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Joined Cases 154/87 and 155/87 Wolf and Others [1988] ECR 3897, paragraph 13; Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 94; Terhoeve , paragraph 37; Case C‑190/98 Graf [2000] ECR I‑493, paragraph 21; and Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 25).
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37 The Court has also held that the Treaty provisions relating to freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude measures which might place Community nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Case 143/87 Stanton v INASTI [1988] ECR 3877, paragraph 13; Singh, cited above, paragraph 16; and Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman [1995] ECR I-4921, paragraph 94).
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46. Furthermore, it is common ground that the plans and programmes that the contested decree contains in principle fall within the scope of Article 3(2)(a) of Directive 2001/42 since they concern, in essence, town and country planning and land use.
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23. First of all, it should be recalled that, in paragraph 13 of Genius Holding , the Court found that the right to deduct may be exercised only in respect of taxes actually due, that is to say, the taxes corresponding to a transaction subject to VAT or paid in so far as they were due. It thus found that that right to deduct does not apply to VAT which is due, under Article 21(1)(c) of the Sixth Directive, solely because it is mentioned on the invoice (see, inter alia, Genius Holding , paragraph 19). In that regard, the Court subsequently upheld that case‑law in Case C‑454/98 Schmeink & Cofreth and Strobel [2000] ECR I‑6973, paragraph 53 and Joined Cases C‑78/02 to C‑80/02 Karageorgou and Others [2003] ECR I‑13295, paragraph 50).
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50. In that connection the Court has held that, in order to ensure VAT neutrality, it is for the Member States to provide in their internal legal systems for the possibility of correcting any tax improperly invoiced where the issuer of the invoice shows that he acted in good faith (Case C-342/87 Genius Holding [1989] ECR 4227, paragraph 18). However, where the issuer of the invoice has in sufficient time wholly eliminated the risk of any loss of tax revenues, VAT which has been improperly invoiced can be adjusted without such adjustment being made conditional upon the issuer of the relevant invoice having acted in good faith ( Schmeink & Cofreth and Strobel , cited above, paragraphs 60 and 63).
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72. Thirdly, it should be observed that there are certain densely populated areas which might be perceived by many pharmacists as very profitable, and consequently more attractive, such as those in urban areas. By contrast, other parts of the national territory might be considered to be less attractive, such as rural, geographically isolated or otherwise disadvantaged areas.
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32. Furthermore, it has been held that the fact that a national of a Member State who wishes to pursue a regulated profession chooses to take up that profession in his preferred Member State cannot of itself constitute an abuse of the general system of recognition laid down by Directive 89/48, and that the rights of nationals of a Member State to choose the Member State in which they wish to acquire their professional qualifications is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the EC Treaty (see Case C-286/06 Commission v Spain [2008] ECR I-0000, paragraph 72).
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72. In those circumstances, the fact that a national of a Member State who wishes to pursue a regulated profession chooses to take up that profession in his preferred Member State cannot of itself constitute an abuse of the general system of recognition laid down by Directive 89/48. The rights of nationals of a Member State to choose the Member State in which they wish to acquire their professional qualifications is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the EC Treaty.
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53. It must be recalled, in the first place, that the publication required by Article 44a of Regulation No 1290/2005 and Regulation No 259/2008 implementing that article identifies by name all beneficiaries of aid from the EAGF and the EAFRD, among whom are both natural and legal persons. Having regard to the observations in paragraph 52 above, legal persons can claim the protection of Articles 7 and 8 of the Charter in relation to such identification only in so far as the official title of the legal person identifies one or more natural persons.
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42 Consequently, so long as an E 101 certificate is not withdrawn or declared invalid, the competent institution of a Member State in which the self-employed person carries out a work assignment must take account of the fact that that person is already subject to the social security legislation of the Member State in which he is established, and that institution cannot therefore subject the self-employed person in question to its own social security system (Fitzwilliam Executive Search, paragraph 55).
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55 Consequently, as long as an E 101 certificate is not withdrawn or declared invalid, the competent institution of a Member State to which workers are posted must take account of the fact that those workers are already subject to the social security legislation of the State in which the undertaking employing them is established and that institution cannot therefore subject the workers in question to its own social security system.
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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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122
It is settled case-law that the need for the uniform application of an EU measure and, accordingly, for a uniform interpretation of that measure makes it impossible to consider one language version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim which the latter seeks to achieve, in the light, in particular, of all the versions of it (judgment in X, C‑486/12, EU:C:2013:836, paragraph 19 and the case-law cited).
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19. Toutefois, aux fins de son interprétation, l’article 12, sous a), de la directive 95/46 ne saurait être examiné dans la seule version en langue néerlandaise. En effet, conformément à une jurisprudence constante, la nécessité d’une application et, dès lors, d’une interprétation uniformes d’un acte de l’Union exclut que celui-ci soit considéré isolément dans une de ses versions, mais exige qu’il soit interprété en fonction tant de la volonté réelle de son auteur que du but poursuivi par ce dernier, à la lumière, notamment, des versions établies dans toutes les langues (voir, notamment, arrêts du 12 novembre 1969, Stauder, 29/69, Rec. p. 419, point 3; du 8 décembre 2005, Jyske Finans, C‑280/04, Rec. p. I‑10683, point 31, ainsi que du 7 juillet 2011, IMC Securities, C‑445/09, Rec. p. I‑5917, point 25).
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200 Accordingly, this complaint examined must be rejected.
(ii) The complaint that the Court of First Instance failed to consider the judicial proceedings prior to adoption of the PVC II decision from the standpoint of the principle that action must be taken within a reasonable time
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29. As regards proportionality, the Court recalls that, according the case-law of the Court, that principle requires that measures adopted by European Union institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question, it being understood that, when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑343/09 Afton Chemical [2010] ECR I‑7027, paragraph 45, and Joined Cases C‑581/10 and C‑629/10 Nelson and Others [2012] ECR I‑0000, paragraph 71 and Sky Österreich , paragraph 50).
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50. In so far as concerns the proportionality of the interference found to exist, the Court recalls that, according to settled case-law, the principle of proportionality requires that measures adopted by European Union institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C-343/09 Afton Chemical [2010] ECR I-7027, paragraph 45, and Joined Cases C-581/10 and C-629/10 Nelson and Others [2012] ECR, paragraph 71 and the case-law cited).
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27. Against the background of a wide interpretation various aspects of the directive demonstrate that the term database within the meaning thereof is more specifically defined in terms of its function.
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33. Article 18 EC, which sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 39 EC in relation to the freedom of movement for workers. To the extent that the national court is also seeking an interpretation from the Court of the latter provision, it is appropriate to deal first with that point (see, in that regard, Case C‑100/01 Oteiza Olazabal [2002] ECR I-10981, paragraph 26).
Article 42 EC
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26 Similarly, it should be noted that Article 8a of the Treaty, which sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 48 of the Treaty in relation to the free movement of workers. Since the facts with which the main proceedings are concerned fall within the scope of the latter provision, it is not necessary to rule on the interpretation of Article 8a of the Treaty (see, in relation to freedom of establishment, the judgment in Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929, paragraph 22).
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29. It follows that forfeiture of a part of the security equal to the difference between the amount of the refund paid in advance and the amount of the refund actually due, without any penalty being imposed, is commensurate with the objective pursued by the legislature.
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18 The Court has held in Case C-288/89 Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007, paragraphs 22 and 23, Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraphs 3, 29 and 30, and Case C-148/91 Veronica Omroep Organisatie v Commissariaat voor de Media [1993] ECR I-487, paragraph 9, that the Mediawet is intended to establish a pluralist and non-commercial radio and television broadcasting system and thus forms part of a cultural policy whose aim is to safeguard the freedom of expression in the audiovisual sector of the various components, in particular social, cultural, religious and philosophical ones, of the Netherlands.
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9 It must first be borne in mind that, as the Court held in its judgments in Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraphs 3, 29 and 30, and Case C-288/89 Stichting Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007, paragraphs 22 and 23, the Mediawet is designed to establish a pluralistic and non-commercial broadcasting system and thus forms part of a cultural policy intended to safeguard, in the audio-visual sector, the freedom of expression of the various (in particular social, cultural, religious and philosophical) components existing in the Netherlands.
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47. It follows from all of the foregoing that Article 17(6) of the Sixth Directive must be interpreted as precluding national legislation which excludes the right to deduct VAT paid by a taxable person to another taxable person, who has provided services, where the latter has not registered for the purposes of that tax.
Costs
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35 In that regard, the Court has repeatedly held that the concepts of `matters relating to a contract' and `matters relating to tort, delict or quasi-delict' in paragraphs 1 and 3 respectively of Article 5 of the Brussels Convention are to be interpreted independently, having regard primarily to the objectives and general scheme of that convention, in order to ensure that it is both given full effect and applied uniformly in all the Contracting States (see, in particular, Case 34/82 Peters [1983] ECR 987, paragraphs 9 and 10; Case 189/87 Kalfelis [1988] ECR 5565, paragraphs 15 and 16, and Case C-261/90 Reichert and Kockler [1992] ECR I-2149, paragraph 15).
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10 THEREFORE , AND AS THE COURT RULED ON SIMILAR GROUNDS IN RELATION TO THE WORDS ' ' THE OPERATION OF A BRANCH , AGENCY OR OTHER ESTABLISHMENT ' ' REFERRED TO IN ARTICLE 5 ( 5 ) OF THE CONVENTION ( JUDGMENT OF 22 . 11 . 1978 IN CASE 33/78 SOMAFER V SAAR-FERNGAS AG ( 1978 ) ECR 2183 ), THE CONCEPT OF MATTERS RELATING TO A CONTRACT SHOULD BE REGARDED AS AN INDEPENDENT CONCEPT WHICH , FOR THE PURPOSE OF THE APPLICATION OF THE CONVENTION , MUST BE INTERPRETED BY REFERENCE CHIEFLY TO THE SYSTEM AND OBJECTIVES OF THE CONVENTION , IN ORDER TO ENSURE THAT IT IS FULLY EFFECTIVE .
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48. The objective pursued by Directive 91/271 goes beyond the mere protection of aquatic ecosystems and seeks to conserve man, fauna, flora, soil, water, air and landscapes from any significant adverse effects of the accelerated growth of algae and higher forms of plant life that results from discharges of urban waste water ( Commission v France , paragraph 16).
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33
The Court has thus accepted that, given the practical difficulties which might arise when implementing such financing, Member States were free to finance that fair compensation by means of a levy imposed, prior to the making of private copies, on persons who have reproduction equipment, devices and media and make them available to natural persons (see, to that effect, judgments of 21 October 2010 in Padawan, C‑467/08, EU:C:2010:620, paragraph 46; 16 June 2011 in Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 27; 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 24; and 5 March 2015 in Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 46).
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46. In that regard, a private copying levy system may be justified, inter alia, by the need to address the fact that it is impossible to identify the final users or the practical difficulties associated with identifying those users or other similar difficulties (see, to that effect, Amazon.com International Sales and Others , EU:C:2013:515, paragraphs 31 and 34).
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35. As regards the argument that the French rules on television advertising have the result that television advertising for alcoholic beverages is authorised where the French audience is overall very high (multinational events), but prohibited where the French audience is not so high (bi-national events), it is sufficient to observe that by limiting the prohibition to indirect advertising broadcast during the retransmission of sporting events which specifically target a French audience and when the advertising is therefore capable of specifically targeting that audience alone, the rules can only make the measure less prejudicial to the freedom to provide services and, therefore, more proportionate to the objective pursued.
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59. Furthermore, as regards the safeguarding of the Member States’ prerogatives in respect of access to their employment market, it must be noted that posted workers do not aspire to access to the employment market of the Member State where they are posted (see Rush Portuguesa , paragraph 15; Vander Elst , paragraph 21; Finalarte and Others , paragraph 22, and Commission v Luxembourg , paragraph 38).
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38. It should in this regard be borne in mind that, although the desire to avoid disturbances on the labour market is undoubtedly an overriding reason of general interest (see, to that effect, Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 13), workers employed by an undertaking established in a Member State and who are deployed to another Member State for the purposes of providing services there do not purport to gain access to the labour market of that second State, as they return to their country of origin or residence after the completion of their work (see Rush Portuguesa , paragraph 15; Vander Elst , paragraph 21; and Finalarte , paragraph 22).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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43. According to settled case-law, Article 43 EC precludes any national measure which, even if applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Union nationals of the freedom of establishment that is guaranteed by the Treaty (see, to that effect, inter alia, Case C‑19/92 Kraus [1993] ECR I‑1663, paragraph 32; Gebhard , paragraph 37; Case C‑442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11; and Case C‑169/07 Hartlauer [2009] ECR I‑0000, paragraph 33 and the case-law cited).
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33. According to settled case-law, Article 43 EC precludes any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Community nationals of the freedom of establishment that is guaranteed by the Treaty (see, inter alia, Case C‑299/02 Commission v Netherlands [2004] ECR I‑9761, paragraph 15, and Case C‑140/03 Commission v Greece [2005] ECR I‑3177, paragraph 27).
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45. It follows that the concept of ‘due cause’ may not only include objectively overriding reasons but may also relate to the subjective interests of a third party using a sign which is identical or similar to the mark with a reputation.
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56. It ought to be borne in mind that, in accordance with the Court ' s settled case-law, the scope of Article 30 does not include provisions of the Treaty relating to charges having effect equivalent to customs duties (Article 12 of the Treaty and Article 16 of the EC Treaty, repealed by the Treaty of Amsterdam) or relating to discriminatory internal taxation (Article 95 of the Treaty) (see inter alia, to this effect, Case 74/76 Iannelli & Volpi [1977] ECR 557, paragraph 9; Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l ' Ouest and Others [1992] ECR I-1847), paragraph 20, and Lornoy and Others , paragraph 14).
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20 The Court has consistently held (see, in particular, the judgment in Case 74/76 Ianelli and Volpi [1977] ECR 557) that the scope of Article 30 does not extend to the obstacles covered by other, specific provisions of the Treaty and that the obstacles which are of a fiscal nature or have an effect equivalent to customs duties and are covered by Articles 9 to 16 and 95 of the Treaty do not fall within the prohibition laid down in Article 30.
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35. An amendment to a public contract during its currency may be regarded as being material when it introduces conditions which, had they been part of the initial award procedure, would have allowed for the admission of tenderers other than those initially admitted or would have allowed for the acceptance of a tender other than the one initially accepted.
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41. The Explanatory Notes to the CN and those to the HS are an important aid for interpreting the scope of the various tariff headings but do not have legally binding force. The wording of those Notes must therefore be consistent with the provisions of the CN and cannot alter their scope (see, in particular, Case C‑130/02 Krings [2004] ECR I-2121, paragraph 28, Case C-467/03 Ikegami [2005] ECR I-2389, paragraph 17, and Proxxon paragraph 22).
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28. It is settled case-law that, in the interests of legal certainty and for 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. The Explanatory Notes drawn up, as regards the CN, by the Commission and, as regards the Harmonised System, by the Customs Cooperation Council may be an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see VOBIS Microcomputer , cited above, paragraph 13; Case C-405/97 Mövenpick Deutschland [1999] ECR I-2397, paragraph 18, and Holz Geenen , cited above, paragraph 14).
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44. As regard dividends paid to a parent company resident in a Member State by a company resident in another Member State in which that parent company holds a minimum of 25% of the capital, Article 4(1) of Directive 90/435 expressly leaves it open to Member States to choose between an exemption system and an imputation system. The directive provides that where such a parent company receives distributed profits from its subsidiary, the State of the parent company is, except when the latter is liquidated, either to refrain from taxing such profits or to tax them while authorising that company to deduct from the amount of tax due that fraction of the corporation tax paid by the subsidiary which relates to those profits and, if appropriate, the amount of the withholding tax levied by the Member State in which the subsidiary is resident, up to the limit of the amount of the corresponding domestic tax.
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46. As the Court has already held, overriding reasons in the public interest capable of justifying a restriction on the exercise of freedom of movement guaranteed by the Treaty include both the need to guarantee the effectiveness of fiscal supervision (see, to that effect, judgments in C‑101/05 A , EU:C:2007:804, paragraph 55; C‑155/08 and C‑157/08 X-van Schoot and Passenheim , EU:C:2009:368, paragraph 55; C‑262/09 Meilicke , EU:C:2011:438, paragraph 41, and C‑318/10 SIAT , EU:C:2012:415, paragraph 36) and the need to ensure effective collection of tax (see, to that effect, judgments in C‑269/09 Commission v Spain EU:C:2012:439, paragraph 64; C‑498/10 X , EU:C:2012:635, paragraph 39, and C‑53/13 and C‑80/13 Strojírny Prostějov et ACO Industries Tábor , EU:C:2014:2011, paragraph 46).
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46. It should be noted, in that respect, that the Court has already recognised that the need to ensure the effective collection of income tax may constitute an overriding reason in the public interest capable of justifying a restriction on the freedom to provide services ( FKP Scorpio Konzertproduktionen , EU:C:2006:630, paragraph 35, and X , EU:C:2012:635, paragraph 39).
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36. By defining the action of ‘discarding’ a substance or an object solely by reference to the putting in train of a disposal or recovery operation mentioned in Annexes II A and II B to Directive 75/442, that construction makes the characterisation as ‘waste’ depend on an operation which cannot itself be described as disposal or recovery unless it applies to ‘waste’. Consequently, that construction does not clarify the meaning of ‘waste’.
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69. Nor can such a reassessment and recovery practice be justified under Article 17(6) and (7) of the Sixth Directive. Those two provisions are not applicable to a situation such as that at issue in the cases in the main proceedings, since they govern the existence of the right to deduct itself and not the procedure for exercising it. Moreover, Article 17(6) applies only to expenditure which is not strictly business expenditure, such as luxuries, amusements or entertainment, whereas it is common ground that no such expenditure is involved in the cases in the main proceedings. As to the possibility open to the Member States under Article 17(7), it need merely be pointed out that they cannot avail themselves of it unless they have first used the consultation procedure provided for in Article 29 (see, to that effect, Case C‑409/99 Metropol and Stadler [2002] ECR I‑81, paragraphs 61 to 63, and Case C‑228/05 Stradasfalti [2006] ECR I‑8391, paragraph 29), which, according to the file, is not the case in the Italian Republic.
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62 Article 17(7) of the Sixth Directive thus lays down a procedural obligation which the Member States must observe in order to be able to make use of the derogation it sets out (see, by analogy, with respect to Article 27(5) of the Sixth Directive, which also provides for derogations from the scheme of the directive, Case 324/82 Commission v Belgium [1984] ECR 1861, paragraph 28).
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14 Il s' ensuit que la quantité de lait ou de produits laitiers qui a été vendue ou livrée par un preneur à bail et qui correspond à la production laitière réalisée par lui dans les installations louées doit, en principe, être imputée sur la quantité de référence de ce preneur, sans qu' il importe de savoir si le bailleur est, lui aussi, un producteur de lait et dispose en cette qualité d' une quantité de référence .
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49. As regards the second part of that ground of appeal, alleging distortion of the facts, it should be noted at the outset that, under Article 225(1) EC and the first subparagraph of Article 58 of the Statute of the Court of Justice, an appeal lies on a point of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, Case C‑104/00 P DKV v OHIM [2002] ECR I‑7561, paragraph 22; Case C‑173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I‑551, paragraph 35; and the judgment of 26 March 2009 in Case C‑21/08 P Sunplus Technology v OHIM , paragraph 31).
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22 Second, it should be pointed out that the actual application by the Court of First Instance of that criterion to this case, as challenged by DKV, involves findings of a factual nature. As the Advocate General has pointed out at point 58 et seq. of his Opinion, the Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence before it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgment in Joined Cases C-280/99 P to C-282/99 P Moccia Irme and Others v Commission [2001] ECR I-4717, paragraph 78 and order in Case C-323/00 P DSG v Commission [2002] ECR I-0000, paragraph 34).
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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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51 It must, however, also be borne in mind that, according to settled case-law, a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties (see Case 270/80 Polydor and RSO Records [1982] ECR 329, paragraphs 14 to 21; Case 104/81 Kupferberg [1982] ECR 3641, paragraphs 29 to 31; Case C-312/91 Metalsa [1993] ECR I-3751, paragraphs 11 to 20).
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19 Consequently, the interpretation of Article 95 of the Treaty laid down by the Court in Drexl cannot be extended to the first paragraph of Article 18 of the free trade agreement concluded between the Community and Austria.
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31. Thus, Member States cannot, in principle, apply different charges to competing operators for the use of scarce resources whose values appear to be equivalent in economic terms (see, to that effect ISIS Multimedia Net and Firma O2 , paragraphs 40 and 41).
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67
However, it is only in circumstances where the action for annulment would unquestionably have been admissible that the Court has held that a person may not plead the invalidity of an act of the European Union before a national court (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraphs 17 to 25; of 30 January 1997, Wiljo, C‑178/95, EU:C:1997:46, paragraphs 15 to 25; of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 29 to 40; and of 22 October 2002, National Farmers’ Union, C‑241/01, EU:C:2002:604, paragraphs 34 to 39). In numerous other cases, the Court has held that it was not established that the action would unquestionably have been admissible (see, inter alia, to that effect, judgments of 23 February 2006, Atzeni and Others, C‑346/03 and C‑529/03, EU:C:2006:130, paragraphs 30 to 34; of 8 March 2007, Roquette Frères, C‑441/05, EU:C:2007:150, paragraphs 35 to 48; of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraphs 37 to 52; of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 24 to 38; and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraphs 27 to 32).
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35. By its first question, the national court asks essentially whether a natural or legal person such as Roquette, in factual and legal circumstances such as those of the main proceedings, could undoubtedly have brought an admissible action, on the basis of Article 230 EC, to annul the provisions referred to in the question (‘the contested provisions’).
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105. It has already been noted in paragraphs 83 to 85 above that, for the purposes of applying the private investor test, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision to make the investment was taken. That is especially so where, as in the present case, the Commission is seeking to determine whether there has been State aid in relation to an investment which was not notified to it and which, at the time when the Commission carries out its examination, has already been made by the Member State concerned.
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90. The definition of aid is thus more general than that of a subsidy because it includes not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect ( Steenkolenmijnen v High Authority , p. 19; Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 13; Ecotrade , paragraph 34; Case C-143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] ECR I‑8365, paragraph 38; and Case C-5/01 Belgium v Commission , paragraph 32).
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34 As the Court has already held, the concept of aid is wider than that of a subsidy because it embraces not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 19, and Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, paragraph 13).
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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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25. In any event, even if a link were to exist under Luxembourg law between the tax advantage and the taxation of dividends, it must be held that the effect of the Double Taxation Convention concluded by the Grand Duchy of Luxembourg with the Kingdom of Belgium is to shift fiscal cohesion to the level of the reciprocity of the rules applicable in the Contracting States (see, inter alia, Wielockx , paragraph 24, and X and Y , paragraph 53). The Convention in question creates a fiscal reciprocity, insasmuch as in forgoing 15% of the net amount of dividends paid by companies established in Belgium to individuals subject to Luxembourg income tax, the Grand Duchy of Luxembourg may in return receive 15% of the dividends paid by companies having their seat in that Member State to individuals sub ject to income tax in Belgium.
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24 As the Advocate General observed in point 54 of his Opinion, the effect of double-taxation conventions which, like the one referred to above, follow the OECD model is that the State taxes all pensions received by residents in its territory, whatever the State in which the contributions were paid, but, conversely, waives the right to tax pensions received abroad even if they derive from contributions paid in its territory which it treated as deductible. Fiscal cohesion has not therefore been established in relation to one and the same person by a strict correlation between the deductibility of contributions and the taxation of pensions but is shifted to another level, that of the reciprocity of the rules applicable in the Contracting States.
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32. In that regard, it should be borne in mind that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, the relevance of the questions which it submits to the Court (see, in particular, Case C‑138/08 Hochtief and Linde-Kca-Dresden [2009] ECR I‑0000, paragraph 20 and the case-law cited).
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101. As regards the argument relied on in support of the fifth ground of appeal, it should be observed that the General Court pointed out, at paragraph 301 of the judgment under appeal, that, on the basis of the Commission’s estimates, the aid at issue amounted to between EUR 798 million and EUR 1 140 million. Since those figures delimit the range within which the final amount was to be established, the General Court found, referring in particular to paragraphs 31 to 40 of Commission v France, that the contested decision contained the appropriate information to enable that amount to be determined without too much difficulty.
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33. It follows that the amount of EUR 798 million must be considered to be the minimum aid amount to be recovered in accordance with Article 2 of the decision in question. The operative part of a decision relating to State aid is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (see, in particular, Case C-355/95 P TWD v Commission [1997] ECR I-2549, paragraph 21).
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56. It is necessary, therefore, to examine whether legislation such as that at issue in the main proceedings is appropriate for securing the objectives stated, namely, security of the system and consumer protection.
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14 Those provisions are sufficiently precise and unconditional to enable the national court to determine whether or not a person should be regarded as a person intended to benefit under the directive. A national court need only verify whether the person concerned is an employed person under national law and whether he is excluded from the scope of the directive in accordance with Article 1(2) and Annex 1 (as to the necessary conditions for such exclusion, see the judgments in Case 22/87 Commission v Italy, cited above, paragraphs 18 to 23, and Case C-53/88 Commission v Greece [1990] ECR I-3917, paragraphs 11 to 26), and then ascertain whether one of the situations of insolvency provided for in Article 2 of the directive exists.
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18 It must also be noted that the possibility of excluding certain categories of worker from the scope of the directive, by reason of the particular nature of their contract of employment, their employment relationship or the existence of guarantees of other kinds providing them with equivalent protection is a possibility provided for by way of exception by Article 1(2 ) of the directive and is limited by that provision itself to the categories expressly mentioned in the list annexed to the directive . In the case of Italy, that list does not provide for the exclusion of any category of workers for any of the reasons indicated above .
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68. In this connection, it must be stated that — contrary to the contentions of the Kingdom of Spain, the Federal Republic of Germany, the Kingdom of the Netherlands and the Portuguese Republic — the cooperation mechanisms existing at EU level between the authorities of the Member States are sufficient to enable the Member State of origin to recover the tax debt in another Member State (see, to that effect, National Grid Indus , paragraph 78).
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32 The Court has already declared in the judgment in Case 143/78 De Cavel v De Cavel [1979] ECR 1055, at paragraph 8, that as provisional or protective measures may serve to safeguard a variety of rights, their inclusion in the scope of the Convention is determined not by their own nature but by the nature of the rights which they serve to protect. It added, in paragraph 9 of that judgment, that the provisions of Article 24 of the Convention cannot be relied upon to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded therefrom.
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8THE FOREGOING CONSIDERATIONS ARE APPLICABLE TO MEASURES RELATING TO THE PROPERTY OF SPOUSES WHETHER THEY ARE PROVISIONAL OR DEFINITIVE IN NATURE .
AS PROVISIONAL PROTECTIVE MEASURES RELATING TO PROPERTY - SUCH AS THE AFFIXING OF SEALS OR THE FREEZING OF ASSETS - CAN SERVE TO SAFEGUARD A VARIETY OF RIGHTS , THEIR INCLUSION IN THE SCOPE OF THE CONVENTION IS DETERMINED NOT BY THEIR OWN NATURE BUT BY THE NATURE OF THE RIGHTS WHICH THEY SERVE TO PROTECT .
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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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30. In that connection, it is immaterial whether or not the Christmas bonus is financed in the same manner as the pension itself, as such a requirement would be contrary to Article 3(2) of Regulation No 883/2004, would considerably undermine the effectiveness of that regulation, and also cannot be inferred from the judgment in Noteboom (C‑101/04, EU:C:2005:51, paragraph 27) because the use of the adverb ‘moreover’ to indicate the appropriate mode of financing for the benefits concerned indicates that that element was not indispensable to the Court’s reasoning.
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27. Firstly, it is clear from the provisions relating to the grant of the holiday pay that it is paid exclusively to persons entitled to a retirement and/or survivor’s pension. Moreover, the national court has observed that the pensioners’ holiday pay is financed by the same resources that are used to finance the retirement and survivor’s pensions.
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60. Admittedly, a VAT identification number provides proof of the tax status of the taxable person for the purposes of the application of VAT and facilitates the tax audit of intra-Community transactions. However, it constitutes a formal requirement which cannot undermine the right of exemption from VAT where the substantive conditions for an intra-Community supply are satisfied (see, by analogy, in relation to the right of deduction, Case C-385/09 Nidera Handelscompagnie [2010] ECR I-10385, paragraph 50, and Case C-438/09 Dankowski [2010] ECR I-14009, paragraphs 33 and 47).
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26 Secondly, when the Commission refuses to charge certain expenditure to the EAGGF on the ground that it was incurred as a result of breaches of Community rules attributable to a Member State, it is for that State to show that the conditions for obtaining the financing disallowed are fulfilled (see, in particular, United Kingdom v Commission, cited above, paragraph 14).
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14 FINALLY, IT MUST BE POINTED OUT ( SEE IN PARTICULAR THE JUDGMENT OF THE COURT OF 12 JULY 1984 IN CASE 49/83 LUXEMBOURG V COMMISSION (( 1984 )) ECR 2931 ) THAT WHEN THE COMMISSION REFUSES TO CHARGE CERTAIN EXPENDITURE TO THE EAGGF ON THE GROUND THAT IT WAS INCURRED AS A RESULT OF BREACHES OF COMMUNITY RULES IMPUTABLE TO A MEMBER STATE, IT IS FOR THAT STATE TO SHOW THAT THE CONDITIONS FOR OBTAINING THE FINANCING REFUSED BY THE COMMISSION ARE FULFILLED .
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22. In order to consider those questions it is necessary as a preliminary matter to determine whether a colour per se is capable of constituting a trade mark for the purposes of Article 2 of the Directive.
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26. Under Article 17(2)(a) of the Sixth Directive, where a taxable person supplies goods or services to another taxable person who uses them for an exempt transaction pursuant to Article 13A of the directive, the latter person is not, as a rule, entitled to deduct the input VAT paid as, in such a case, the goods and services concerned are not used for taxable transactions (see, to that effect, Case 8/81 Becker [1982] ECR 53, paragraph 44, and Case C-302/93 Debouche [1996] ECR I-4495, paragraph 16).
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44 IN THAT REGARD IT SHOULD BE POINTED OUT THAT THE SCHEME OF THE DIRECTIVE IS SUCH THAT ON THE ONE HAND BY AVAILING THEMSELVES OF AN EXEMPTION PERSONS ENTITLED THERETO NECESSARILY WAIVE THE RIGHT TO CLAIM A DEDUCTION IN RESPECT OF INPUT AND ON THE OTHER HAND , HAVING BEEN EXEMPTED FROM THE TAX , THEY ARE UNABLE TO PASS ON ANY CHARGE WHATSOEVER TO THE PERSON FOLLOWING THEM IN THE CHAIN OF SUPPLY , WITH THE RESULT THAT THE RIGHTS OF THIRD PARTIES IN PRINCIPLE CANNOT BE AFFECTED .
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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25. It must be recalled, as all the parties which lodged observations before the Court have done, that, disregarding Article 46 EC, the national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must, according to settled case-law, fulfil four conditions in order to comply with Article 43 EC and Article 49 EC: they must be applied in a non-discriminatory manner, they must be justified by imperative requirements in the general interest, they must be suitable for securing the attainment of the objective which they pursue, and they must not go beyond what is necessary in order to attain it (see Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37; and Case C-243/01 Gambelli and Others [2003] ECR I-13031, paragraphs 64 and 65).
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65. According to those decisions, the restrictions must be justified by imperative requirements in the general interest, be suitable for achieving the objective which they pursue and not go beyond what is necessary in order to attain it. They must in any event be applied without discrimination.
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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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29. Finally, a Member State thus unquestionably has the power to define both the connecting factor required of a company if it is to be regarded as incorporated under its national law and as such capable of enjoying the right of establishment, and the connecting factor required if the company is to be able subsequently to maintain that status ( Cartesio , paragraph 110, and National Grid Indus , paragraph 27).
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110. Thus a Member State has the power to define both the connecting factor required of a company if it is to be regarded as incorporated under the law of that Member State and, as such, capable of enjoying the right of establishment, and that required if the company is to be able subsequently to maintain that status. That power includes the possibility for that Member State not to permit a company governed by its law to retain that status if the company intends to reorganise itself in another Member State by moving its seat to the territory of the latter, thereby breaking the connecting factor required under the national law of the Member State of incorporation.
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112. In order for the storage by a referencing service provider to come within the scope of Article 14 of Directive 2000/31, it is further necessary that the conduct of that service provider should be limited to that of an ‘intermediary service provider’ within the meaning intended by the legislature in the context of Section 4 of that directive.
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38
In its defence, the United Kingdom contests the main complaint put forward by the Commission by relying, in particular, on the judgment of 19 September 2013 in Brey (C‑140/12, EU:C:2013:565, point 44), in which the Court, after rejecting arguments identical to those which the Commission puts forward in the present instance, held that ‘there is nothing to prevent, in principle, the granting of social security benefits to Union citizens who are not economically active being made conditional upon those citizens meeting the necessary requirements for obtaining a legal right of residence in the host Member State’.
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44. The Court has consistently held that there is nothing to prevent, in principle, the granting of social security benefits to Union citizens who are not economically active being made conditional upon those citizens meeting the necessary requirements for obtaining a legal right of residence in the host Member State (see, to that effect, Case C‑85/96 Martínez Sala [1998] ECR I‑2691, paragraphs 61 to 63; Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraphs 32 and 33; Case C‑456/02 Trojani [2004] ECR I‑7573, paragraphs 42 and 43; Case C‑209/03 Bidar [2005] ECR I‑2119, paragraph 37; and Case C‑158/07 Förster [2008] ECR I‑8507, paragraph 39).
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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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32. It must be observed that, having regard to the principle of equal treatment, that directive recognises the legitimacy of both the protection of a woman’s biological condition during and after pregnancy and the protection of the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see Case 184/83 Hofmann [1984] ECR 3047, paragraph 25, and Case C-342/01 Merino Gómez [2004] ECR I-0000, paragraph 32).
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25 IT SHOULD FURTHER BE ADDED , WITH PARTICULAR REFERENCE TO PARAGRAPH ( 3 ), THAT , BY RESERVING TO MEMBER STATES THE RIGHT TO RETAIN , OR INTRODUCE PROVISIONS WHICH ARE INTENDED TO PROTECT WOMEN IN CONNECTION WITH ' ' PREGNANCY AND MATERNITY ' ' , THE DIRECTIVE RECOGNIZES THE LEGITIMACY , IN TERMS OF THE PRINCIPLE OF EQUAL TREATMENT , OF PROTECTING A WOMAN ' S NEEDS IN TWO RESPECTS . FIRST , IT IS LEGITIMATE TO ENSURE THE PROTECTION OF A WOMAN ' S BIOLOGICAL CONDITION DURING PREGNANCY AND THEREAFTER UNTIL SUCH TIME AS HER PHYSIOLOGICAL AND MENTAL FUNCTIONS HAVE RETURNED TO NORMAL AFTER CHILDBIRTH ; SECONDLY , IT IS LEGITIMATE TO PROTECT THE SPECIAL RELATIONSHIP BETWEEN A WOMAN AND HER CHILD OVER THE PERIOD WHICH FOLLOWS PREGNANCY AND CHILDBIRTH , BY PREVENTING THAT RELATIONSHIP FROM BEING DISTURBED BY THE MULTIPLE BURDENS WHICH WOULD RESULT FROM THE SIMULTANEOUS PURSUIT OF EMPLOYMENT .
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Ensuite, il convient de rappeler que l’obligation de motiver les arrêts résulte de l’article 36 du statut de la Cour de justice de l’Union européenne, rendu applicable au Tribunal en vertu de l’article 53, premier alinéa, du même statut, et de l’article 81 du règlement de procédure du Tribunal, dans sa version applicable en l’espèce. Selon une jurisprudence constante, la motivation d’un arrêt du Tribunal doit faire apparaître de façon claire et non équivoque le raisonnement de celui-ci, de manière à permettre aux intéressés de connaître les justifications de la décision prise et à la Cour d’exercer son contrôle juridictionnel (arrêt du 11 avril 2013, Mindo/Commission, C‑652/11 P, EU:C:2013:229, point 29).
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65 That interpretation is also confirmed by settled case-law of the Court (see Kziber, cited above, paragraphs 15 to 23, confirmed by Case C-58/93 Yousfi [1994] ECR I-1353, paragraphs 16 to 19; Case C-103/94 Krid [1995] ECR I-719, paragraphs 21 to 24; Case C-126/95 Hallouzi-Choho v Bestuur van de Sociale Verzekeringsbank [1996] ECR I-4807, paragraphs 19 and 20; and Case C-113/97 Babahenini [1998] ECR I-183, paragraphs 17 and 18) relating to the principle of equal treatment contained in Article 39(1) of the Cooperation Agreement between the European Economic Community and the People's Democratic Republic of Algeria, signed in Algiers on 26 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2210/78 of 26 September 1978 (OJ 1978 L 263, p. 1) and to Article 41(1) of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 26 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2211/78 (OJ 1978 L 264, p. 1).
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23 Article 39(1) of the Cooperation Agreement between the EEC and Algeria is drafted in the same terms as Article 41(1) of the Cooperation Agreement between the EEC and Morocco, and the two agreements pursue the same object.
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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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41. However, the Court has already held that the principle of legal certainty does not preclude a practice of the national tax authorities whereby, within a limitation period, they revoke a decision by which they granted the taxable person the right to deduct VAT and subsequently, following a fresh investigation, order him to pay that tax together with default interest (see, to that effect, judgment in Fatorie , C‑424/12, EU:C:2014:50, paragraphs 51).
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47. In this connection, in its written observations the Romanian Government refers to Article 105(3) of Government Order No 92/2003 on the Tax Procedure Code which allows, in exceptional circumstances, before the expiry of the limitation period, a new investigation to be carried out concerning a particular period where additional information unknown to the tax investigators at the date of the investigation or errors in calculation having an effect on the results of that investigation come to light.
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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
With reference to the line of authority established by the judgments of 12 December 2006 in Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774, paragraph 162); of 18 March 2010 in Gielen (C‑440/08, EU:C:2010:148, paragraph 53); and of 28 February 2013 in Beker (C‑168/11, EU:C:2013:117, paragraph 62), the referring court takes the view that, while the Court has not yet ruled on that point, it has nonetheless held that a national law that is optional may be contrary to EU law. Consequently, that court considers it likely that the adoption of Paragraph 2(3) of the ErbStG is not capable of remedying the incompatibility of Paragraph 16(2) of the ErbStG with EU law on the ground, in particular, that that latter provision is automatically applied in the absence of an application by the taxable person.
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62. Even if such a system were compatible with European Union law, according to the case-law the fact that a national scheme which restricts the freedoms of movement is optional does not mean that it is not incompatible with Community law (see, to that effect, Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 162, and Case C-440/08 Gielen [2010] ECR I-2323, paragraph 53). The existence of an option which would possibly render a situation compatible with European Union law does not, in itself, correct the illegal nature of a system, such as the system provided for by the contested rules, which comprises a mechanism of taxation not compatible with that law. It should be added that this is even more so in the situation where, as in the present case, the mechanism incompatible with European Union law is one which is automatically applied where the taxpayer fails to make a choice.
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44. That rule is linked to the sovereignty of the executing Member State and confers on the person requested the right not to be prosecuted, sentenced or otherwise deprived of liberty except for the offence for which he or she was surrendered.
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57. It is settled case-law that Article 54 of the CISA has the objective of ensuring that no one is prosecuted for the same acts in several Contracting States on account of the fact that he exercises his right to freedom of movement (see Joined Cases C‑187/01 and C-385/01 Gözütok and Brügge [2003] ECR I-1345, paragraph 38).
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38. Article 54 of the CISA, the objective of which is to ensure that no one is prosecuted on the same facts in several Member States on account of his having exercised his right to freedom of movement, cannot play a useful role in bringing about the full attainment of that objective unless it also applies to decisions definitively discontinuing prosecutions in a Member State, even where such decisions are adopted without the involvement of a court and do not take the form of a judicial decision.
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25
In principle, such a system, as already stated in paragraph 22 of the present judgment, enables the persons responsible for payment to pass on the amount of that levy in the sale price of those media, so that the burden of the levy is ultimately borne, in accordance with the requirement of a ‘fair balance’, by the private user who pays that price, if such a user is the final recipient (see judgment of 11 July 2013 in Amazon.com International Sales and Others, C‑521/11, EU:C:2013:515, paragraph 27).
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29 Concerning the second limb of the Commission's second complaint, it should be recalled that, although many purification plans limited to the regional level may in principle constitute a plan within the meaning of Article 4(2) of the Directive, the sum of the documents submitted by a Member State must in any event reveal an overall plan that reflects a comprehensive and coherent approach (see, to that effect, Case C-58/89 Commission v Germany [1991] ECR I-4983, paragraph 25; Case C-207/97 Commission v Belgium [1999] ECR I-275, paragraph 40).
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40 What is specific to the programmes in question is the fact that they must embody a comprehensive and coherent approach, covering the entire national territory of each Member State and providing practical and coordinated arrangements for the reduction of pollution caused by any of the substances in List II which is relevant in the particular context of the Member State concerned, in accordance with the quality objectives fixed by those programmes for the waters affected. They differ, therefore, both from general purification programmes and from bundles of ad hoc measures designed to reduce water pollution.
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26. The Court considers that, as the Commission of the European Communities has correctly argued, the principle that the burden of proving entitlement to a tax derogation or exemption rests upon the person seeking to benefit from such a right is to be viewed as being within the limits imposed by Community law. Thus, for the purpose of applying the first subparagraph of Article 28c(A)(a) of the Sixth Directive, it is for the supplier of the goods to furnish the proof that the conditions for exemption referred to in paragraph 23 of this judgment are fulfilled.
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51. In this respect, it should be recalled that, whilst contracts of indefinite duration are the general form of employment relationship, the Framework Agreement itself recognises, as is apparent from the second and third paragraphs in its preamble and from paragraphs 8 and 10 of its general considerations, that fixed-term contracts are a feature of employment in certain sectors or in respect of certain occupations or activities (see, to that effect, Adeneler and Others , paragraph 61; Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 86; and Case C‑157/11 Sibilio [2012] ECR, paragraph 38).
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38. À cet égard, il convient de rappeler que l’accord-cadre part de la prémisse selon laquelle les contrats de travail à durée indéterminée constituent la forme générale des relations de travail, tout en reconnaissant que les contrats de travail à durée déterminée sont une caractéristique de l’emploi dans certains secteurs ou pour certaines occupations et activités (voir points 6 et 8 des considérations générales de l’accord-cadre ainsi que arrêt du 4 juillet 2006, Adeneler e.a., C‑212/04, Rec. p. I‑6057, point 61).
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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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37. In that regard, it is clear from the case-law of the Court that, if the purpose of a formality imposed on the importer of a product subject to a national tax is to ensure payment of the debt corresponding to that tax, such a formality is related to the event giving rise to the tax, namely an intra-Community acquisition, and not to the crossing of a frontier in the sense of that provision (see, to that effect, judgments in Brzeziński , EU:C:2007:33, paragraphs 47 and 48, and Kalinchev , EU:C:2010:312, paragraph 27).
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47. It is for the national court to ascertain whether the legislation as a whole at issue in the main proceedings may be interpreted in the sense advocated by the Polish Government. Although the simplified declaration must be submitted at the time of the intra-Community acquisition of the vehicle, and thus at the time of crossing a border, that formality relates not to that crossing for the purposes of the first subparagraph of Article 3(3) of Directive 92/12, but to the obligation to settle the excise duty.
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80. It is the Member State which is best placed to collect and verify the data required for the clearance of EAGGF accounts (judgment in Greece v Commission , EU:C:2005:103, paragraph 36).
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39 To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court's jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance (see Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, and the order in Case C-422/97 P Sateba v Commission [1998] ECR I-4913, paragraph 30).
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59 To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court' s jurisdiction is thus confined to review of the findings of law on the pleas argued before the Court of First Instance.
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17. Directive 2003/88 treats entitlement to annual leave and to a payment on that account as being two aspects of a single right. The purpose of providing payment for that leave is to put the worker, during such leave, in a position which is, as regards his salary, comparable to periods of work (see Robinson-Steele and Others EU:C:2006:177, paragraph 58, and Schultz-Hoff and Others EU:C:2009:18, paragraph 60).
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26. It must also be borne in mind that, according to the fundamental principle which underlies the VAT system and which follows in particular from Article 2 of the Sixth Directive, VAT applies to each transaction by way of production or distribution after deduction has been made of the VAT which has been levied directly on transactions relating to inputs. It is settled case-law that the right of deduction provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and in principle may not be limited. That right must be exercised immediately in respect of all the taxes charged on input transactions. Any limitation on the right to deduct VAT affects the level of the tax burden and must be applied in a similar manner in all the Member States. Consequently, derogations are permitted only in the cases expressly provided for in the Sixth Directive (see, to that effect, Case C‑409/99 Metropol and Stadler [2002] ECR I‑81, paragraph 42 and the case-law cited). Furthermore, provisions laying down derogations from the principle of the right to deduct VAT, which ensures the neutrality of that tax, must be interpreted strictly ( Metropol and Stadler , paragraph 59).
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42 Second, according to the fundamental principle which underlies the VAT system and which follows from Article 2 of the First and Sixth Directives, VAT applies to each transaction by way of production or distribution after deduction has been made of the VAT which has been levied directly on transactions relating to inputs. It is settled case-law that the right of deduction provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and in principle may not be limited. That right must be exercised immediately in respect of all the taxes charged on input transactions. Any limitation on the right to deduct VAT affects the level of the tax burden and must be applied in a similar manner in all the Member States. Consequently, derogations are permitted only in the cases expressly provided for in the Sixth Directive (see, inter alia, Joined Cases C-177/99 and C-181/99 Ampafrance and Sanofi [2000] ECR I-7013, paragraph 34 and the case-law cited therein).
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26. That particular intended use, which is inherent in the objective characteristics of the components with which the machine in question in the main proceedings is equipped, supports the argument that the machine fulfils a specific function other than automatic data processing.
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45. In that regard, it follows from the Court’s case-law that the determination of the origin of goods must be based on a real and objective distinction between the basic product and the processed product, depending fundamentally on the specific material qualities of each of those products (see Gesellschaft für Überseehandel , paragraph 5; Cousin and Others , paragraph 16; and HEKO Industrieerzeugnisse , paragraph 29).
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16 SINCE THE SPECIFIC CRITERIA OF ORIGIN ADOPTED BY THE COMMISSION IN REGULATION NO 749/78 WERE DRAWN , IN THE FIRST INSTANCE , FROM THE TARIFF CLASSIFICATION OF PROCESSED PRODUCTS IT SHOULD BE BORNE IN MIND , AS THE COURT HAS STATED IN ITS JUDGMENT OF 26 JANUARY 1977 IN CASE 49/76 GESELLSCHAFT FUR UBERSEEHANDEL V HANDELSKAMMER HAMBURG ( 1977 ) ECR 41 , THAT FOR THE PURPOSES OF THE APPLICATION OF REGULATION NO 802/68 IT IS NOT SUFFICIENT TO SEEK CRITERIA DEFINING THE ORIGIN OF GOODS IN THE TARIFF CLASSIFICATION OF PROCESSED PRODUCTS , SINCE THE COMMON CUSTOMS TARIFF HAS BEEN CONCEIVED TO FULFIL SPECIAL PURPOSES AND NOT IN RELATION TO THE DETERMINATION OF THE ORIGIN OF PRODUCTS . ON THE CONTRARY , IN ORDER TO MEET THE PURPOSES AND REQUIREMENTS OF REGULATION NO 802/68 THE DETERMINATION OF THE ORIGIN OF GOODS MUST BE BASED ON A REAL AND OBJECTIVE DISTINCTION BETWEEN RAW MATERIAL AND PROCESSED PRODUCT , DEPENDING FUNDAMENTALLY ON THE SPECIFIC MATERIAL QUALITIES OF EACH OF THOSE PRODUCTS .
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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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25. A special benefit within the meaning of Article 4(2a) of Regulation No 1408/71 is defined by its purpose. It must either replace or supplement a social security benefit and be by its nature social assistance justified on economic and social grounds and fixed by legislation setting objective criteria (see to that effect Case C-20/96 Snares [1997] ECR I-6057, paragraphs 33, 42 and 43, Case C-297/96 Partridge [1998] ECR I-3467, paragraph 34, and Case C-43/99 Leclère and Deaconescu [2001] ECR I-4265, paragraph 32).
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34 That interpretation is borne out by the third, fourth, fifth and sixth recitals in the preamble to Regulation No 1247/92, from which it is clear that the intention of the legislature was to provide a specific system of coordination taking account of the special characteristics of certain benefits falling simultaneously within the categories of both social assistance and social security and treated, according to the Court's case-law, as social security benefits as regards workers already covered by the social security scheme of the State whose legislation is relied on (see, in particular, Newton and Snares). As the Advocate General has stated at point 24 of his Opinion, a benefit such as AA is indeed a benefit of that kind.
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64. First of all, it should be noted that protection of the acquired rights of a category of persons constitutes an overriding reason in the public interest ( Commission v Germany , C‑456/05, EU:C:2007:755, paragraph 63 and Hennigs and Mai , EU:C:2011:560, paragraph 90).
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27. The Court has also held, as regards the first paragraph of Article 17 of the Brussels Convention, that, by making the validity of a jurisdiction clause subject to the existence of an ‘agreement’ between the parties, that provision imposes on the court before w hich the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties (Case C-106/95 MSG [1997] ECR I-911, paragraph 15 and the case-law cited).
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15 The Court has further held with regard to the initial version of Article 17 that, by making the validity of a jurisdiction clause subject to the existence of an `agreement' between the parties, Article 17 imposes on the court before which the matter is brought the duty of examining, first, whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated, and that the purpose of the requirements as to form imposed by Article 17 is to ensure that consensus between the parties is in fact established (Estasis Salotti, paragraph 7, and Segoura, paragraph 6).
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82. Accordingly, the essential question when reviewing whether to continue to include a person on the list at issue is whether, since that person was included in that list or since the last review, the factual situation has changed in such a way that it is no longer possible to draw the same conclusion in relation to the involvement of the person at issue in terrorist activities.
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23. It must be borne in mind at the outset that while it is true that the Court has held that the Guidelines do not constitute the legal basis of fining decisions adopted by the Commission (see Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 209, and Case C‑167/04 P JCB Service v Commission [2006] ECR I‑0000, paragraph 207), the Court has also held that the Guidelines ensure legal certainty on the part of the undertakings since they determine the method which the Commission has bound itself to use for the purposes of setting fines (see Dansk Rørindustri and Others v Commission , paragraph 213, and JCB Service v Commission , paragraph 209).
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209. The Court has already held, in a judgment concerning internal measures adopted by the administration, that although those measures may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. Such measures therefore constitute a general act and the officials and other staff concerned may invoke their illegality in support of an action against the individual measures taken on the basis of the measures (see Case C-171/00 P Libéros v Commission [2002] ECR I-451, paragraph 35).
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16. Thus, the aim and effect of Decision 2005/449 is not to compel the French Republic to grant the exemption proposed in its request for authorisation, but to authorise it to make such an exemption if it so wishes.
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57. It is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the nature of the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Community Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, Case C‑26/00 Netherlands v Commission [2005] ECR I‑6527, paragraph 113 and the case-law cited).
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113. The Court observes that it is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the nature of the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Community Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, Joined Cases C-9/95, C-23/95 and C-156/95 Belgium and Germany v Commission [1997] ECR I-645, paragraph 44, and Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63).
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31. Second, it should be pointed out that the sound functioning and uniform interpretation of the common system of VAT require that the concepts of ‘insurance transactions’ and ‘reinsurance’ in Articles 9(2)(e), fifth indent, and 13B(a) of the Sixth Directive are not defined differently depending on whether they are used in one of those provisions or the other.
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19. Since DBI took the view that that charge had been levied in breach, inter alia , of Article 28 EC, it requested its repayment from the tax authorities, relying in particular on paragraphs 12 and 13 of Commission v Denmark . In its submission, the excessive level of the registration duty made it impossible to import motor vehicles to Denmark under normal commercial conditions, to the benefit of domestic purchases of previously registered used vehicles, which were to be regarded as Danish products, in accordance with the case-law of the Court ( Commission v Denmark , paragraph 17, and Case C-228/98 Dounias [2000] ECR I-577, paragraph 42).
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17 It must be observed at the outset that, as the Commission has correctly observed, the fact that there is no Danish production of motor vehicles does not signify that Denmark has no used-vehicle market . A product becomes a domestic product as soon as it has been imported and placed on the market . Imported used cars and those bought locally constitute similar or competing products . Article 95 therefore applies to the registration duty charged on the importation of used cars .
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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31. Fourth, as regards the provisions of Directive 2004/39 mentioned in the first and second questions which, according to Mr Nilaş, Mr Dascăl and the Romanian Government, are irrelevant in this case, it should be recalled that the fact that a national court has, formally speaking, worded a question by referring to certain provisions of European Union law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is, in this context, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of European Union law which require interpretation, regard being had to the subject-matter of the dispute (see, inter alia, Case C‑115/08 ČEZ [2009] ECR I‑10265, paragraph 81, and Joined Cases C‑307/09 to C-309/09 Vicoplus and Others [2011] ECR I‑0000, paragraph 22).
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22. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of European Union law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is, in this context, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of European Union law which require interpretation, regard being had to the subject-matter of the dispute (see, inter alia, Case C‑115/08 ČEZ [2009] ECR I‑10265, paragraph 81 and the case-law cited).
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44. La Cour a également jugé que, dans le cadre d’un recours formé en application de l’article 226 CE, celui-ci doit présenter les griefs de façon cohérente et précise, afin de permettre à l’État membre et à la Cour d’appréhender exactement la portée de la violation du droit communautaire reprochée, condition nécessaire pour que ledit État puisse faire valoir utilement ses moyens de défense et pour que la Cour puisse vérifier l’existence du manquement allégué (voir arrêt Commission/Irlande, précité, point 31).
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104. According to settled case-law, EU law confers a right to compensation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the infringement must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties (see, inter alia, judgments in Brasserie du pêcheur and Factortame , Joined Cases C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51; Danske Slagterier , C‑445/06, EU:C:2009:178, paragraph 20, and Commission v Italy , C‑379/10, EU:C:2011:775, paragraph 40).
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20. The Court has held that individuals harmed have a right to reparation where three conditions are met: the rule of Community law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals (see Brasserie du pêcheur and Factortame , paragraph 51; Hedley Lomas , paragraph 25; and Dillenkofer and Others , paragraph 21).
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34 It is undisputed that the use of mopeds on a beach used for breeding by the Caretta caretta turtle is, particularly owing to the noise pollution, liable to disturb that species during the laying period, the incubation period and the hatching of the eggs, as well as during the baby turtles' migration to the sea. It is also established that the presence of small boats near the breeding beaches constitutes a source of danger to the life and physical well-being of the turtles.
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31 Finally, the United Kingdom Government could have avoided the adverse financial consequences to which it refers by making available to the Commission the amount claimed while expressing reservations as to the validity of that institution's arguments (see, to that effect, Case C-96/89 Commission v Netherlands, cited above, paragraph 17).
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17 Finally, it must be accepted, as the Commission has rightly pointed out, that the Netherlands Government could have avoided the adverse financial consequences to which it refers by making available to that institution the amount claimed while formulating reservations as to the validity of the Commission' s arguments.
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44. Specifically, the principle of fiscal neutrality precludes economic operators carrying out the same transactions from being treated differently in relation to the levying of VAT (see, to that effect, Abbey National , paragraph 56; JP Morgan Fleming , paragraph 29; and Wheels , paragraph 20).
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56. Where there is no longer any mutual confidence, for whatever reason, the official in question is no longer in a position to carry out his functions. In such circumstances sound administration therefore requires that the institution concerned take, with respect to that official, as soon as possible, a decision to terminate the secondment (see, by analogy, Case 124/78 List v Commission [1979] ECR 2499, paragraph 13, and Case C-294/95 P Ojha v Commission [1996] ECR I-5863, paragraphs 41 and 42).
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41 The Court has repeatedly held that, where they cause tensions prejudicial to the proper functioning of the service, internal relationship difficulties may justify the transfer of an official in the interests of the service. Such a measure may even be taken irrespective of the question of responsibility for the incidents in question (see Case 124/78 List v Commission [1979] ECR 2499, paragraph 13).
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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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39 It is therefore necessary to consider, in turn, whether the requirements imposed by national rules such as those at issue in the main proceedings have a restrictive effect on freedom to provide services, and, if so, whether, in the sector under consideration, such restrictions on freedom to provide services are justified by overriding reasons relating to the public interest. If they are, it is necessary, in addition, to establish whether that interest is already protected by the rules of the Member State in which the service provider is established and whether the same result can be achieved by less restrictive rules (see, in particular, Säger, paragraph 15, Kraus, cited above, paragraph 32, Gebhard, cited above, paragraph 37, Guiot, cited above, paragraph 13, and Reisebüro Broede, cited above, paragraph 28).
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28 Consequently, in accordance with settled case-law, if it is to fall outside the prohibition laid down by Article 59, the restriction imposed by the RBerG must fulfil four conditions: it must be applied in a non-discriminatory manner; it must be justified by imperative requirements in the general interest; it must be suitable for securing the attainment of the objective which it pursues; and it must not go beyond what is necessary in order to attain it (see Gebhard, paragraph 37). The Court has also stated in that connection that freedom to provide services may be restricted only by rules which are justified by overriding reasons in the general interest, in so far as that interest is not safeguarded by the rules to which the provider of the service is subject in the Member State where he is established (see, to that effect, Case C-180/89 Commission v Italy [1991] ECR I-709, paragraph 17, Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 18, and Case C-43/93 Vander Elst v Office des Migrations Internationales [1994] ECR I-3803, paragraph 16).
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41 First, the CNF is responsible only for producing a draft tariff which, as such, is not compulsory. Without the Minister's approval, the draft tariff does not enter into force and the earlier approved tariff remains applicable. Accordingly, the Minister has the power to have the draft amended by the CNF. Furthermore, the Minister is assisted by two public bodies, the Consiglio di Stato and the CIP whose opinions he must obtain before the tariff can be approved.
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97. Moreover, it is necessary to take into account the fundamental rights whose observance the Court ensures. Reasons of public interest may be invoked to justify a national measure which is likely to obstruct the exercise of the freedom of movement for workers only if the measure in question takes account of such rights (see, to that effect, Case C-260/89 ERT [1991] ECR I-2925, paragraph 43; Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 24; and Case C‑60/00 Carpenter [2002] ECR I-6279, paragraph 40).
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24 Furthermore, it is to be noted that where a Member State relies on overriding requirements to justify rules which are likely to obstruct the exercise of free movement of goods, such justification must also be interpreted in the light of the general principles of law and in particular of fundamental rights (see Case C-260/89 ERT [1991] ECR I-2925, paragraph 43).
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30. The requirement that the charging of a reduced rate must not give rise to any risk of distortion of competition will be considered in the context of the question concerning the procedure laid down by Article 12(3)(b) of the Sixth Directive.
The procedure laid down by Article 12(3)(b) of the Sixth Directive
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30. As the action at first instance concerned a Commission decision on State aid, it must be borne in mind that, in the context of the procedure for reviewing State aid provided for in Article 88 EC, the preliminary stage of the procedure for reviewing aid under Article 88(3) EC, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the stage of the review under Article 88(2) EC. It is only at the latter stage, which is designed to enable the Commission to be fully informed of all the facts of the case, that the Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments (see Cook , paragraph 22; Matra , paragraph 16; Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 38; Aktionsgemeinschaft Recht und Eigentum , paragraph 34; and British Aggregates , paragraph 27).
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38 In the context of the procedure laid down by Article 93, the preliminary stage of the procedure for reviewing aid under Article 93(3) of the Treaty, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must therefore be distinguished from the examination under Article 93(2), which is designed to enable the Commission to be fully informed of all the facts of the case (Case C-198/91 Cook v Commission [1993] ECR I-2487, paragraph 22, and Case C-225/91 Matra v Commission [1993] ECR I-3203, paragraph 16).
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15 IN OTHER WORDS, DISREGARDING THE CONCEPTS USED BY FRENCH LEGISLATION AND PRACTICE, THE SUPPLEMENTARY MECHANICAL REPRODUCTION FEE MAY THUS BE ANALYSED AS CONSTITUTING PART OF THE PAYMENT FOR AN AUTHOR' S RIGHTS OVER THE PUBLIC PERFORMANCE OF A RECORDED MUSICAL WORK . MOREOVER, THE AMOUNT OF THAT ROYALTY, LIKE THAT OF THE PERFORMANCE FEE STRICTLY SO CALLED, IS CALCULATED ON THE BASIS OF THE DISCOTHEQUE' S TURNOVER AND NOT THE NUMBER OF RECORDS BOUGHT OR PLAYED .
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103 In allowing, in certain circumstances, derogations from the general rules of the Treaty, Article 90(2) of the Treaty seeks to reconcile the Member States' interest in using certain undertakings, in particular in the public sector, as an instrument of economic or fiscal policy with the Community's interest in ensuring compliance with the rules on competition and preservation of the unity of the common market (Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 12, and Case C-157/94 Commission v Netherlands [1997] ECR I-5699, paragraph 39).
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39 Moreover, in Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 12, the Court held that, in allowing derogations to be made from the general rules of the Treaty in certain circumstances, Article 90(2) seeks to reconcile the Member States' interest in using certain undertakings, in particular in the public sector, as an instrument of economic or fiscal policy with the Community's interest in ensuring compliance with the rules on competition and the preservation of the unity of the common market.
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49
It must further be stated that, as is apparent from the order for reference, the authorisation code — which the service provider does no more than request, receive and retransmit, and over the provision of which it therefore has no control — contained in that file represents only an authorisation, to proceed with the sale, which the card issuer concerned, via the merchant acquirer, supplies to the service provider. There is again no question of a specific function that is essential to the transfer of ownership of the funds concerned. Accordingly, whether such a code is obtained by the provider of that service directly from the card issuer, or rather via its merchant acquirer, is of no relevance to the determination of whether a card handling service, such as that at issue in the main proceedings, does or does not fall within the scope of the exemption at issue.
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84. It must be recalled, in that respect, that, in accordance with settled case-law, although the Member States are free to determine the connecting factors for the allocation of fiscal jurisdiction in bilateral conventions for the avoidance of double taxation, that allocation of fiscal jurisdiction does not allow them to apply measures contrary to the freedoms of movement guaranteed by the Treaty. As far as concerns the exercise of the power of taxation so allocated by bilateral conventions to prevent double taxation, the Member States must comply with EU rules (see, to that effect, Case C‑385/00 de Groot [2002] ECR I‑11819, paragraphs 93 and 94; Case C‑265/04 Bouanich [2006] ECR I‑923, paragraphs 49 and 50; and Case C‑303/12 Imfeld and Garcet [2013] ECR, paragraphs 41 and 42).
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50. None the less, such an allocation of fiscal jurisdiction does not permit Member States to introduce discriminatory measures which are contrary to the Community rules.
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69. In the province of Upper Austria, the relevant assessment is made on the basis of the answers given by practitioners practising in the catchment area of the independent outpatient dental clinic intended to be set up, even though they are potential direct competitors of that clinic. Such a method is liable to affect the objectivity and impartiality of the treatment of the application for authorisation.
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55
Article 12 of Regulation No 1612/68 seeks in particular to ensure that the children of a worker who is a national of a Member State can, even if that worker has ceased to be employed in the host Member State, undertake and, where appropriate, complete their education in the latter Member State (judgment of 23 February 2010, Teixeira, C‑480/08, EU:C:2010:83, paragraph 51).
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51. In paragraph 69 of Baumbast and R , the Court moreover expressly stated that Article 12 of Regulation No 1612/68 seeks in particular to ensure that children of a worker who is a national of a Member State can, even if he has ceased to be employed in the host Member State, undertake and, where appropriate, complete their education in the latter Member State.
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17 It must be recalled that, as is apparent from the judgment of 20 March 1986 in Case 303/84 Commission v Federal Republic of Germany (( 1986 )) ECR 1171, there is an inseparable link between the obligation to establish the Community' s own resources, the obligation to credit them to the Commission' s account within the prescribed time-limit and the obligation to pay default interest . It is apparent from the same judgment that the interest is payable "regardless of the reason for the delay in making the entry in the Commission' s account ".
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39. It should be noted that Member States are required, under Article 3(9) of Directive 2003/54, to inform the Commission of all measures adopted to fulfil public service obligations, including consumer protection, and of their possible effect on national and international competition, whether or not such measures require a derogation from that directive, and to inform the Commission every two years of any changes to such measures (see, to that effect, Case C‑265/08 Federutility and Others [2010] ECR I‑3377, paragraph 23) and that notification of those measures makes it possible to check whether a Member State sought to impose a public service obligation. However, the absence of notification is not sufficient in itself to demonstrate that the legislation at issue does not constitute a public service obligation.
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23. It should be noted that that power is exercised subject to the review of the Commission, since Member States are required under Article 3(6) of Directive 2003/55 to inform the Commission of all measures taken to fulfil public service obligations and their possible effects on national and international competition, whether or not such measures require a derogation from the provisions of that directive, and to notify the Commission every two years of any changes to such measures.
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44. It must also be borne in mind that the principle of fiscal neutrality precludes, inter alia, economic operators carrying on the same activities from being treated differently as far as the levying of VAT is concerned ( Kügler , cited above, paragraph 30).
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56. The Court has already held in similar circumstances that if the pre‑litigation procedure has attained its objective of protecting the rights of the Member State in question, that Member State, which did not inform the Commission during the pre-litigation procedure that the directive should be regarded as having already been implemented in its domestic law, cannot complain that the Commission has extended or altered the subject-matter of the action as defined by the pre-litigation procedure. According to the Court, the Commission may, after alleging that a Member State has failed to transpose a directive at all, specify in its reply that the implementation pleaded for the first time by the Member State concerned in its defence is in any event incorrect or incomplete so far as certain provisions of the directive are concerned, as such a complaint is necessarily included in the complaint alleging a complete failure to transpose and is subsidiary to that complaint (Case C‑456/03 Commission v Italy [2005] ECR I‑5335, paragraphs 23 to 42, and, in particular, paragraph 40).
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38. In the present case, it is clear that, as the Italian Government submits, in complaining in the course of the pre-litigation procedure that the Italian Republic had not adopted the provisions necessary to comply with the Directive, the Commission was essentially alleging that the Italian Republic had not transposed the Directive at all. On the other hand, in the arguments put forward in its reply regarding the domestic law in force, the Commission submits that the Italian Republic has not transposed certain provisions of the Directive, thereby requiring the domestic law in force to be examined in detail in order to ascertain which of those provisions have not in fact been transposed correctly or completely.
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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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33. All that is necessary, when the Member State concerned exercises that power, is that it comply with Community law (see, in particular, Terhoeve , paragraph 34, and Case C-227/03 Van Pommeren-Bourgondiën [2005] ECR I-0000, paragraph 39).
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34 However, while it is true that, in the absence of harmonisation at Community level, it is for the legislation of each Member State to determine the conditions governing the right or duty to be insured with a social security scheme, the Member States must nevertheless comply with Community law when exercising that power (see, in particular, Case C-120/95 Decker v Caisse de Maladie des Employés Privés [1998] ECR I-1831, paragraphs 22 and 23, and Case C-158/96 Kohll v Union des Caisses de Maladie [1998] ECR I-1931, paragraphs 18 and 19).
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25. Having regard to those provisions, it can be concluded that the EU legislature recognised that undertakings providing electronic communications services may have a legitimate interest in being able to adjust the prices and charges for their services (see, by analogy, judgment in RWE Vertrieb , C‑92/11, EU:C:2013:180, paragraph 46).
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13 It must next be noted that, in its judgment in Case C-305/88 Lancray [1990] ECR I-2725, paragraph 18, the Court held that due service and service in sufficient time constituted two separate and concurrent safeguards for a defendant who fails to appear. The absence of one of those safeguards is therefore a sufficient ground for refusing to recognize a foreign judgment.
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18 It must therefore be held that the requirements of due service and service in sufficient time constitute two separate and concurrent safeguards for a defendant who fails to appear . The absence of one of those safeguards is therefore a sufficient ground for refusal to recognize a foreign judgment .
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32 THE DRAFTING OF PARAGRAPH ( 2 ) INDICATES THAT THE COUNCIL ' S DISCRETION IS LESS WIDE IN THAT MATTER THAN IN RELATION TO THE ANNUAL ADJUSTMENT OF SALARIES . THE PROVISION READS : ' ' IN THE EVENT OF A SUBSTANTIAL CHANGE IN THE COST OF LIVING , THE COUNCIL SHALL DECIDE . . . . WHAT ADJUSTMENTS SHOULD BE MADE TO THE WEIGHTINGS ' ' , WHICH IMPLIES THAT WHEN THE COST OF LIVING RISES SUBSTANTIALLY THE COUNCIL HAS A DUTY TO TAKE STEPS TO ADJUST THE WEIGHTINGS .
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28. In the context of that cooperation, the national court seised of the dispute, which alone has direct knowledge of the facts of the main action and must assume responsibility for the subsequent judicial decision, is in the best position to assess, having regard to the particular features of the case, whether a preliminary ruling is necessary to enable it to give judgment and the relevance of the questions which it refers to the Court (see, inter alia, Lourenço Dias , cited above, paragraph 15; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18; and Siemens and ARGE Telekom , cited above, paragraph 34).
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18 It is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts established by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, for example, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59).
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75 It should be noted that that policy is also designed to protect the health and life of humans, animals and plants.
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45. With regard to the principle of legal certainty, this requires in particular that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them (Case C-17/03 VEMW and Others [2005] ECR I-4983, paragraph 80). The Habitats Directive fulfils those requirements with regard to the situation in the main proceedings.
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80. With regard to the principle of legal certainty, this requires in particular that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them (see, to this effect, Case 325/85 Ireland v Commission [1987] ECR 5041, Case C-143/93 Van Es Douane Agenten [1996] ECR I-431, paragraph 27; and Case C-63/93 Duff and Others [1996] ECR I-569, paragraph 20).
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23 Article 9 of the implementing regulation adopted under that procedure, in so far as it provides that, for recourse to equivalent compensation to be available, the equivalent goods must not only display the same commercial quality and have the same technical characteristics as the import goods, but must also fall within the same Common Customs Tariff subheading, is intended to limit, in the manner provided for by Article 2(4) of the basic regulation, recourse to the equivalent compensation system. If the equivalent goods and the import goods had the same commercial quality and technical characteristics but did not come within the same tariff subheading, recourse to the equivalent compensation system would be precluded.
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36. However, given that the protection of copyright and rights related to copyright granted by the Member State of the court seised is limited to the territory of that Member State, a court seised on the basis of the place where the alleged damage occurred has jurisdiction only to rule on the damage caused within that Member State (see, to that effect, judgment in Pinckney , EU:C:2013:635, paragraph 45).
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45. However, if the protection granted by the Member State of the place of the court seised is applicable only in that Member State, the court seised only has jurisdiction to determine the damage caused within the Member State in which it is situated.
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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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27. In other words, it is only in the case where the competent authority has all the particulars and documents relating to the reference medicinal product that Article 10(1) of Directive 2001/83 replaces the obligation on applicants for marketing authorisation to provide results of the tests and trials referred to in Article 8(3)(i) of that directive with the obligation to demonstrate that the medicinal product in question is so similar to that reference medicinal product, which already benefits from such an authorisation, that it does not differ significantly from that product as regards safety and efficacy (see, to that effect, Generics (UK) and Others , paragraphs 23 and 24).
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23 That procedure is merely intended to reduce the time needed to prepare an application for authorisation by freeing the applicant from the obligation to carry out the pharmacological and toxicological tests and clinical trials referred to in Article 4.8 of Directive 65/65, the objective of which is to prove the safety and efficacy of medicinal products (see Scotia Pharmaceuticals, cited above, paragraph 17).
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29 It follows that, in such a situation, the fact that the concept of Community law whose interpretation is requested is to be applied, in the context of national law, in circumstances different from those envisaged by the corresponding Community provision does not of itself exclude all links between the interpretation sought and the subject-matter of the main proceedings.
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51
Consequently, there is no connection between, on the one, hand, the operative event for the levy at issue in the cases in the main proceedings and, on the other, the actual production of electricity by wind turbines, and even less the consumption of electricity generated by them (see, by analogy, judgments of 10 June 1999, Braathens, C‑346/97, EU:C:1999:291, paragraphs 22 and 23; of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraphs 61 to 65; and of 1 October 2015, OKG, C‑606/13, EU:C:2015:636, paragraphs 31 to 35).
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35. Similarly, nor can there be said to be a direct and inseverable link between the chargeable event for the tax and the consumption of electricity generated by a given nuclear reactor, as held in the judgment in Braathens (C‑346/97, EU:C:1999:291, paragraph 23).
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42. According to recital 4 in the preamble to the Framework Decision the victims of crime should be afforded a high level of protection.
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21 In Vlassopoulou, paragraph 16, the Court held that Article 52 of the Treaty must be interpreted as meaning that a Member State seised of an application for authorisation to practise a profession access to which, under national law, depends on the possession of a diploma or professional qualification must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to practise that profession in another Member State, by comparing the specialised knowledge and abilities certified by those diplomas with the knowledge and qualifications required by the national rules.
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16 Consequently, a Member State which receives a request to admit a person to a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialized knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules.
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55. The phrase ‘to meet family expenses’ which is used in that provision is to be interpreted as referring, in particular, to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children ( Offermanns , paragraph 41, and Case C‑333/00 Maaheimo [2002] ECR I‑10087, paragraph 25).
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58. The differences in treatment authorised by Article 65(1)(a) TFEU must thus be distinguished from discrimination prohibited by Article 65(3). The case-law shows that, for national tax legislation such as that at issue in the main proceedings to be capable of being regarded as compatible with the provisions of the Treaty on the free movement of capital, the difference in treatment which it prescribes, between portfolio dividends from resident companies and those from companies established in a non-member State party to the EEA Agreement, must concern situations which are not objectively comparable or be justified by an overriding reason in the public interest (see Case C‑35/98 Verkooijen [2000] ECR I‑4071, paragraph 43; Case C‑319/02 Manninen [2004] ECR I‑7477, paragraph 29; Case C‑512/03 Blanckaert [2005] ECR I‑7685, paragraph 42; and Case C‑540/07 Commission v Italy [2009] ECR I‑10983, paragraph 49).
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29. A distinction must therefore be made between unequal treatment which is permitted under Article 58(1)(a) EC and arbitrary discrimination which is prohibited by Article 58(3). In that respect, the case-law shows that, for national tax legislation like that at issue, which, in relation to a fully taxable person in the Member State concerned makes a distinction between revenue from national dividends and that from foreign dividends, to be capable of being regarded as compatible with the Treaty provisions on the free movement of capital, the difference in treatment must concern situations which are not objectively comparable or be justified by overriding reasons in the general interest, such as the need to safeguard the coherence of the tax system ( Verkooijen , paragraph 43). In order to be justified, moreover, the difference in treatment between different categories of dividends must not go beyond what is necessary in order to attain the objective of the legislation.
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47 It must be noted in that regard that an examination of the substance of the Commission's principal claim does not necessarily require the Court to take a view on the question whether the amendments made in 1995 transformed the pre-existing 1980 Agreement into a new agreement.
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23 As regards the first of those concepts, it should be recalled at the outset that the Court has consistently concluded from the wording of Article 12 of the EEC-Turkey Association Agreement and Article 36 of the additional protocol, signed on 23 November 1970, annexed to that Agreement and concluded by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 18), as well as from the objective of Decision No 1/80, that the principles enshrined in Articles 48, 49 and 50 of the EC Treaty must be extended, so far as possible, to Turkish workers who enjoy the rights conferred by Decision No 1/80 (see, to that effect, Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475, paragraphs 14, 19 and 20; Case C-171/95 Tetik v Land Berlin [1997] ECR I-329, paragraphs 20 and 28, and the judgments in Günaydin, paragraph 21, and Ertanir, paragraph 21).
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20 The provisions of Section 1 (`Questions relating to employment and the free movement of workers') of Chapter II (`Social provisions') of Decision No 1/80, of which Article 6 forms part, thus constitute a further stage in securing freedom of movement for workers on the basis of Articles 48, 49 and 50 of the Treaty (see paragraphs 14 and 19 of Bozkurt, cited above). The Court accordingly considered it essential to transpose, so far as possible, the principles enshrined in those Treaty articles to Turkish workers who enjoy the rights conferred by Decision No 1/80 (see Bozkurt, paragraph 20).
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57. S’agissant, deuxièmement, de l’omission dans le contrat de crédit litigieux de la mention de certaines informations relatives aux conditions de remboursement et aux frais liés à ce crédit, la Cour a jugé que, eu égard à l’objectif de protection du consommateur poursuivi par la directive 87/102 contre des conditions de crédit inéquitables et afin de lui permettre d’avoir une entière connaissance des conditions de l’exécution future du contrat souscrit, lors de la conclusion de celui‑ci, l’article 4 de cette directive exige que l’emprunteur détienne l’ensemble des éléments susceptibles d’avoir une incidence sur la portée de son engagement (voir, en ce sens, arrêt Berliner Kindl Brauerei, C‑208/98, EU:C:2000:152, point 21, et ordonnance Pohotovosť, C‑76/10, EU:C:2010:685, point 68).
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51. Consequently, the concept of the value of sales referred to in point 13 of those Guidelines encompasses the sales made on the market concerned by the infringement in the EEA, and it is not necessary to determine whether those sales were genuinely affected by that infringement, since the proportion of the overall turnover deriving from the sale of goods in respect of which the infringement was committed is best able to reflect the economic importance of that infringement (see, to that effect, judgments in Team Relocations and Others v Commission , C‑444/11 P, EU:C:2013:464, paragraphs 75 to 78; Guardian Industries and Guardian Europe v Commission , C‑580/12 P, EU:C:2014:2363, paragraphs 57 to 59; Dole Food and Dole Fresh Fruit Europe v Commission , C‑286/13 P, EU:C:2015:184, paragraphs 148 and 149; and LG Display and LG Display Taiwan v Commission , C‑227/14 P, EU:C:2015:258, paragraphs 53 to 58 and 64).
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148. It follows that point 13 of the Guidelines pursues the objective of adopting as the starting point for the calculation of the fine to be imposed on an undertaking an amount which reflects the economic importance of the infringement and the size of the undertaking’s contribution to it. Consequently, while the concept of the value of sales referred to in point 13 of those guidelines cannot, admittedly, extend to encompassing sales made by the undertaking in question which do not fall, directly or indirectly, within the scope of the alleged cartel, it would none the less be contrary to the goal pursued by that provision if that concept were understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (judgment in Team Relocations and Others v Commission , C‑444/11 P, EU:C:2013:464, paragraph 76).
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53. The finding, by the Court of First Instance, as to whether the facts on which the Board of Appeal of OHIM has based its decision are well known or not is a factual assessment which, save where the facts or evidence are distorted, is not subject to review by the Court of Justice on appeal.
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31. In those circumstances, it must therefore be found that, in submitting that it in fact adduced evidence capable of rebutting the presumption that it exercised decisive influence over Trioplast Wittenheim, FLSmidth is, in reality, simply asking the Court to conduct a fresh appraisal of the facts and the evidence provided, without asserting, however, that the General Court distorted them. Such an appraisal does not constitute a point of law which is subject, as such, to review by the Court of Justice (see, to that effect, inter alia, Case C‑551/03 P General Motors v Commission EU:C:2006:229, paragraphs 51 and 52, and Case C‑352/09 P ThyssenKrupp Nirosta v Commission EU:C:2011:191, paragraphs 179 and 180). This argument is therefore inadmissible.
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51. In that regard, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, in particular, Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 23).
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17. Il convient de rappeler, à cet égard, que, si les États membres sont libres de choisir les voies et moyens destinés à assurer la mise en œuvre d’une directive, cette liberté laisse cependant entière l’obligation, pour chacun des États destinataires, de prendre, dans le cadre de son ordre juridique national, toutes les mesures nécessaires en vue d’assurer le plein effet de la directive (voir, en ce sens, arrêt du 10 avril 1984, von Colson et Kamann, 14/83, Rec. p. 1891, point 15).
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31. Thus, Member States cannot, in principle, apply different charges to competing operators for the use of scarce resources whose values appear to be equivalent in economic terms (see, to that effect ISIS Multimedia Net and Firma O2 , paragraphs 40 and 41).
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41. A similar examination must therefore be carried out comparing charges applied to the undertaking in a dominant position and to its competitors for the allocation of telephone numbers.
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133. Accordingly, as regards the possible fine that could be imposed on E.ON Energie, pursuant to Article 23(2) of Regulation No 1/2003, in the event that the practices investigated are proved to have occurred, the fine of EUR 38 million, set down in the contested decision and confirmed by the General Court in the judgment under appeal and representing 0.14% of its annual turnover, could not be considered as excessive as regards the need to ensure its deterrent effect. It must be added, for the record, that by advancing, at paragraph 294 of the judgment under appeal, the three reasons mentioned at paragraph 127 above, the General Court gave sufficient reasons for its decision, adopted in the exercise of its unlimited jurisdiction, on the proportionality of the penalty imposed.
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46. By guaranteeing that a person covered by social insurance under the legislation of one Member State whose state of health makes medical services immediately necessary during a stay in another Member State, or who has been authorised by the competent institution to go to another Member State to receive treatment there which is appropriate to his state of health, has access to treatment in that other Member State on reimbursement conditions as favourable as those enjoyed by insured persons covered by the legislation of that State, Article 22 of Regulation No 1408/71 helps to facilitate the free movement of persons covered by social insurance and, to the same extent, the provision of cross-frontier medical services between Member States (see Case C‑368/98 Vanbraekel and Others [2001] ECR I‑5363, paragraph 32, and Case C‑56/01 Inizan [2003] ECR I‑12403, paragraph 21).
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21. It follows that, by guaranteeing in paragraph 1(c)(i) that insured persons covered by the legislation of one Member State and granted authorisation have access to treatment in the other Member States on conditions of reimbursement as favourable as those enjoyed by insured persons covered by the legislation of those other States and by stating, in the second subparagraph of paragraph 2, that the competent national institution may not refuse such authorisation where the two conditions laid down therein are satisfied, Article 22 of Regulation No 1408/71, as mentioned in particular by the Council and the Commission, helps to facilitate the free movement of insured persons (see, to that effect, Vanbraekel and Others , paragraph 32) and, to the same extent, the cross-border provision of medical services between Member States.
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19. Toutefois, aux fins de son interprétation, l’article 12, sous a), de la directive 95/46 ne saurait être examiné dans la seule version en langue néerlandaise. En effet, conformément à une jurisprudence constante, la nécessité d’une application et, dès lors, d’une interprétation uniformes d’un acte de l’Union exclut que celui-ci soit considéré isolément dans une de ses versions, mais exige qu’il soit interprété en fonction tant de la volonté réelle de son auteur que du but poursuivi par ce dernier, à la lumière, notamment, des versions établies dans toutes les langues (voir, notamment, arrêts du 12 novembre 1969, Stauder, 29/69, Rec. p. 419, point 3; du 8 décembre 2005, Jyske Finans, C‑280/04, Rec. p. I‑10683, point 31, ainsi que du 7 juillet 2011, IMC Securities, C‑445/09, Rec. p. I‑5917, point 25).
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22. According to settled case-law, a supply of services is effected ‘for consideration’, within the meaning of that provision, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the actual consideration for the service supplied to the recipient (judgment in Tolsma , C‑16/93, EU:C:1994:80, paragraph 14).
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14 It follows that a supply of services is effected "for consideration" within the meaning of Article 2(1) of the Sixth Directive, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient.
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15 In that regard, it should be borne in mind that, as the Court has consistently held, it is for the legislature of each Member State to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme, which include the conditions governing the cessation of affiliation, provided always that in that connection there is no discrimination between nationals of the host State and nationals of the other Member States (see, inter alia, the judgment of 24 September 1986 in Case 43/86, Sociale Verzekeringsbank v De Rijke [1987] ECR 3611, at paragraph 12).
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18 It is clear from Minalmet, paragraphs 19 and 20, that in order to enable the defendant to arrange for his defence, service of the document which instituted the proceedings or an equivalent document within the meaning of Article 27(2) of the Convention must be effected before an enforceable judgment is given in the State of origin.
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20 As correctly pointed out by the national court, once a judgment has been delivered and has become enforceable, the defendant can obtain suspension of its enforcement, if suspension is appropriate, only under more difficult circumstances and may also find himself confronted by procedural difficulties. The possibility for a defaulting defendant to defend himself is thus considerably diminished. Such a result would run counter to the purpose of the provision in question.
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27. Elle concerne les emplois qui comportent une participation, directe ou indirecte, à l’exercice de la puissance publique et aux fonctions qui ont pour objet la sauvegarde des intérêts généraux de l’État ou des autres collectivités publiques, et supposent ainsi, de la part de leurs titulaires, l’existence d’un rapport particulier de solidarité à l’égard de l’État ainsi que la réciprocité des droits et devoirs qui sont le fondement du lien de nationalité (voir arrêt Colegio de Oficiales de la Marina Mercante Española, précité, point 39 et jurisprudence citée).
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55. The Commission argues that, in paragraphs 50 to 52 of the judgment in Kremikovtzi (C‑262/11, EU:C:2012:760), relating to Annex V to the 2005 Act of Accession, the Court has previously rejected an argument comparable to that raised by Dunamenti Erőmű in the second ground of this appeal. In the judgment in Rousse Industry v Commission (T‑489/11, EU:T:2013:144, paragraphs 61 to 64), the General Court also rejected such an argument. Further, none of the judgments on which Dunamenti Erőmű relies concern measures adopted by a Member State before its accession to the European Union which, after that accession, continued to be applicable.
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50. Moreover, it follows from Article 2 of the Act of Accession that Articles 87 EC to 89 EC and Regulation No 659/1999 are applicable in Bulgaria only as from its accession to the European Union on 1 January 2007, under the conditions laid down in the Act of Accession.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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36 Thus, the Court of Justice has jurisdiction to verify whether a breach of procedure adversely affecting the appellant's interests was committed before the Court of First Instance and must satisfy itself that the general principles of Community law and the Rules of Procedure applicable to the burden of proof and the taking of evidence have been complied with (see, in particular, Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 19).
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19 Thus, the Court of Justice has jurisdiction to verify whether a breach of procedure adversely affecting the appellant's interests was committed before the Court of First Instance and must satisfy itself that the general principles of Community law and the Rules of Procedure applicable to the burden of proof and the taking of evidence have been complied with (see, in particular, the order in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 40).
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21 To interpret Article 26 of the Sixth Directive as applying solely to traders who are travel agents or tour operators within the normal meaning of those terms would mean that identical services would come under different provisions depending on the formal classification of the trader.
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65. A commitment of that type arises from Article 11 of the 1957 Agreement, as amended by the Exchange of Notes of 29 January and 13 March 1992 and by Article 6 of the 1978 Protocol. The Kingdom of the Netherlands has maintained that commitment despite the renegotiation of the 1957 Agreement which led to the Exchange of Notes of October 1992. By proceeding in that way, the Kingdom of the Netherlands has thus infringed the exclusive external competence of the Community which results from Article 1(3) of Regulation No 2409/92 (see, to that effect, Commission v Denmark , paragraphs 97 to 100; Commission v Sweden , paragraphs 93 to 96; Commission v Finland , paragraphs 98 to 101; Commission v Belgium , paragraphs 110 to 113; Commission v Luxembourg , paragraphs 103 to 106; Commission v Austria , paragraphs 112 to 115, and Commission v Germany , paragraphs 123 to 126).
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113 A commitment of that type arises from Article 12 of the 1980 Agreement, as amended in 1995. The Kingdom of Belgium has thus infringed the Community's exclusive external competence resulting from Article 1(3) of Regulation No 2409/92.
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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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91. Or, même à considérer de telles indications comme des assurances précises aptes à faire naître dans le chef des destinataires une confiance légitime, il y a lieu d’exclure, ainsi que l’a fait le Tribunal au point 95 de l’arrêt attaqué, que les requérants puissent se prévaloir de celle-ci pour contester la légalité de la règle juridique sur laquelle se fondent les décisions litigieuses. En effet, les particuliers ne sauraient se prévaloir du principe de protection de la confiance légitime pour s’opposer à l’application d’une disposition réglementaire nouvelle, surtout dans un domaine dans lequel le législateur dispose d’un large pouvoir d’appréciation (voir, notamment, arrêt du 19 novembre 1998, Espagne/Conseil, C-284/94, Rec. p. I‑7309, point 43).
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43 As regards the question whether this plea in law is well founded, it should be recalled, first, that since, according to settled case-law, the Community institutions enjoy a margin of discretion in the choice of the means needed to achieve the common commercial policy, traders cannot claim to have a legitimate expectation that an existing situation which is capable of being altered by decisions taken by those institutions within the limits of their discretionary power will be maintained (Edeka Zentrale v Germany, cited above, paragraph 27; Faust v Commission, cited above, paragraph 27; Koyo Seiko v Council, cited above, paragraph 20; Nippon Seiko v Council, cited above, paragraph 34; and Minebea v Council, cited above, paragraph 28).
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62 Finally, the first three ACP-EEC Conventions all contained a standstill clause worded in terms similar to those in Article 1 of Protocol No 5 on bananas.
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33. As far as concerns whether the subjective understanding that the recipients of services, such as those at issue in the main proceedings, have must be taken into consideration in the assessment of the purpose of a specific intervention, which is the subject of the third question, it follows from the case-law that the health problems covered by exempt transactions under Article 132(1)(b) and (c) of the VAT Directive may be psychological (see to that effect, in particular, Case C‑45/01 Dornier [2003] ECR I‑12911, paragraph 50, and Joined Cases C‑443/04 and C‑444/04 Solleveld and van den Hout-van Eijnsbergen [2006] ECR I‑3617, paragraphs 16 and 24).
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24. In the present case, it is common ground that the treatments given by the applicants in the main proceedings constitute medical care within the meaning of that provision, since those treatments are carried out for the purpose of diagnosing, treating and, in so far as possible, curing diseases or health disorders, thus pursuing a therapeutic aim (Case C‑307/01 D’Ambrumenil and Dispute Resolution Services [2003] ECR I‑13989, paragraph 57).
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48. Lastly, it must be held that a general derogation from the application of the directive in respect of published information would largely deprive the directive of its effect. It would be sufficient for the Member States to publish data in order for those data to cease to enjoy the protection afforded by the directive.
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32. In the light of those objectives, Clause 4 of the Framework Agreement must be interpreted as articulating a principle of European Union social law which cannot be interpreted restrictively (see, by analogy, Case C‑307/05 Del Cerro Alonso [2007] ECR I‑7109, paragraph 38, and Impact , paragraph 114).
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114. In the light of those objectives, Clause 4 of the framework agreement must be interpreted as articulating a principle of Community social law which cannot be interpreted restrictively (see Del Cerro Alonso , paragraph 38).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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37. With this in mind, the Court also notes that, according to recital 2 in the preamble to Regulation No 1393/2007, that regulation aims to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States, in order to reinforce the proper functioning of the internal market (see, to that effect, judgments in Alder , C‑325/11, EU:C:2012:824, paragraphs 29 and 34, and Roda Golf & Beach Resort , C‑14/08, EU:C:2009:395, paragraph 54).
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34. It is necessary to point out, in this regard, that the regulation, as is apparent from recital 2 in the preamble thereto, has, admittedly, the objective of improving and expediting the transmission of judicial documents between Member States (see, in this sense, Case C-14/07 Weiss und Partner [2008] ECR I-3367, paragraph 46, and Roda Golf & Beach Resort , paragraph 54).
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21. SGL soutenant que le Tribunal a écarté, de manière erronée, comme irrecevable son grief relatif à la non-pertinence de la prise en compte de la valeur de la consommation captive dans le calcul de son chiffre d’affaires et de sa part de marché, et, partant, du montant de base de l’amende à lui infliger, il convient de rappeler que, conformément à l’article 48, paragraphe 2, du règlement de procédure du Tribunal, la production de moyens nouveaux en cours d’instance est interdite, à moins que ces moyens ne se fondent sur des éléments de droit et de fait qui se sont révélés pendant l’instance.
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32. According to settled case-law, for the purposes of applying Article 82 EC, the relevant product or service market includes products or services which are substitutable or sufficiently interchangeable with the product or service in question, not only in terms of their objective characteristics, by virtue of which they are particularly suitable for satisfying the constant needs of consumers, but also in terms of the conditions of competition and the structure of supply and demand on the market in question (see, to that effect, Case 31/80 L’Oréal [1980] ECR 3775, paragraph 25; Case 322/81 Nederlandsche Banden Industrie Michelin v Commission [1983] ECR 3461, paragraph 37; and Case C‑62/86 AKZO v Commissio n [1991] ECR I‑3359, paragraph 51).
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37 AS THE COURT HAS REPEATEDLY EMPHASIZED , MOST RECENTLY IN ITS JUDGMENT OF 11 DECEMBER 1980 IN CASE 31/80 NV L ' OREAL AND SA L ' OREAL V PVBA DE NIEUWE AMCK ( 1980 ) ECR 3775 , FOR THE PURPOSES OF INVESTIGATING THE POSSIBLY DOMINANT POSITION OF AN UNDERTAKING ON A GIVEN MARKET , THE POSSIBILITIES OF COMPETITION MUST BE JUDGED IN THE CONTEXT OF THE MARKET COMPRISING THE TOTALITY OF THE PRODUCTS WHICH , WITH RESPECT TO THEIR CHARACTERISTICS , ARE PARTICULARLY SUITABLE FOR SATISFYING CONSTANT NEEDS AND ARE ONLY TO A LIMITED EXTENT INTERCHANGEABLE WITH OTHER PRODUCTS . HOWEVER , IT MUST BE NOTED THAT THE DETERMINATION OF THE RELEVANT MARKET IS USEFUL IN ASSESSING WHETHER THE UNDERTAKING CONCERNED IS IN A POSITION TO PREVENT EFFECTIVE COMPETITION FROM BEING MAINTAINED AND BEHAVE TO AN APPRECIABLE EXTENT INDEPENDENTLY OF ITS COMPETITORS AND CUSTOMERS AND CONSUMERS . FOR THIS PURPOSE , THEREFORE , AN EXAMINATION LIMITED TO THE OBJECTIVE CHARACTERISTICS ONLY OF THE RELEVANT PRODUCTS CANNOT BE SUFFICIENT : THE COMPETITIVE CONDITIONS AND THE STRUCTURE OF SUPPLY AND DEMAND ON THE MARKET MUST ALSO BE TAKEN INTO CONSIDERATION .
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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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