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78. In order to provide an answer which is of use to the national court, it should be recalled that the Treaty does not require national monopolies having a commercial character to be abolished completely, but requires them to be adjusted in such a way as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States (Case C‑189/95 Franzén [1997] ECR I‑5909, paragraph 38 and the case-law cited).
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38 However, the Court has repeatedly stated that Article 37 does not require national monopolies having a commercial character to be abolished but requires them to be adjusted in such a way as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States (see the judgments cited above: Manghera, paragraph 5; Hansen, paragraph 8; Commission v Italy, paragraph 11 and Banchero II, paragraph 27).
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57. À cet égard, il convient de relever que l’exigence d’impartialité, qui s’impose aux institutions dans l’accomplissement de leurs missions, vise à garantir l’égalité de traitement qui est à la base de la Communauté. Cette exigence vise, en particulier, à éviter des situations de conflits d’intérêts éventuels dans le chef de fonctionnaires. Compte tenu de l’importance fondamentale de la garantie d’indépendance et d’intégrité des fonctionnaires en ce qui concerne tant le fonctionnement interne que l’image extérieure des institutions communautaires, l’exigence d’impartialité couvre toutes circonstances que le fonctionnaire amené à se prononcer sur une affaire doit raisonnablement comprendre comme étant de nature à apparaître, aux yeux de tiers, comme susceptible d’affecter son indépendance en la matière. Toutefois, des indications précises, permettant de conclure que l’indépendance du fonctionnaire en cause pourrait être compromise, doivent être données.
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31 That objective entails that migrant workers must not lose their right to social security benefits or have the amount of those benefits reduced because they have exercised the right to freedom of movement conferred on them by the Treaty (Reichling, cited above, paragraph 24) and that the rule on the aggregation of insurance, residence or employment periods is aimed at ensuring that exercise of the right, conferred by the Treaty, to freedom of movement does not have the effect of depriving a worker of social security advantages to which he would have been entitled if he had spent his working life in only one Member State (Moscato, cited above, paragraph 28).
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24 That objective entails that migrant workers must not lose their right to social security benefits or have the amount of those benefits reduced because they have exercised the right to freedom of movement conferred on them by the Treaty.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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65. Finally, the application of the national rules of a Member State to service providers established in another Member State must be appropriate for ensuring attainment of the objective they pursue and must not go beyond what is necessary for that purpose (see, in particular, Säger , paragraph 15; Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32, and Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37).
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15 Having regard to the particular characteristics of certain provisions of services, specific requirements imposed on the provider, which result from the application of rules governing those types of activities, cannot be regarded as incompatible with the Treaty. However, as a fundamental principle of the Treaty, the freedom to provide services may be limited only by rules which are justified by imperative reasons relating to the public interest and which apply to all persons or undertakings pursuing an activity in the State of destination, in so far as that interest is not protected by the rules to which the person providing the services is subject in the Member State in which he is established. In particular, those requirements must be objectively necessary in order to ensure compliance with professional rules and to guarantee the protection of the recipient of services and they must not exceed what is necessary to attain those objectives (see, most recently, the judgments in Cases C-154/89 Commission v France [1991] ECR I-659, C-180/89 Commission v Italy [1991] ECR I-709 and C-198/89 Commission v Greece [1991] ECR I-727.
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28 FURTHERMORE , IN THE COURSE OF THE ORAL ARGUMENT BEFORE THE COURT IT BECAME CLEAR THAT A MANUFACTURER MAY DECIDE NOT TO INCREASE HIS PRICES IMMEDIATELY BY THE AMOUNT AUTHORIZED . BY MAINTAINING HIS PRICES UNCHANGED THAT MANUFACTURER MAY THUS COMPETE WITH FIRMS WHICH HAVE DECIDED TO INCREASE THEIRS .
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44. Nevertheless, as is apparent from the provisions of Clause 5(1) of the Framework Agreement, national legislation which allows a succession of fixed-term contracts without requiring objective grounds or laying down a maximum total duration of successive fixed-term contracts or limiting the number of renewals thereof can be regarded as complying with the Framework Agreement if the domestic legal order of the Member State concerned contains another effective equivalent measure to prevent and, where relevant, penalise the misuse of successive fixed-term contracts (see, to that effect, Adeneler and Others , paragraph 105; Marrosu and Sardino , paragraph 49; and Vassallo , paragraph 34).
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105. Accordingly, the answer to the fourth question must be that, in circumstances such as those of the main proceedings, the Framework Agreement is to be interpreted as meaning that, in so far as domestic law of the Member State concerned does not include, in the sector under consideration, any other effective measure to prevent and, where relevant, punish the misuse of successive fixed-term contracts, the Framework Agreement precludes the application of national legislation which, in the public sector alone, prohibits absolutely the conversion into an employment contract of indefinite duration of a succession of fixed-term contracts that, in fact, have been intended to cover ‘fixed and permanent needs’ of the employer and must therefore be regarded as constituting an abuse.
Question 1
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91. The arguments put forward in this respect by the German Government were rejected by several decisions of the Commission, such as Commission Decision 94/266/EC of 21 December 1993 on the proposal to award aid to SST-Garngesellschaft mbH, Thüringen (OJ 1994 L 114, p. 21), the Mosel I decision, and Commission Decision 94/1074/EC of 5 December 1994 on the German authorities ' proposal to award aid to Textilwerke Deggendorf GmbH, Thüringen (OJ 1994 L 386, p. 13).
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45. ‘Disputes of a financial character’ within the meaning of that provision include not only actions brought by staff members seeking to have an institution held liable, but also all those seeking payment by an institution to a staff member of a sum which he considers to be due to him under the Staff Regulations or other measure governing their working relations (see, to that effect, Case C‑135/06 P Weißenfels v Parliament [2007] ECR I‑12041, paragraph 65).
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65. Constituent des «litiges à caractère pécuniaire» au sens de cette disposition non seulement les actions en responsabilité dirigées par les agents contre une institution, mais aussi tous ceux qui tendent au versement par une institution à un agent d’une somme qu’il estime lui être due en vertu du statut ou d’un autre acte qui régit leurs relations de travail (voir, en ce sens, arrêt du 2 octobre 2001, BEI/Hautem, C‑449/99 P, Rec. p. I-6733).
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35 However, since Brown, the Treaty on European Union has introduced citizenship of the European Union into the EC Treaty and added to Title VIII of Part Three a new chapter 3 devoted to education and vocational training. There is nothing in the amended text of the Treaty to suggest that students who are citizens of the Union, when they move to another Member State to study there, lose the rights which the Treaty confers on citizens of the Union. Furthermore, since Brown, the Council has also adopted Directive 93/96, which provides that the Member States must grant right of residence to student nationals of a Member State who satisfy certain requirements.
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51 Finally, as the Court held in paragraph 20 of Kalfelis, whilst it is true that disadvantages arise from different aspects of the same dispute being adjudicated upon by different courts, it must be pointed out, on the one hand, that a plaintiff is always entitled to bring his action in its entirety before the courts for the domicile of the defendant and, on the other, that Article 22 of the Convention allows the first court seised, in certain circumstances, to hear the case in its entirety provided that there is a connection between the actions brought before the different courts.
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20 Whilst it is true that disadvantages arise from different aspects of the same dispute being adjudicated upon by different courts, it must be pointed out, on the one hand, that a plaintiff is always entitled to bring his action in its entirety before the courts for the domicile of the defendant and, on the other, that Article 22 of the Convention allows the first court seised, in certain circumstances, to hear the case in its entirety provided that there is a connection between the actions brought before the different courts .
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18 QUE , DES LORS , UNE CHARGE PECUNIAIRE , FUT-ELLE MINIME , UNILATERALEMENT IMPOSEE , QUELLES QUE SOIENT SON APPELLATION ET SA TECHNIQUE , ET FRAPPANT LES MARCHANDISES NATIONALES OU ETRANGERES A RAISON DU FAIT QU ' ELLES FRANCHISSENT LA FRONTIERE , LORSQU ' ELLE N ' EST PAS UN DROIT DE DOUANE PROPREMENT DIT , CONSTITUE UNE TAXE D ' EFFET EQUIVALENT , AU SENS DES ARTICLES 9 ET 12 DU TRAITE , ALORS MEME QU ' ELLE NE SERAIT PAS PERCUE AU PROFIT DE L ' ETAT , QU ' ELLE N ' EXERCERAIT AUCUN EFFET DISCRIMINATOIRE OU PROTECTEUR , ET QUE LE PRODUIT IMPOSE NE SE TROUVERAIT PAS EN CONCURRENCE AVEC UNE PRODUCTION NATIONALE ;
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79. In the fifth place, the appellant submits that the General Court failed to take account of the fact that the appellant was the victim, and treated it in the same way as the other undertakings, taking account only of sales volumes and not of its culpability. It must however be noted that, in paragraph 72 of the judgment under appeal, the General Court recalled the case-law according to which pressure which is brought to bear on an undertaking does not absolve it from its responsibility in participating in an infringement (see, to that effect, Dansk Rørindustri and Others v Commission , paragraphs 369 and 370; Case T‑17/99 KE KELIT v Commission [2002] ECR II‑1647, paragraph 50; and Case T‑62/02 Union Pigments v Commission [2005] ECR II‑5057, paragraph 63). It follows that this criticism is based on a false premiss, that is that the appellant is a victim and not a responsible participant in the infringement.
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369. However, the Court of First Instance cannot be criticised for having rejected that complaint, on the ground that LR A/S could have reported the pressure to the competent authorities and lodged a complaint with the Commission under Article 3 of Regulation No 17 rather than participate in the cartel.
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13 It follows from that case-law that an orphaned child of a migrant worker cannot be deprived of an entitlement to higher benefits available to him under the legislation of a Member State other than that in which he resides. However, he cannot be allowed rights greater than those he would be able to claim under the legislation of that other Member State if he were resident there. Such a result can be brought about only if the institution of the latter Member State can set off against the benefits it must provide all the benefits paid in the other Member State of residence for the maintenance of the orphan, regardless of their nature or designation (see Case C-188/90, paragraph 15).
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23. Furthermore, such a system of control is capable in particular of being justified in light of the fact that it is easier to check the substantive conditions, and to carry out the detailed investigations which that entails, in the State of origin, having regard in particular to both considerations of language and considerations related to access to information concerning the situation of foreign nationals wishing to become established in a Member State (see Barkoci and Malik , paragraphs 65 and 66).
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65 In addition, such a system of control involves carrying out detailed investigations which, particularly on grounds of language, it would be difficult for an immigration officer to conduct at the point of entry into the United Kingdom. Consequently, the requirement that verification of the substantive conditions be carried out in the Czech Republic allows easier access to information concerning the situation of Czech nationals wishing to become established in the United Kingdom.
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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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34. However, it must also be held that headings 0703 and 0712 of the CN do not include any reference to preservation as a classification criterion, from which it must be concluded that the length of time for which a product is preserved has itself no effect on its classification for customs purposes (see, by analogy, Case 40/88 Weber [1989] ECR 1395, paragraph 16).
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16 In this case, subheading 04.02 A II ( b ) 1 of the Common Customs Tariff makes no reference to the manufacturing process as a criterion for classification, from which it must be concluded that the process whereby the product at issue in the main proceedings was manufactured has no effect on its classification for customs purposes .
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76. First, while it is true, as the Court stated in paragraph 67 of the judgment in Adeneler and Others , that, according to paragraph 7 of the general considerations in the framework agreement, the signatory parties to that agreement took the view that ‘the use of fixed-term employment contracts founded on objective reasons is a way to prevent abuse’, the fact remains that the construction advocated by the Commission effectively introduces a hierarchy between the various measures referred to in Clause 5(1) of the framework agreement, whereas the terms of that provision themselves unequivocally show that the various measures envisaged are intended to be ‘equivalent’.
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43. As a preliminary point, it should be pointed out that Title VI of the Sixth Directive contains specific provisions for determination of the place of taxable transactions, namely Article 8 for supplies of goods and Article 9 for supplies of services. The objective pursued by those provisions within the context of the general scheme of the Sixth Directive, as the seventh recital in the preamble implies, is designed to secure the rational delimitation of the respective areas covered by national VAT rules by determining in a uniform manner the place where supplies of goods and supplies of services are deemed to be provided for tax purposes. The object of those provisions is also to avoid conflicts of jurisdiction which may result in double taxation or non-taxation (see, by analogy, Case 168/84 Berkholz [1985] ECR 2251, paragraph 14; Case C‑452/03 RAL (Channel Islands) and Others [2005] ECR I‑3947, paragraph 23; and Case C‑58/04 Köhler [2005] ECR I‑8219, paragraph 22).
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22. Therefore, Article 8(1)(c) of the Sixth Directive seeks to determine in a uniform manner the place of taxation of supplies of goods made on board ships, aircraft or trains in the course of a journey starting and ending on Community territory and limits taxation, during the part of the transport of passengers effected within the Community, to the point of departure of the means of transport. The result is a simplified scheme of taxation which avoids, throughout the intra-Community journey, the successive application of the national VAT systems of the Member States through which the journey is made and, therefore, conflicts concerning tax jurisdiction between Member States.
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50. Since the operation of the branches is subject to those conditions, the legislation at issue in the main actions cannot be regarded as inconsistent.
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24. That consideration is particularly important in the field of education in view of the aims pursued by Article 6(e) TFEU and the second indent of Article 165(2) TFEU, namely, inter alia, encouraging mobility of students and teachers (see D’Hoop , paragraph 32; Case C-147/03 Commission v Austria [2005] ECR I‑5969, paragraph 44; Morgan and Bucher , paragraph 27; and Prinz and Seeberger , paragraph 29).
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32 That consideration is particularly important in the field of education. The objectives set for the activities of the Community include, in Article 3(p) of the EC Treaty (now, after amendment, Article 3(1)(q) EC), a contribution to education and training of quality. That contribution must, according to the second indent of Article 126(2) of the EC Treaty (now the second indent of Article 149(2) EC) be aimed, inter alia, at encouraging mobility of students and teachers.
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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 pointed out that, in accordance with the case-law of the Court, the terms used to specify the exemptions referred to in Article 13 of the Sixth Directive constitute independent concepts of EU law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (Case C‑350/10 Nordea Pankki Suomi EU:C:2011:532, paragraph 22 and the case-law cited), and that those terms are to be interpreted strictly, since those exemptions constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (Case 348/87 Stichting Uitvoering Financiële Acties EU:C:1989:246, paragraph 13, and Case C‑540/09 Skandinaviska Enskilda Banken EU:C:2011:137, paragraph 20).
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22. It must be borne in mind that, in accordance with the case-law of the Court, the exemptions referred to in Article 13 of the Sixth Directive constitute independent concepts of European Union law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (see Skandinaviska Enskilda Banken , paragraph 19, and the case-law cited).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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39. However, the concept of aid does not encompass measures creating different treatment of undertakings in relation to charges where that difference is attributable to the nature and general scheme of the system of charges in question (see, in particular, Case C-351/98 Spain v Commission [2002] ECR I-8031, paragraph 42, and Case C-159/01 Netherlands v Commission [2004] ECR I-0000, paragraph 42).
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42. It must be stated in that regard that the concept of aid has indeed been interpreted by the Court as not covering measures which differentiate between undertakings in relation to charges where that differentiation is the result of the nature and general scheme of the system of levies in question (see, to that effect, Case 173/73 Italy v Commission [1974] ECR 709, paragraph 33, Joined Cases C-72/91 and C-73/91 Sloman Neptun [1993] ECR I-887, paragraph 21, Case C-390/98 Banks [2001] ECR I-6117, paragraph 33, and Case C-351/98 Spain v Commission [2002] ECR I-8031, paragraph 43).
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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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69. Although the criterion of nutritional need of the population of a Member State can play a role in its detailed assessment of the risk which the addition of nutrients to foodstuffs may pose for public health, the absence of such a need cannot, by itself, justify a total prohibition, on the basis of Article 36 of the Treaty, of the marketing of foodstuffs lawfully manufactured and/or marketed in other Member States (see Commission v Denmark , paragraph 54; and Commission v France , paragraphs 59 and 60).
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59. As regards the French Government ' s argument based on this absence of a nutritional need necessitating the addition of nutrients to the foodstuffs concerned, it must be noted that where there is scientific uncertainty the criterion of nutritional need of the population of a Member State can play a role in the latter ' s detailed assessment of the risk which the addition of nutrients to foodstuffs may pose for public health.
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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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50 A Member State is therefore in a position to check whether contributions have actually been paid by one of its taxpayers to an institution coming under the authority of another Member State. In addition, there is nothing to prevent the tax authorities concerned from requiring the taxpayer to provide such proof as they may consider necessary in order to determine whether the conditions for deducting contributions provided for in the legislation at issue have been met and, consequently, whether to allow the deduction requested (see, to that effect, Bachmann, paragraphs 18 and 20 and Commission v Belgium, paragraphs 11 and 13).
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11 As regards the effectiveness of fiscal control, it is to be observed that Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (Official Journal 1977 L 336, p. 15, hereinafter referred to as "the Directive") may be invoked by a Member State in order to check whether payments have been made in another Member State where, as in this case, it is necessary, in order correctly to assess the income tax, to take account of those payments (Article 1(1)).
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42. En troisième lieu, les difficultés auxquelles serait confrontée l’ACICL peuvent être surmontées par d’autres mécanismes visant à compenser les difficultés financières de celle-ci, comme l’obtention d’une aide juridictionnelle (voir, en ce sens, arrêt du 22 décembre 2010, DEB, C‑279/09, Rec. p. I‑13849, points 59 et 60, ainsi que, par analogie, arrêt Agrokonsulting-04, précité, point 50).
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En ce qui concerne la deuxième branche du deuxième moyen du pourvoi, il convient de rappeler qu’il résulte de la jurisprudence de la Cour que la notion de « pratique concertée », au sens l’article 81, paragraphe 1, CE, vise une forme de coordination entre entreprises qui, sans avoir été poussée jusqu’à la réalisation d’une convention proprement dite, substitue sciemment une coopération pratique entre elles aux risques de la concurrence (arrêt du 4 juin 2009, T-Mobile Netherlands e.a., C‑8/08, EU:C:2009:343, point 26).
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26. With regard to the definition of a concerted practice, the Court has held that such a practice is a form of coordination between undertakings by which, without it having been taken to the stage where an agreement properly so-called has been concluded, practical cooperation between them is knowingly substituted for the risks of competition (see Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 26, and Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraph 63).
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16 Ms Grant submits, first, that such a refusal constitutes discrimination directly based on sex. She submits that her employer's decision would have been different if the benefits in issue in the main proceedings had been claimed by a man living with a woman, and not by a woman living with a woman.
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111 In the area of external relations, the Court has held that the Community's tasks and the objectives of the Treaty would be compromised if Member States were able to enter into international commitments containing rules capable of affecting rules adopted by the Community or of altering their scope (see Opinion 2/91, paragraph 11, and also, to that effect, the AETR judgment, paragraphs 21 and 22).
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22 IF THESE TWO PROVISIONS ARE READ IN CONJUNCTION, IT FOLLOWS THAT TO THE EXTENT TO WHICH COMMUNITY RULES ARE PROMULGATED FOR THE ATTAINMENT OF THE OBJECTIVES OF THE TREATY, THE MEMBER STATES CANNOT, OUTSIDE THE FRAMEWORK OF THE COMMUNITY INSTITUTIONS, ASSUME OBLIGATIONS WHICH MIGHT AFFECT THOSE RULES OR ALTER THEIR SCOPE .
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46 Mr Lafuente Nieto proposes an affirmative response, maintaining that, in accordance with Article 45(1) of the regulation, aggregation of insurance periods must never exceed what is necessary and that the application of Article 46(2)(c) to that effect has been recognized in several judgments of the Court (see, in particular, Joined Cases C-90/91 and C-91/91 Office National des Pensions v Di Crescenzo and Casagrande [1992] ECR I-3851).
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42
It should be noted first of all that, under Article 6(3) of Directive 92/43, an appropriate assessment of the implications of a plan or project for the site concerned implies that, prior to its approval, all aspects of that plan or project which can, by themselves or in conjunction with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such an effect (see to that effect, in particular, judgments of 24 November 2011, Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 99, and of 14 January 2016, Grüne Liga Sachsen and Others, C‑399/14, EU:C:2016:10, paragraphs 49 and 50).
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49
According to settled case-law, the appropriate assessment of the implications for the site that must be carried out pursuant to Article 6(3) implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field (see, to that effect, judgments in Commission v France, C‑241/08, EU:C:2010:114, paragraph 69; Commission v Spain, C‑404/09, EU:C:2011:768, paragraph 99, and Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraphs 112 and 113).
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6 THESE PROVISIONS IMPOSE ON MEMBER STATES A PRECISE OBLIGATION WHICH DOES NOT REQUIRE THE ADOPTION OF ANY FURTHER MEASURE ON THE PART EITHER OF THE COMMUNITY INSTITUTIONS OR OF THE MEMBER STATES AND WHICH LEAVES THEM, IN RELATION TO ITS IMPLEMENTATION, NO DISCRETIONARY POWER .
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36. It is clear in this respect from the case-law that the mere exercise of the right of ownership by its holder cannot, in itself, be regarded as constituting an economic activity (see Case C-155/94 Wellcome Trust [1996] ECR I‑3013, paragraph 32).
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32 However, it is also clear from that case-law that mere exercise of the right of ownership by its holder cannot, in itself, be regarded as constituting an economic activity. The Court has so held with regard to financial holdings acquired by holding companies in other undertakings (see, in particular, the judgments in Polysar Investments Netherlands, cited above, paragraph 13, and in Case C-333/91 Sofitam v Ministre chargé du Budget [1993] ECR I-3513, paragraph 12).
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104. Accordingly, Article 9(1) of the Framework Directive provides that the Member States are to ensure that the allocation and assignment of radio frequencies by the national regulatory authorities are based on objective, transparent, non‑discriminatory and proportionate criteria.
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41. In that connection, it must be borne in mind that, according to settled case-law, the choice of the legal basis for a Community measure must be based on objective factors which are amenable to judicial review and include in particular the aim and content of the measure (see Case 45/86 Commission v Council [1987] ECR 1493, paragraph 11; Case C-300/89 Commission v Council ( Titanium Dioxide ) [1991] ECR I-2867, paragraph 10; Case C-268/94 Portugal v Council [1996] ECR I-6177, paragraph 22; and Case C-176/03 Commission v Council [2005] ECR I‑0000, paragraph 45).
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22 In the context of the organization of the powers of the Community, the choice of the legal basis for a measure must be based on objective factors which are amenable to judicial review. Those factors include in particular the aim and content of the measure (see in particular Case C-300/89 Commission v Council [1991] ECR I-2867, paragraph 10, and Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 25).
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71. It follows that, for the purposes of the exemption provided for in Article 13A(1)(b) of the Sixth Directive, a Member State may not validly make recognition of establishments subject to a condition requiring that paramedical services provided by those establishments be given under medical supervision.
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17
The concept of ‘export obligations to be fulfilled during the current marketing year’, the tonnage of which, pursuant to Article 33(1)(d) of Regulation No 2038/1999, constitutes the denominator of the ratio making it possible to calculate the average loss, has the effect of covering any quantity of products coming under Article 33 of that regulation which is intended for export from the European Community, and the question whether or not the quantities of products for export attract export refunds is not relevant in the light of that concept (see, to that effect, judgment of 8 May 2008, Zuckerfabrik Jülich and Others, C‑5/06 and C‑23/06 to C‑36/06, EU:C:2008:260, paragraphs 49 to 51).
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49. In the context of the exports referred to in Regulation No 1260/2001, it is necessary, in the absence of specific reasons to the contrary, to interpret the concept of ‘export obligations to be fulfilled during the current marketing year’ which appears in Article 15(1)(d) of that regulation in a manner which is consistent with Article 22(1) of that regulation, which refers to the export obligation.
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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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55. It must therefore be held that suspension, under Article 10(1)(a) of Regulation No 574/72, of the right to family benefits due under the legislation of a Member State according to which the acquisition of the right to those benefits is not subject to conditions of insurance, employment or self-employment, such as the right under Paragraph 62 of the EStG, does not take place if the benefits were not paid in the other Member State concerned, on the ground that not all the conditions required by the legislation of that Member State for those benefits to be actually drawn were met, including the condition that a prior application must have been made (see, by analogy, Ragazzoni , paragraph 12; Salzano , paragraph 11; Ferraioli , paragraph 15; and Kracht , paragraph 11).
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15 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT THERE IS NO SUSPENSION UNDER ARTICLE 76 OF REGULATION NO 1408/71 OF ENTITLEMENT TO FAMILY ALLOWANCES PAYABLE IN PURSUANCE OF ARTICLE 73 OF THAT REGULATION IN THE MEMBER STATE OF EMPLOYMENT OF ONE OF THE PARENTS WHEN THE OTHER PARENT RESIDES WITH THE CHILDREN IN ANOTHER MEMBER STATE AND PURSUES THERE A PROFESSIONAL OR TRADE ACTIVITY BUT DOES NOT RECEIVE FAMILY ALLOWANCES FOR THE CHILDREN ON THE GROUND THAT NOT ALL THE CONDITIONS LAID DOWN BY THE LEGISLATION OF THAT MEMBER STATE FOR THE RECEIPT OF SUCH ALLOWANCES ARE SATISFIED .
QUESTION 2
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28. As regards the principle of effectiveness, the Court has stated that it is compatible with European Union law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty which protects both the individual and the authorities concerned. Such time-limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by European Union law. In that regard, a national limitation period of three years appears to be reasonable (see, to that effect, Aprile , paragraph 19, and Case C‑445/06 Danske Slagterier [2009] ECR I‑0000, paragraph 32 and case-law cited).
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20. In the context of the cooperation established by Article 267 TFEU, it is for the national courts to determine whether the taxable person makes a single supply in a particular case and to make all definitive findings of fact in that regard (see, to that effect, CPP , paragraph 32; Part Service , paragraph 54; Bog and Others , paragraph 55; and order in Case C-117/11 Purple Parking and Airparks Services [2012] ECR, paragraph 32). However, it is for the Court to provide the national courts with all the guidance as to the interpretation of European Union law which may be of assistance in adjudicating on the case pending before them ( Levob Verzekeringen and OV Bank , paragraph 23).
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32 The answer to the first two questions must therefore be that it is for the national court to determine, in the light of the above criteria, whether transactions such as those performed by CPP are to be regarded for VAT purposes as comprising two independent supplies, namely an exempt insurance supply and a taxable card registration service, or whether one of those two supplies is the principal supply to which the other is ancillary, so that it receives the same tax treatment as the principal supply.
Question 4
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S’agissant des arguments, soulevés par Dextro Energy dans le cadre du troisième moyen, critiquant les motifs pour lesquels la Commission a adopté le règlement 2015/8, il importe de rappeler qu’il résulte de l’article 256, paragraphe 1, second alinéa, TFUE, et de l’article 58, premier alinéa, du statut de la Cour de justice de l’Union européenne, ainsi que de l’article 168, paragraphe 1, sous d), et de l’article 169, paragraphe 2, du règlement de procédure de la Cour qu’un pourvoi doit identifier avec précision les points de motifs critiqués de l’arrêt dont l’annulation est demandée et indiquer de façon précise les arguments juridiques qui soutiennent de manière spécifique cette demande, sous peine d’irrecevabilité du pourvoi ou du moyen concerné (voir arrêt du 3 septembre 2015, Inuit Tapiriit Kanatami e.a./Commission, C‑398/13 P, EU:C:2015:535, point 53).
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30. With regard, first of all to the objective pursued by Regulation No 1782/2003, the Court has previously held that it sought to facilitate the progressive transition from production aid to producer aid by, inter alia, the introduction of a decoupled income support scheme for each farm (see, to that effect, judgment in Panellinios Sindesmos Viomikanion Metapiisis Kapnou , C‑373/11, EU:C:2013:567, paragraph 17). It is clear from recital 2 in the preamble to Regulation No 73/2009 that it pursues the same objective.
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17. Regulation No 1782/2003, as set out at recital 24 thereof, sought to facilitate the transition from production aid to producer aid by the gradual reduction of direct payments and the introduction of an income support scheme decoupled from production, namely the scheme for single payments determined on the basis of previous entitlements within a reference period, in order to make farmers in the European Union more competitive.
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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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28. The Court has repeatedly held that national legislation which applies in such circumstances comes within the substantive scope of the provisions of the EC Treaty on freedom of establishment (see, inter alia, Baars , paragraphs 21 and 22; Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 31; and Glaxo Wellcome , paragraph 47).
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22 It is clear from the second paragraph of Article 52 of the Treaty that freedom of establishment includes the right to set up and manage undertakings, in particular companies or firms, in a Member State by a national of another Member State. So, a national of a Member State who has a holding in the capital of a company established in another Member State which gives him definite influence over the company's decisions and allows him to determine its activities is exercising his right of establishment.
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38 Such is the situation in the present case because, since the Court of Justice has found that the Commission had not adopted a decision on the request for advances and, moreover, could not do so, the pleas directed against the decision of 21 March 1990, cited above, in so far as it constitutes, in Finsider' s view, a rejection of its request for advances, are devoid of purpose.
The sixth plea in law
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20. Moreover, contrary to the Irish Government’s contention, a young child can take advantage of the rights of free movement and residence guaranteed by Community law. The capacity of a national of a Member State to be the holder of rights guaranteed by the Treaty and by secondary law on the free movement of persons cannot be made conditional upon the attainment by the person concerned of the age prescribed for the acquisition of legal capacity to exercise those rights personally (to that effect, see, in particular, in the context of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, Series I, 1968 (II), p. 475), Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 21, and Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraphs 52 to 63, and, in relation to Article 17 EC, Garcia Avello , paragraph 21). Moreover, as the Advocate General made clear in points 47 to 52 of his Opinion, it does not follow either from the terms of, or from the aims pursued by, Articles 18 EC and 49 EC and Directives 73/148 and 90/364 that the enjoyment of the rights with which those provisions are concerned should be made conditional upon the attainment of a minimum age.
Directive 73/148
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58 As regards, second, the R case, the children concerned enjoy, as members of the family of a worker who is a national of one Member State and who is employed in the territory of another Member State, a right of residence and a right to pursue their education under Articles 10 and 12 of Regulation No 1612/68.
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48 In contrast, the trade mark proprietor may oppose the repackaging if it is based solely on the parallel importer's attempt to secure a commercial advantage (see, to that effect, Upjohn, paragraph 44).
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29 As regards, first of all, the question whether the value of the contract in question exceeds the threshold laid down in Directives 92/50 and 93/36, it should be borne in mind that Article 177 of the Treaty is based on a clear separation of functions between the national courts and the Court of Justice, which means that, when ruling on the interpretation or validity of Community provisions, the Court of Justice is empowered to do so only on the basis of the facts which the national court puts before it (see, in particular, Case C-30/93 AC-ATEL Electronics Vertriebs v Hauptzollamt München-Mitte [1994] ECR I-2305, paragraph 16).
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16 On that point, it should be borne in mind that Article 177 of the Treaty is based on a clear separation of functions between the national courts and the Court of Justice, so that, when ruling on the interpretation or validity of Community provisions, the latter is empowered to do so only on the basis of the facts which the national court puts before it (see the judgment in Case 104/77 Oehlschlaeger v Hauptzollamt Emmerich [1978] ECR 791, point 4).
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30. In accordance with that principle, which applies where the authorities are minded to adopt a measure which will adversely affect an individual ( Sopropé , EU:C:2008:746, paragraph 36), the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision ( Sopropé , EU:C:2008:746, paragraph 37).
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31 First, it is solely for the national court hearing the dispute, which must assume responsibility for the order to be made, to assess the need for a preliminary ruling so as to enable it to give its judgment. Consequently, where the question referred to it concerns a provision which it has jurisdiction to interpret, the Court of Justice is, in principle, bound to give a ruling (see, to that effect, Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraphs 34 and 35, and Case C-231/89 Gmurzynska-Bscher [1990] ECR I-4003, paragraphs 19 and 20).
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20 Consequently, where the questions put by national courts concern the interpretation of a provision of Community law, the Court is, in principle, bound to give a ruling .
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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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40. With regard to the starting point, it follows from the wording of Paragraph 15(4) of the AGG that, ‘in the case of a job application, … the time-limit commences on receipt of the rejection’ of the job application. In such a situation, there is a risk that employees will have no way of determining whether they have been discriminated against, or, if so, to what extent, within a period of two months from rejection of their application, inter alia because of machinations on the part of the employer, which would make it impossible for them to bring the action provided for in the Directive (see, to that effect, Levez , paragraph 31).
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31 Where an employer provides an employee with inaccurate information as to the level of remuneration received by employees of the opposite sex performing like work, the employee so informed has no way of determining whether he is being discriminated against or, if so, to what extent. Consequently, by relying on the rule at issue in that situation, the employer would be able to deprive his employee of the means provided for by the Directive of enforcing the principle of equal pay before the courts (see, mutatis mutandis, Case 109/88 Danfoss [1989] ECR 3199, paragraph 13).
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32. When Member States establish or accept a particular method of rounding, they are obliged to observe the principles governing the common system of VAT, such as those of fiscal neutrality and proportionality. It does not, however, follow from observance of those recognised principles of the Community legal system that the question as to which specific method of rounding should be used is itself within the scope of Community law.
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15
As the General Court recalled in paragraph 26 of the judgment under appeal, persons other than those to whom a decision is addressed may claim to be individually concerned within the meaning of the fourth paragraph of Article 263 TFEU only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, 107; of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 72; and of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 46).
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72. According to that case-law, natural or legal persons satisfy the condition of individual concern only if the contested act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed (see Plaumann v Commission ; Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 36; and Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’ v Commission [2011] ECR I‑4727, paragraph 52).
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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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34. On the other hand, the term ‘employee’ for the purpose of EU law must itself be defined according to objective criteria that characterise the employment relationship, taking into consideration the rights and responsibilities of the persons concerned. In that connection, it is settled case-law that the essential feature of that relationship is that for a certain period of time one person performs services for and under the direction of another person in return for which he receives remuneration (see judgments in N ., C‑46/12, EU:C:2013:97, paragraph 40 and the case-law cited, and Haralambidis , C‑270/13, EU:C:2014:2185, paragraph 28).
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28. Any person who pursues activities that are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must this be regarded as a ‘worker’ within the meaning of Article 45 TFEU. According to the case-law of the Court, the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see judgments in Lawrie-Blum , 66/85, EU:C:1986:284, paragraph 17, and Petersen , C‑544/11, EU:C:2013:124, paragraph 30).
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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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81. In view of that provision, there is no reason to find that a word like " Postkantoor" is not, in respect of certain goods or services, capable of fulfilling the essential function of a trade mark, which is to guarantee the identity of the origin of the marked goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin (see, in particular, Case C-39/97 Canon [1998] ECR I-5507, paragraph 28, Merz & Krell , paragraph 22, and Libertel , paragraph 62). Accordingly, an interpretation of Article 2 of the Directive appears not to be useful for the purposes of deciding the present case.
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22 From that point of view, the essential function of the trade mark is to guarantee the identity of the origin of the marked goods or service to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the goods or service from others which have another origin (see, inter alia, Case C-39/97 Canon [1998] ECR I-5507, paragraph 28).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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22. As the Court has held, it results from the wording of that provision that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time-limits to which such submission is subject under the provisions of Regulation No 40/94 and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced late ( OHIM v Kaul , paragraph 42, and Case C‑621/11 P New Yorker SHK Jeans v OHIM [2013] ECR I‑0000, paragraph 22).
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42. Contrary to OHIM’s submission, it results from such wording that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time‑limits to which such submission is subject under the provisions of Regulation No 40/94 and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced late.
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24. It should be remembered that the Convention must be interpreted independently, by reference to its system and objectives (see, in particular, Case C-89/91 Shearson Lehman Hutton [1993] ECR I-139, paragraph 13; Case C-295/95 Farrell [1997] ECR I-1683, paragraphs 12 and 13; Case C-269/95 Benincasa [1997] ECR I-3767, paragraph 12, and Baten , cited above, paragraph 28).
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44
The Court has explained that the Member States are entitled, while complying with EU law, to define the scope and organisation of their services of general economic interest. They may in particular take account of objectives pertaining to their national policy (see, to that effect, judgments of 21 September 1999, Albany, C‑67/96, EU:C:1999:430, paragraph 104, and 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 29).
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29. In that context, Member States are entitled, while complying with the law of the Union, to define the scope and the organisation of their services in the general economic interest. In particular, they may take account of objectives pertaining to their national policy (see, to that effect, Albany , paragraph 104).
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97. It follows that Article 95 EC constitutes the only appropriate legal basis for the Directive and that it is incorrect for it to cite Article 133 EC also as a legal basis.
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46. Such penalties must not, however, go further than is necessary to attain those objectives (see, to that effect, Joined Cases C-95/07 and C-96/07 Ecotrade [2008] ECR I-3457, paragraphs 65 to 67, and Case C-284/11 EMS-Bulgaria Transport [2012] ECR, paragraph 67).
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67. A reassessment and recovery practice, such as that at issue in the main proceedings, which penalises non-compliance on the part of the taxable person 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 such obligations within the meaning of Article 22(7) of the Sixth Directive, since Community law does not prevent Member States from imposing, where necessary, a fine or a financial penalty proportionate to the seriousness of the offence in order to sanction a failure to comply with those obligations.
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27. The deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever the purpose or results of those activities, provided that they are themselves subject to VAT (see Case 268/83 Rompelman [1985] ECR 655, paragraph 19; Case C-37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 15; Gabalfrisa and Others , paragraph 44; Case C-32/03 Fini H [2005] ECR I-1599, paragraph 25; Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraph 78; Kittel and Recolta Recycling , paragraph 48; Case C-438/09 Dankowski [2010] ECR I-14009, paragraph 24; and Mahagében and Dávid , paragraph 39).
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43 The Court has also held that, even though the Convention is intended to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals, it is not permissible to achieve that aim by undermining the right to a fair hearing (Case 49/84 Debaecker and Plouvier v Bouwman [1985] ECR 1779, paragraph 10).
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10 FIRST OF ALL , IT SHOULD BE STATED THAT THERE IS NOTHING IN THE WORDING OF ARTICLE 27 ( 2 ) - WHICH DOES NOT LAY DOWN ANY CONDITION AS REGARDS THE DEFENDANT ' S PLACE OF RESIDENCE - TO SUGGEST THAT THE QUESTION ASKED BY THE HOGE RAAD SHOULD BE ANSWERED IN THE AFFIRMATIVE . ALTHOUGH THE CONVENTION IS , AS IS CLEAR FROM THE PREAMBLE , INTENDED TO ' SECURE THE SIMPLIFICATION OF FORMALITIES GOVERNING THE RECIPROCAL RECOGNITION AND ENFORCEMENT OF JUDGMENTS OF COURTS OR TRIBUNALS ' , THAT AIM CANNOT , ACCORDING TO A SERIES OF DECISIONS OF THE COURT , BE ATTAINED BY UNDERMINING IN ANY WAY THE RIGHT TO A FAIR HEARING .
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41. Il importe, d’emblée, de rappeler que, en vertu d’une jurisprudence constante, en l’absence de mesures d’unification ou d’harmonisation adoptées par l’Union, les États membres demeurent compétents pour déterminer les critères d’imposition des revenus et de la fortune en vue d’éliminer, le cas échéant par voie conventionnelle, les doubles impositions. Dans ce contexte, les États membres sont libres, dans le cadre de conventions bilatérales tendant à éviter les doubles impositions, de fixer les facteurs de rattachement aux fins de la répartition de la compétence fiscale (voir, notamment, arrêts de Groot, précité, point 93; du 16 octobre 2008, Renneberg, C-527/06, Rec. p. I‑7735, point 48, et du 28 février 2013, Beker, C‑168/11, point 32).
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50
It follows from the foregoing that the legislation at issue in the main proceedings comes within the scope of Article 7(2) of Directive 2000/78 and, as such, pursues an objective covered by EU law, for the purposes of the Court’s settled case-law adopted in order to determine whether such a national measure falls within the implementation of EU law within the meaning of Article 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, judgments of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraphs 22 and 25 and the case-law cited, and of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 37).
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25. In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some of the points to be determined are whether that legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or capable of affecting it (see Case C‑309/96 Annibaldi [1997] ECR I‑7493, paragraphs 21 to 23; Case C‑40/11 Iida [2012] ECR, paragraph 79; and Case C‑87/12 Ymeraga and Others [2013] ECR, paragraph 41).
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55. That argument cannot be accepted.
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41
The fact that Mrs Tolley died before reaching the retirement age is not capable of calling that conclusion into question. Whether or not a person falls within the scope ratione personae of Regulation No 1408/71 does not depend on the materialisation of the contingency covered (see, to that effect, judgment of 10 March 2011, Borger, C‑516/09, EU:C:2011:136, paragraph 30).
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30. Lastly, as regards the fact that, when Ms Borger actually comes to claim her retirement pension, the periods of cover under the retirement insurance scheme in Austria may be taken into account, not in that State, but in Switzerland, it must be held that, as the European Commission submitted in its written observations, that circumstance does not preclude a person from being recognised as having the status of a worker. Whether or not a person comes within the scope ratione personae of Regulation No 1408/71 depends, not on the materialisation of the contingency covered, and thus on the issue of determining in which of the two States those periods will be taken into account at the time of retirement, but rather on the fact of being actually covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation.
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38. Thus, according to settled case-law, derogation under those articles must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority (see Servizi Ausiliari Dottori Commercialisti , cited above, paragraph 46 and the case-law cited), which excludes from being regarded as connected with the exercise of official authority, within the meaning of that derogation, functions that are merely auxiliary and preparatory vis-à-vis an entity which effectively exercises official authority by taking the final decision ( Thijssen , cited above, paragraph 22).
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147. A Member State which seeks to be allowed to grant aid by way of derogation from the Treaty rules has a duty to collaborate with the Commission. In pursuance of that duty, it must in particular provide all the information necessary to enable the Commission to verify that the conditions for the derogation sought are fulfilled (see Case C‑364/90 Italy v Commission [1993] ECR I‑2097, paragraph 20, and Case C‑372/97 Italy v Commission [2004] ECR I‑3679, paragraph 81).
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81. A Member State which seeks to be allowed to grant aid by way of derogation from the Treaty rules has a duty to collaborate with the Commission. In pursuance of that duty, it must in particular provide all the information to enable the Commission to verify that the conditions for the derogation sought are fulfilled (see Case C‑364/90 Italy v Commission [1993] ECR I‑2097, paragraph 20).
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64. Il est de jurisprudence constante qu’une mesure qui est susceptible d’entraver la liberté d’établissement consacrée à l’article 49 TFUE ne saurait être admise que si elle poursuit un objectif légitime compatible avec le traité et est justifiée par des raisons impérieuses d’intérêt général. Encore faut-il, en pareil cas, que son application soit propre à garantir la réalisation de l’objectif ainsi poursuivi et n’aille pas au-delà de ce qui est nécessaire pour atteindre celui-ci (voir, notamment, arrêts de Lasteyrie du Saillant, précité, point 49; du 13 décembre 2005, Marks & Spencer, C‑446/03, Rec. p. I‑10837, point 35, ainsi que du 21 janvier 2010, SGI, C‑311/08, Rec. p. I‑487, point 56).
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30. Article 378(1) of the implementing regulation provides that, without prejudice to the rules on the determination of the place where a customs debt is incurred, laid down in Article 215 of the Customs Code, where a consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity is deemed to have been committed in the Member State to which the office of departure belongs or in the Member State to which the office of transit at the point of entry into the Community belongs, to which a transit advice note has been given, unless within the period laid down in Article 379(2) of the implementing regulation, proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed is furnished (Case C-300/03 Honeywell Aerospace [2005] ECR I-689, paragraph 21).
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21. Article 378(1) of the implementing regulation provides that, without prejudice to the rules on the determination of the place where a customs debt is to be incurred, laid down in Article 215 of the Customs Code, where, as in the main proceedings, a consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity is to be deemed to have been committed in the Member State to which the office of departure belongs or in the Member State to which the office of transit at the point of entry into the Community belongs, to which a transit advice note has been given, unless within the period laid down in Article 379(2) of the implementing regulation, proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed is furnished.
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86. Pour autant que la requérante reproche au Tribunal de ne pas avoir tiré les conséquences nécessaires qu’impliquait le non-respect par ce dernier d’un délai de jugement raisonnable, il convient de relever qu’elle ne prétend pas avoir fourni au Tribunal un quelconque indice de nature à laisser apparaître que cette irrégularité de procédure pouvait avoir une incidence sur la solution du litige dont il était saisi et, à ce titre, pourrait justifier une annulation de la décision litigieuse.
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18 As for the determination of that value, which is the substance of the second question, the Court held in Naturally Yours Cosmetics (cited above), at paragraph 16, that the consideration taken as the taxable amount in respect of a supply of goods is a subjective value, since the taxable amount is the consideration actually received and not a value estimated according to objective criteria.
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16 From the aforesaid judgment of 5 February 1981 it is clear firstly that the consideration must be capable of being expressed in monetary terms and, secondly, that it is a subjective value, since the basis of assessment is the consideration actually received and not a value estimated according to objective criteria .
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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56. Il appartient à la Cour, dans l’exercice de son pouvoir d’appréciation, de fixer le montant de la somme forfaitaire de sorte qu’elle soit, d’une part, adaptée aux circonstances et, d’autre part, proportionnée au manquement constaté ainsi qu’à la capacité de paiement de l’État membre concerné. Figurent notamment au rang des facteurs pertinents à cet égard des éléments tels que la période durant laquelle le manquement reproché a persisté depuis l’arrêt l’ayant constaté et la gravité de l’infraction (arrêt Commission/Belgique, C‑533/11, EU:C:2013:659, point 53 et jurisprudence citée).
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53. In those circumstances, it is for the Court, in exercising its discretion, to determine the amount of the penalty payment in a manner that is appropriate to the circumstances and proportionate both to the breach that has been established and the ability to pay of the Member State concerned. Relevant considerations in this respect include factors such as the length of time for which the breach of obligations complained of has persisted since the judgment establishing it was delivered, and the seriousness of the infringement (see Commission v Spain , paragraphs 143 and 144 and the case-law cited).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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22. It is also clear from the case-law of the Court that the tax treatment of inheritances falls, in principle, under Article 63 TFEU on the free movement of capital. Inheritances consisting in the transfer to one or more persons of assets left by a deceased person, falling under heading XI of Annex I to Directive 88/361, which is entitled ‘Personal capital movements’, are movements of capital for the purposes of Article 63 TFEU (see, inter alia, Case C-11/07 Eckelkamp and Others [2008] ECR I-6845, paragraph 39; Case C-43/07 Arens-Sikken [2008] ECR I-6887, paragraph 30; Case C-35/08 Busley and Cibrian Fernandez [2009] ECR I-9807, paragraph 18; and Case C-25/10 Missionswerk Werner Heukelbach [2011] ECR I-497, paragraph 16).
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16. In that regard, the Court – noting, in particular, that inheritances consisting in the transfer to one or more persons of assets left by a deceased person fall under heading XI of Annex I to Directive 88/361, entitled ‘Personal capital movements’ – has held that an inheritance is a movement of capital for the purposes of Article 63 TFEU, except in cases where its constituent elements are confined within a single Member State (see, to that effect, Eckelkamp and Others , paragraph 39 and the case-law cited). However, a situation such as that in the case before the referring court, in which a person residing in Belgium has left a legacy to a non-profit-making body with its seat in Germany, in no way constitutes a purely internal situation.
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31. It is apparent from the order for reference that the goods which are the subject-matter of these proceedings were presented to the relevant customs office, covered by a summary declaration pending the assignment of a customs-approved treatment or use and, therefore, had the status of goods in temporary storage. Furthermore, it is common ground that those goods were unlawfully removed from customs supervision following a theft, which took place at the time when they had just been unloaded from the vessel and placed on the quayside by Seaport Terminals.
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20 It must be remembered first of all that the provisions of Title II of Regulation No 1408/71, of which Article 14 forms part, constitute, according to the settled case-law of the Court, a complete and uniform system of conflict rules the aim of which is to ensure that workers moving within the Community shall be subject to the social security scheme of only one Member State, in order to prevent the system of legislation of more than one Member State from being applicable and to avoid the complications which may result from that situation (see Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraph 12; Case C-425/93 Calle Grenzshop Andresen [1995] ECR I-269, paragraph 9; Case C-131/95 Huijbrechts [1997] ECR I-1409, paragraph 17, and Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 28).
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9 The Court has consistently held that the provisions of Title II of Regulation No 1408/71, of which Article 14 forms part, constitute a complete and uniform system of conflict rules, the aim of which is to ensure that workers moving within the Community are to be subject to the social security scheme of only one Member State, in order to prevent more than one legislative system from being applicable and to avoid the complications which may result from that situation (see, in particular, Case C-71/93 Van Poucke v Rijksinstitut voor de Sociale Verzekeringen der Zelfstandigen [1994] ECR I-1101, paragraph 22).
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41. À cet égard, il y a lieu de rappeler que, selon une jurisprudence constante de la Cour, en ce qui concerne les donations et les successions, les mesures interdites par l’article 63, paragraphe 1, TFUE, en tant qu’elles constituent des restrictions aux mouvements de capitaux, comprennent celles qui ont pour effet de diminuer la valeur de la donation ou de la succession d’un résident d’un État autre que celui sur le territoire duquel se trouvent les biens concernés et qui impose la donation ou la succession de ceux-ci (voir notamment, pour ce qui est des donations, arrêt Mattner, EU:C:2010:216, point 26 et jurisprudence citée, ainsi que, pour ce qui concerne les successions, arrêt Welte, EU:C:2013:662, point 23 et jurisprudence citée).
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34
Among the two objectives of the flat-rate scheme is that relating to the need for administrative simplification for the farmers concerned, which must be reconciled with the objective of offsetting the input VAT borne by those farmers when acquiring goods used for the purposes of their activities (see, to that effect, judgments of 8 March 2012, Commission v Portugal, C‑524/10, EU:C:2012:129, paragraph 50, and of 12 October 2016, Nigl and Others, C‑340/15, EU:C:2016:764, paragraph 38).
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50. Moreover, while the simplification of administrative obligations burdening flat-rate farmers is indeed one of the objectives pursued by the flat-rate scheme for farmers, the goal of simplification cannot justify the introduction of an exemption which is not provided for by the VAT Directive (see, to that effect and by analogy, Case C‑128/05 Commission v Austria [2006] ECR I‑9265, paragraph 25). That is reinforced by the fact that the objective of simplification must, in the present case, be reconciled with the objective of offsetting the input VAT borne by the farmers concerned, which necessarily implies that a minimum of administrative obligations are imposed on flat-rate farmers, inter alia, in order to collect the data required for the determination of the applicable flat-rate compensation percentages.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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22. The Court has already held that German child-raising allowance constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 (see Case C‑85/96 Martínez Sala [1998] ECR I‑2691, paragraph 26).
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26 The child-raising allowance in question here is an advantage granted inter alia to workers who work part-time. It is therefore a social advantage within the meaning of Article 7(2) of Regulation No 1612/68.
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41. Accordingly, the award of that contract must be examined taking into account all those stages as well as their purpose and not on the basis of their strictly chronological order as suggested by the Austrian Government.
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31. In that regard, it should be recalled that, according to settled case-law, it is for the national courts alone which are seised of the case and are responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of European Union law, the Court is, in principle, obliged to give a ruling (see Case C‑379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; Case C‑390/99 Canal Satélite Digital [2002] ECR I‑607, paragraph 18; and Case C‑373/00 Adolf Truley [2003] ECR I‑1931, paragraph 21).
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21. Suffice it to point out in this regard that, according to the settled case-law of the Court, in particular the above judgment in Durighello , cited by Bestattung Wien, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (Durighello , paragraph 8). Consequently, since the questions referred involve the interpretation of Community law, the Court is, in principle, obliged to give a ruling.
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47. However, granting the tax advantage in question in the main proceedings to persons who are not insured under the Netherlands social security system would amount to treating different situations in the same way, since insured persons under that system are entitled only in exceptional circumstances to tax credits in respect of social security. It is only in a situation where an insured person cannot set off reductions in contributions against contributions due that he can seek to obtain such tax credits. On the other hand, non-insured persons, such as the applicant in the main proceedings, would always automatically be entitled to a tax credit by virtue of the grant of reductions in contributions in respect of social security. As there is no obligation to pay contributions, such a person can never offset those reductions against social security contributions due.
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44. If the position of the tax authorities is indeed as described in the previous paragraph, which is for the referring court to ascertain, it should be observed that the deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see Midland Bank , paragraph 19; Abbey National , paragraph 24; Cibo Participations , paragraph 27; Kretztechnik , paragraph 34; and Investrand , paragraph 22).
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34. The deduction system is meant to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (see, to that effect, Case 268/83 Rompelman [1985] ECR 655, paragraph 19; Case C-37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 15; Gabalfrisa and Others , paragraph 44; Midland Bank , paragraph 19, and Abbey National , paragraph 24).
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41
In that regard, it is apparent from Article 8(1) of Decision 2011/695 that where the Commission intends to disclose information which may constitute a business secret or other confidential information of any undertaking or person, the latter must be informed in writing of that intention and a time limit must be fixed within which the undertaking or person concerned may submit any written comments.
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36. Article 33 of the Sixth Directive does not, on the other hand, preclude the maintenance or introduction of a tax which does not display one of the essential characteristics of VAT (Case C‑130/96 Solisnor-Estaleiros Navais [1997] ECR I‑5053, paragraphs 19 and 20; GIL Insurance and Others , paragraph 34; and Banca Popolare di Cremona , paragraph 27).
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20 The answer to the question submitted must therefore be that Article 33 of the Sixth Directive must be construed as not precluding the maintenance of a national charge having the characteristics of a stamp duty levied on works contracts and contracts for the supply of materials or any kind of consumer article, to the exclusion of a large portion of economic transactions in the Member State concerned.
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66. Thus, in that judgment, the Court held that the imposition of a penalty without prior notice or the opportunity to be heard before the penalty is imposed does not appear to impair the core of the fundamental right at issue, since the submission of a reasoned objection agai nst the decision imposing the penalty renders that decision immediately inoperable and triggers an ordinary procedure under which there is a right to be heard ( Texdata Software , EU:C:2013:588, paragraph 85).
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25. Moreover, it is clear from the Court’s case-law (Case C-273/00 Sieckmann [2002] ECR I-11737, paragraphs 46 to 55, and Libertel , paragraphs 28 and 29) that a graphic representation in terms of Article 2 of the Directive must enable the sign to be represented visually, particularly by means of images, lines or characters, so that it can be precisely identified.
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28. Furthermore, as the Court has held, a graphic representation within the meaning of Article 2 of the Directive must enable the sign to be represented visually, particularly by means of images, lines or characters, so that it can be precisely identified (Case C-273/00 Sieckmann [2002] ECR I-11737, paragraph 46).
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69. The nature of the duties performed by Mr Rosado Santana in the years during which he worked for the Junta de Andalucía as an interim civil servant and the quality of the experience which he thereby acquired are not merely one of the factors which could objectively justify different treatment as compared with career civil servants. They are also among the criteria which make it possible to determine whether he is in a situation comparable with that of career civil servants.
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28. It should also be observed that, in determining the scope of a provision of Community law, its wording, context and objectives must all be taken into account (Case C‑162/91 Tenuta il Bosco [1992] ECR I‑5279, paragraph 11, and Case C‑315/00 Maierhofer [2003] ECR I‑563, paragraph 27). Moreover, the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question (see, inter alia, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C-287/98 Linster [2000] ECR I-6917, paragraph 43; Case C-357/98 Yiadom [2000] ECR I-9265, paragraph 26; Case C‑373/00 Adolf Truley [2003] ECR I‑1931, paragraph 35; and Case C‑497/01 Zita Modes [2003] ECR I‑0000, paragraph 34).
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26 It should also be recalled that the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question (Case 327/82 Ekro v Produktschap voor Vee en Vlees [1984] ECR 107, paragraph 11; and Case C-287/98 State of the Grand Duchy of Luxembourg v Linster and Others [2000] ECR I-6917, paragraph 43).
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47. Where there is no agreement as to the compatibility of the measures taken to comply with the DSB’s recommendations and decisions, Article 21(5) of the understanding provides that the dispute shall be decided ‘through recourse to these dispute settlement procedures’, including an attempt by the parties to reach a negotiated solution.
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55. With regard to Article 9(3) of the Aarhus Convention, that article does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore does not meet those conditions. Since only members of the public who ‘meet the criteria, if any, laid down in … national law’ are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure (see judgment in Lesoochranárske zoskupenie , EU:C:2011:125, paragraph 45).
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45. It must be held that the provisions of Article 9(3) of the Aarhus Convention do not contain any clear and precise obligation capable of directly regulating the legal position of individuals. Since only members of the public who meet the criteria, if any, laid down by national law are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure.
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19 With respect to these various arguments, it should be recalled that the Court has consistently ruled that where the data available at the present stage of scientific research do not make it possible to determine with certainty the number of pathogenic micro-organisms above which a food product represents a danger to health, in the absence of harmonization in this field, it is for the Member States to determine, with due regard to the requirements of the free movement of goods, the level at which they wish to ensure that human life and health are protected (see, in particular, Case 97/83 Melkunie [1984] ECR 2367, paragraph 18).
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48 As the Court has repeatedly stated, it is in keeping with the spirit of certainty, which constitutes one of the aims of the Convention, that the national court seised should be able readily to decide whether it has jurisdiction on the basis of the rules of the Convention, without having to consider the substance of the case (Cases 34/82 Peters v ZNAV [1983] ECR 987, paragraph 17; C-288/92 Custom Made Commercial v Stawa Metallbau [1994] ECR I-2913, paragraph 20; and Benincasa, paragraph 27). In Benincasa, at paragraphs 28 and 29, the Court explained that the aim of securing legal certainty by making it possible reliably to foresee which court will have jurisdiction has been interpreted, in connection with Article 17 of the Convention, by fixing strict conditions as to form, since the purpose of that provision is to designate, clearly and precisely, a court in a Contracting State which is to have exclusive jurisdiction in accordance with the consensus between the parties.
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17 IT SHOULD BE NOTED THAT MULTIPLICATION OF THE BASES OF JURISDICTION IN ONE AND THE SAME TYPE OF CASE IS NOT LIKELY TO ENCOURAGE LEGAL CERTAINTY AND EFFECTIVE LEGAL PROTECTION THROUGHOUT THE TERRITORY OF THE COMMUNITY . THE PROVISIONS OF THE CONVENTION SHOULD THEREFORE BE INTERPRETED IN SUCH A WAY THAT THE COURT SEISED IS NOT REQUIRED TO DECLARE THAT IT HAS JURISDICTION TO ADJUDICATE UPON CERTAIN APPLICATIONS BUT HAS NO JURISDICTION TO HEAR CERTAIN OTHER APPLICATIONS , EVEN THOUGH THEY ARE CLOSELY RELATED . MOREOVER , RESPECT FOR THE PURPOSES AND SPIRIT OF THE CONVENTION REQUIRES AN INTERPRETATION OF ARTICLE 5 WHICH ENABLES THE NATIONAL COURT TO RULE ON ITS OWN JURISDICTION WITHOUT BEING COMPELLED TO CONSIDER THE SUBSTANCE OF THE CASE .
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24. La Cour a ainsi jugé que l’article 2, paragraphe 6, de la directive 89/665 ne saurait avoir d’incidence sur un recours exercé au titre de l’article 226 CE ou de l’article 228 CE (voir arrêt du 18 juillet 2007, Commission/Allemagne, C-503/04, Rec. p. I‑6153, point 34) et que cette conclusion vaut également pour la directive 89/665 envisagée dans son ensemble (arrêt du 15 octobre 2009, Commission/Allemagne, C‑275/08, point 33).
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69
As regards citizens of the Union wishing to move within the EU on grounds not related to the pursuit of an economic activity, the same conclusion applies, for the same reasons, to the complaint alleging infringement of Article 21 TFEU (see, to that effect, judgment of 12 July 2012, Commission v Spain , C‑269/09, EU:C:2012:439, paragraph 91).
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91. As regards the alleged existence of a restriction of Article 18 EC, it cannot reasonably be denied that the exclusion of persons wishing to move within the European Union for reasons not connected with the pursuit of an economic activity from entitlement to the cash-flow advantage concerned may, in some cases, be likely to deter those persons from exercising the fundamental freedoms guaranteed by Article 18 EC.
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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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18. The Court also stresses that it is important for the referring court to set out the precise reasons why it is unsure as to the interpretation of EU law and why it considers it necessary to refer questions to the Court for a preliminary ruling (see, to that effect, inter alia, Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 46 and the case-law cited, and the Order in Case C‑432/10 Chihabi and Others [2011] ECR I‑5 (summary publication), paragraph 22).
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46. The Court has also stressed that it is important for the referring court to set out the precise reasons why it was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. The Court has thus ruled that it is essential that the referring court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute (see, inter alia, the order in Viacom, cited above, paragraph 16, and the judgment in Case C‑318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I‑905, paragraph 43).
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37. It therefore appears that, in addition to the criterion of whether a substance constitutes a production residue, a second relevant criterion for determining whether or not that substance is waste for the purposes of Directive 75/442 is the degree of likelihood that that substance will be reused, without any further processing prior to its reuse. If, in addition to the mere possibility of reusing the substance, there is also a financial advantage to the holder in so doing, the likelihood of reuse is high. In such circumstances, the substance in question must no longer be regarded as a burden which its holder seeks to " discard" , but as a genuine product.
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30. Here, it should be noted as a preliminary point that it is not clear from the order for reference on the basis of which version of the OUG the pollution tax was levied on Mr Nicula on the date of the registration of his vehicle in Romania. However, the Court has previously held that Article 110 TFEU precludes a tax such as the pollution tax introduced by OUG No 50/2008 both in its original version and as amended (see, to that effect, judgments in Tatu , EU:C:2011:219, paragraphs 58 and 61, and Nisipeanu , C‑263/10, EU:C:2011:466, paragraphs 27 and 29).
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29. Au regard des considérations qui précèdent, il convient de répondre aux première à troisième, cinquième et sixième questions posées que l’article 110 TFUE doit être interprété en ce sens qu’il s’oppose à ce qu’un État membre instaure une taxe sur la pollution frappant des véhicules automobiles lors de leur première immatriculation dans cet État membre, si cette mesure fiscale est aménagée de telle manière qu’elle décourage la mise en circulation, dans ledit État membre, de véhicules d’occasion achetés dans d’autres États membres, sans pour autant décourager l’achat de véhicules d’occasion de même ancienneté et de même usure sur le marché national.
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27. The explanatory notes drawn up, as regards the CN, by the Commission of the European Communities and, as regards the HS, by the WCO are an important aid to interpretation of the scope of the various tariff headings but do not have legally binding force (see, inter alia, DFDS , paragraph 28, and Intermodal Transports , paragraph 48).
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85. Thus, in order for a prior administrative authorisation scheme to be justified even though it derogates from a fundamental freedom of that kind, it must be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily (Analir and Others , paragraph 38). Such a prior administrative authorisation scheme must likewise be based on a procedural system which is easily accessible and capable of ensuring that a request for authorisation will be dealt with objectively and impartially within a reasonable time and refusals to grant authorisation must also be capable of being challenged in judicial or quasi-judicial proceedings (Smits and Peerbooms , paragraph 90).
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90 It likewise follows from settled case-law that a scheme of prior authorisation cannot legitimise discretionary decisions taken by the national authorities which are liable to negate the effectiveness of provisions of Community law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings (see, to that effect, Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 25; Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, paragraphs 23 to 28, and Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 37). Therefore, in order for a prior administrative authorisation scheme to be justified even though it derogates from such a fundamental freedom, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily (Analir and Others, paragraph 38). Such a prior administrative authorisation scheme must likewise be based on a procedural system which is easily accessible and capable of ensuring that a request for authorisation will be dealt with objectively and impartially within a reasonable time and refusals to grant authorisation must also be capable of being challenged in judicial or quasi-judicial proceedings.
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42 Nor can relations between the Channel Islands and the United Kingdom be regarded as similar to those between two Member States because of other aspects of the status of those Islands.
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19. It is also settled case-law that all measures which prohibit, impede or render less attractive the exercise of that freedom must be regarded as constituting restrictions on the freedom of establishment (see Columbus Container Services , paragraph 34, and Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt , paragraph 30).
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30. Moreover, it is settled case-law that all measures which prohibit, impede or render less attractive the exercise of that freedom must be regarded as such restrictions (Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 37; Case C‑442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11).
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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22
It should be borne in mind that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for the interested parties referred to in Article 23 of that Statute to submit observations in response to the Advocate General’s Opinion (see, inter alia, judgment of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 24).
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24
It should be noted that the Statute of the Court of Justice of the European Union and the Rules of Procedure make no provision for the interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union to submit observations in response to the Advocate General’s Opinion (see, inter alia, judgment of 4 September 2014 in Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30).
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49. In those circumstances, the right to maternity leave granted to pregnant workers must be regarded as a particularly important mechanism of protection under employment law. The Community legislature thus considered that the fundamental changes to the living conditions of the persons concerned during the period of at least 14 weeks preceding and after childbirth constituted a legitimate ground on which they could suspend their employment, without the public authorities or employers being allowed in whatever way to call the legitimacy of that ground into question.
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27. In that regard, it must be borne in mind that EU rules relating to civil liability in respect of the use of motor vehicles are designed to ensure the free movement of vehicles normally based on EU territory and of persons travelling in those vehicles and to guarantee that the victims of accidents caused by those vehicles receive comparable treatment irrespective of where in the EU the accident has occurred (see, inter alia, Case C‑129/94 Ruiz Bernáldez [1996] ECR I‑1829, paragraph 13, and Case C‑537/03 Candolin and Others [2005] ECR I‑5745, paragraph 17). They also seek, as set out in the fifth recital in the preamble to the Third Directive, to protect that particularly vulnerable category of potential victims who are motor vehicle passengers by filling the gaps in the compulsory insurance cover of those passengers in certain Member States (Case C‑356/05 Farrell [2007] ECR I‑3067, paragraph 24).
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24. It would be contrary to the objectives of the Community legislation to exclude from the concept of ‘passenger’, and thus from insurance cover, injured parties seated in a vehicle which was not designed for their carriage or equipped for that purpose. According to the fourth and fifth recitals in the preamble to the Third Directive, the objective of that legislation includes the filling of gaps in the compulsory insurance cover of motor vehicle passengers in certain Member States and the protection of that particularly vulnerable category of potential victims, coupled with the guaranteeing of comparable treatment to motor vehicle accident victims irrespective of where in the Community accidents occur.
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35. Thus, the sole criterion referred to in that provision is that the trader’s practice must be directly connected with the promotion, sale or supply of a product or service to consumers (see, inter alia, judgments in Plus Warenhandelsgesellschaft , C‑304/08, EU:C:2010:12, paragraph 39, and in CHS Tour Services , C‑435/11, EU:C:2013:574, paragraph 27).
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42. Article 1 of that protocol takes the form of a standstill clause. In other words, that provision aims to ensure that bananas from ACP States have access to their traditional markets upon conditions and according to rules which are no less favourable than those which existed when it entered into force. However, that guarantee of access benefits bananas from ACP States only up to the quantities imported when that provision entered into force ( Chiquita Italia , paragraph 59).
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59 Article 1 of Protocol No 5 on bananas takes the form of a standstill clause. In other words, that provision aims to ensure the access of bananas from ACP States to their traditional markets upon conditions and according to rules which are no less favourable than those which existed when it entered into force. However, that guarantee of access benefits bananas from ACP States only up to the quantities imported when that provision entered into force.
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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39
In that context, it should be noted, as a preliminary point, that the referring court’s indication that the activities at issue in the main proceedings constitute ’services’ within the meaning of Directive 2004/18 is aimed solely at clarifying that the application of that directive cannot be dismissed in that regard. On the other hand, the fact that an activity coming within a public authority’s competence constitutes a service covered by that directive is not in itself sufficient to make that directive applicable, as public authorities are free to decide whether or not to have recourse to the contract mechanism in the accomplishment of their public interest tasks (see, to that effect, judgment of 9 June 2009, Commission v Germany, C‑480/06, EU:C:2009:357, paragraph 45 and the case-law cited).
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45. The Court has pointed out, in particular, that a public authority has the possibility of performing the public interest tasks conferred on it by using its own resources, without being obliged to call on outside entities not forming part of its own departments, and that it may do so in cooperation with other public authorities (see Coditel Brabant , paragraphs 48 and 49).
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28 THE MEASURE WHEREBY THE COMMISSION DECIDES ON THE ISSUES OF THE IMPORT LICENCES THUS DIRECTLY AFFECTS THE LEGAL POSITION OF THE PARTIES CONCERNED .
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67. In paragraph 184 of the judgment under appeal, the General Court rightly pointed out that where, following the annulment of a decision penalising undertakings which have infringed Article 81(1) EC because of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission is to adopt a fresh decision, with substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 83 to 111).
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84 The appellants also complain of the Court of First Instance's finding, in paragraphs 251 and 252 of the contested judgment, that a new hearing was not required in the absence of new objections.
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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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58. Recital 5 in the preamble to Directive 97/55 states that, when comparative advertising compares material, relevant, verifiable and representative features and is not misleading, it may be a legitimate means of informing consumers of their advantage ( De Landtsheer Emmanuel , paragraph 62).
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62. As already pointed out at paragraph 34 of the present judgment, comparative advertising helps to demonstrate objectively the merits of the various comparable products and to stimulate competition between suppliers of goods and of services to the consumer’s advantage. In the wording of recital 5 in the preamble to Directive 97/55, comparative advertising, when it compares material, relevant, verifiable and representative features and is not misleading, may be a legitimate means of informing consumers of their advantage.
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41. At pages 152 and 154 of Meroni v High Authority , the Court stated, in essence, that the consequences resulting from a delegation of powers are very different depending on whether it involves clearly defined executive powers the exercise of which can, therefore, be subject to strict review in the light of objective criteria determined by the delegating authority, or whether it involves a ‘discretionary power implying a wide margin of discretion which may, according to the use which is made of it, make possible the execution of actual economic policy’.
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35. The Court has indeed held that the deduction of input VAT is linked to the collection of output VAT (see Case C-184/04 Uudenkaupungin kaupunki [2006] ECR I-3039, paragraph 24, and Case C-72/05 Wollny [2006] ECR I-8297, paragraph 20).
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20. First, according to the aim of the system introduced by the Sixth Directive, input taxes on goods or services used by a taxable person for his taxable transactions may be deducted. The deduction of input taxes is linked to the collection of output taxes. In so far as goods or services are used for the purposes of transactions that are taxable as outputs, deduction of the input tax on them is required in order to avoid double taxation. However, where goods or services acquired by a taxable person are used for purposes of transactions that are exempt or do not fall within the scope of VAT, no output tax can be collected or input tax deducted (see Case C-184/04 Uudenkaupungin kaupunki [2006] ECR I‑0000, paragraph 24).
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54. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures (see Commission v Denmark , paragraphs 52 and 53).
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110. However, as follows from paragraphs 105 to 107 of this judgment, taking into consideration that further reduction was part of a legal assessment which the General Court was entitled to make in the exercise of its unlimited jurisdiction, without notifying the parties, prior to the delivery of the judgment (see, by analogy, Case C‑286/11 P Commission v Tomkins [2013] ECR I‑0000, paragraph 61).
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61. However, as is apparent from the considerations and conclusions of the Court in the context of the first, second and third grounds of appeal, that possibility does exist in certain circumstances. The application of that possibility is the result of a legal assessment by the General Court which the latter is entitled to make, w ithout notifying the parties, prior to the delivery of the judgment. To act in such a way does not constitute an infringement of the rights of the defence or of the right to a fair hearing.
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15 The very wording of the transitional provisions of Article 28(3)(b) of the Sixth Directive, which authorize the Member States to "continue to exempt the activities set out in Annex F under conditions existing in the Member State concerned", precludes the introduction of new exemptions or any extension of the scope of existing exemptions (Case 73/85 Kerrutt [1986] ECR 2219, paragraph 17) and the reintroduction of exemptions existing before VAT was imposed on the services in question in accordance with the Sixth Directive (Case C-35/90 Commission v Spain [1991] ECR I-5073, paragraphs 6 to 9).
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24
According to the settled case-law of the Court it is for the Commission, when it considers that a Member State has failed to fulfil its obligations, to assess whether it is appropriate to act against that State, to determine which provisions the State has infringed, and to choose when it will initiate infringement proceedings against it; the considerations which determine that choice cannot affect the admissibility of its action (judgment in Commission v Poland, C‑311/09, EU:C:2010:257, paragraph 19 and the case-law cited).
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19. S’agissant du caractère prématuré du recours, il y a lieu de relever qu’il résulte d’une jurisprudence constante qu’il incombe à la Commission, lorsqu’elle considère qu’un État membre a manqué à ses obligations, d’apprécier l’opportunité d’agir contre cet État, de déterminer les dispositions qu’il a violées et de choisir le moment où elle initiera la procédure en manquement à son encontre, les considérations qui déterminent ce choix ne pouvant affecter la recevabilité de son recours (voir, en ce sens, arrêts du 10 mars 2005, Commission/Allemagne, C‑531/03, point 23, et du 8 décembre 2005, Commission/Luxembourg, C‑33/04, Rec. p. I‑10629, point 66).
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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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97. It should be stated first of all that the subject-matter of the present dispute may be extended to contract awards at issue that occurred after the date upon which the time-limit set in the reasoned opinion expired, namely 4 September 2006, given that those awards stem from conduct of the same kind as the awards referred to in the reasoned opinion (see, to this effect, Case 42/82 Commission v France [1983] ECR 1013, paragraph 20; Case 113/86 Commission v Italy [1988] ECR 607, paragraph 11; and Case C-236/05 Commission v United Kingdom [2006] ECR I‑10819, paragraph 12).
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12. In particular, the Court has held that the subject-matter of the dispute may be extended to events which took place after the reasoned opinion was delivered in so far as they are of the same kind and constitute the same conduct as the events to which the opinion referred (see Case 42/82 Commission v France [1983] ECR 1013, paragraph 20; Case C-113/86 Commission v Italy [1988] ECR 607, paragraph 11; and Case C-221/04 Commission v Spain [2006] ECR I-0000, paragraph 28).
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79 Other articles of the Treaty may not, however, be used as a legal basis in order to circumvent the express exclusion of harmonisation laid down in Article 129(4) of the Treaty.
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Dans ces conditions, et eu égard au fait, ainsi que l’a rappelé le Tribunal au point 100 de l’arrêt attaqué, que la Commission
peut, à tout moment, décider d’élever le niveau du montant de l’amende, y compris par l’application, à des cas d’espèce, de
règles de conduite de portée générale telles que les lignes directrices (voir, en ce sens, arrêt du 28 juin 2005, Dansk Rørindustri e.a./Commission,
C‑189/02 P, C‑202/02 P, C‑205/02 P à C‑208/02 P et C‑213/02 P, EU:C:2005:408, points 229 et 230), c’est à bon droit que le
Tribunal a conclu, au point 107 de l’arrêt attaqué, que les lignes directrices de 2006 et la nouvelle méthode de calcul qu’elles
comportent, à supposer que cette dernière ait eu un effet aggravant quant au niveau des amendes infligées, étaient raisonnablement
prévisibles pour des entreprises, telles que SLM, à l’époque où l’infraction concernée a été commise et que, partant, en appliquant,
dans la décision litigieuse, ces lignes directrices pour calculer le montant de l’amende à infliger pour une infraction commise
avant leur adoption, la Commission n’avait pas violé le principe de non‑rétroactivité (voir, par analogie, arrêt du 18 juillet
2013, Schindler Holding e.a./Commission, C‑501/11 P, EU:C:2013:522, point 75 ainsi que jurisprudence citée).
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229. Consequently, the undertakings in question must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past.
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13 THE FACT THAT IN THIS CASE THE ACTION PENDING BEFORE THE NATIONAL COURT DOES NOT CONCERN THE ACTUAL REMOVAL OF THE WRECK BUT THE COSTS INVOLVED IN THAT REMOVAL AND THAT THE NETHERLANDS STATE IS SEEKING TO RECOVER THOSE COSTS BY MEANS OF A CLAIM FOR REDRESS AND NOT BY ADMINISTRATIVE PROCESS AS PROVIDED FOR BY THE NATIONAL LAW OF OTHER MEMBER STATES CANNOT BE SUFFICIENT TO BRING THE MATTER IN DISPUTE WITHIN THE AMBIT OF THE BRUSSELS CONVENTION .
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43 As the Court held in Case C-379/92 Peralta [1994] ECR I-3453, paragraph 57, Article 130r is confined to defining the general objectives of the Community in the matter of the environment. Responsibility for deciding what action is to be taken is conferred on the Council by Article 130s. Moreover, Article 130t states that the protective measures adopted jointly pursuant to Article 130s are not to prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaty.
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57 Secondly, Article 130r is confined to defining the general objectives of the Community in the matter of the environment. Responsibility for deciding what action is to be taken is conferred on the Council by Article 130s. Moreover, Article 130t states that the protective measures adopted pursuant to Article 130s are not to prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaty.
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19 In those circumstances, and without its being necessary to examine its other specific features, it must be held that a tax of the type referred to by the national court does not have one of the essential characteristics of VAT.
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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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71. The principle of proportionality, which is one of the general principles of EU law, requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives 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 (Joined Cases C-27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569, paragraph 62, and Case C-504/04 Agrarproduktion Staebelow [2006] ECR I-679, paragraph 35).
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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. However, it should be pointed out that, according to settled case‑law, the amendments introduced by the national legislation are irrelevant for the purpose of ruling on the subject of an action for failure to fulfil obligations, since they were not initiated before the expiry of the period fixed in the reasoned opinion (see, in particular, Case C‑173/94 Commission v Belgium [1996] ECR I‑3265, paragraph 16, and Case C‑66/06 Commission v Ireland [2008] ECR I‑0000, paragraph 91). The Portuguese Republic cannot thus plead the legislative amendments which are to take effect after that date.
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91. First of all, it should be recalled that, in accordance with settled case-law, amendments to national legislation are irrelevant for the purposes of giving judgment on the subject-matter of an action for failure to fulfil obligations if they have not been implemented before the expiry of the period set by the reasoned opinion (see, in particular, Case C-392/96 Commission v Ireland , paragraph 86). It is thus inappropriate to take into account, for the purpose of assessing the merits of the present complaint, the amendments made to the Irish legislation in 2006.
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45. That measure makes it more difficult for workers who are eligible for an old-age pension subsequently to exercise their right to work because, unlike other workers with the same years of service, they are not entitled to the severance allowance when in the process of seeking new employment.
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97. It follows from settled case‑law that the mere failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned is able to show, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document (see, inter alia, Case 107/82 AEG v Commission [1983] ECR 3151, paragraphs 24 to 30, and Case 322/81 Michelin v Commission , paragraphs 7 to 9).
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26 AS REGARDS THE DOCUMENTS MENTIONED ONLY IN THE DECISION ( LETTER OF 29 JUNE 1976 FROM TFR ' S MUNSTER SALES OFFICE ; ATF MEMORANDUM OF 7 JULY 1977 ; ATF MEMORANDUM OF 20 OCTOBER 1978 ), THE COMMISSION CONTENDS THAT THESE WERE DOCUMENTS WITH WHICH THE APPLICANT WAS ALREADY FAMILIAR AS THEY CAME FROM ITS OWN OFFICES AND THAT THEY WERE USED ONLY TO CONFIRM OBJECTIONS ALREADY RAISED .
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34. Unlike the respective legal contexts which led to the judgments in Candolin and Others and in Farrell , that legislation does not have the effect, therefore, where the victim contributes to his own loss or injury, of automatically excluding or limiting disproportionately this right, in the present case that of the parents of a deceased child who collided with a motor vehicle while riding a bicycle, to compensation by means of compulsory insurance against the civil liability of the driver of the vehicle involved in the accident. Thus, it does not affect the obligation under European Union law to ensure that civil liability arising under national law is covered by insurance which complies with the provisions of the three abovementioned directives ( Carvalho Ferreira Santos , paragraphs 43 and 44).
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84
As the Court of Justice has previously had occasion to point out in its judgments of 4 September 2014, Spain v Commission (C‑192/13 P, EU:C:2014:2156, paragraph 81), and of 4 September 2014, Spain v Commission (C‑197/13 P, EU:C:2014:2157, paragraph 81), Article 18 of Regulation No 1386/2002, in accordance with which the Commission set the parameters for the application of Regulation No 1164/94, as amended, can be understood only as confirming the existence of a legal time limit for the purposes of adoption of a decision on financial corrections.
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81. In addition, concerning more particularly Regulation No 1386/2002, the purpose of which is to lay down the procedure for implementing Regulation No 1164/94, as amended, of which the provision at issue in the present dispute forms part, the view advanced by the Commission, and affirmed by the General Court in paragraphs 36 and 39 of the judgment under appeal, that Article 18 of Regulation No 1386/2002 merely fixes the date when the time-limit for taking a decision under Article H(2) of Annex II to Regulation No 1164/94, as amended, starts to run, cannot be accepted, since the European Union legislature could not have set the starting point for a time-limit for adopting a decision under Article H if such a time-limit did not exist.
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63. Moreover, it is for the national authorities which invoke a derogation from the fundamental principle of freedom of movement for persons to show in each individual case that their rules are necessary and proportionate to attain the aim pursued. The reasons which may be invoked by a Member State by way of justification must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State and specific evidence substantiating its arguments (see, to that effect, Case C-42/02 Lindman [2003] ECR I-13519, paragraph 25, and Case C-8/02 Leichtle [2004] ECR I-2641, paragraph 45).
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36. Interpreting Article 4(1) of Directive 97/80 in Kelly , the Court held in paragraph 30 of the judgment that it is the person who considers himself to have been wronged because the principle of equal treatment has not been applied to him who must initially establish the facts from which it may be presumed that there has been direct or indirect discrimination. It is only where that person has established such facts that it is then for the defendant to prove that there has been no breach of the principle of non-discrimination.
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30. Thus, it is the person who considers himself to have been wronged because the principle of equal treatment has not been applied to him who must initially establish the facts from which it may be presumed that there has been direct or indirect discrimination. It is only where that person has established such facts that it is then for the defendant to prove that there has been no breach of the principle of non-discrimination.
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7 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANT' S CLAIM FOR A DECLARATION THAT REGULATION NO 2089/84 IS VOID IN ITS ENTIRETY MUST BE DISMISSED . IT IS, HOWEVER, NECESSARY TO EXAMINE THE MERITS OF THE CLAIM FOR A DECLARATION THAT THOSE PROVISIONS OF THE CONTESTED REGULATION WHICH ARE OF CONCERN EXCLUSIVELY TO KOYO SEIKO ARE VOID .
SUBSTANCE
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31. It must be observed that the wording of heading 8471 of the CN refers, inter alia, to automatic data-processing machines and their units, whereas the wording of heading 8528 of the CN, relates, inter alia, reception apparatus for television and video monitors. Subheading 8471 60 90 includes in particular data entry or production units other than printers and keyboards which may contain units of memory in the same housing, while subheading 8528 21 90 includes colour video monitors ( Kamino International Logistics C‑376/07, EU:C:2009:105, paragraph 33).
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33. In the present case, the wording of heading 8471, within which, according to Kamino, the monitors at issue in the main proceedings fall, refers, inter alia, to automatic data-processing machines and their components, whereas the wording of heading 8528, in which, according to the Dutch Government and the Commission, those monitors should be classified, relates, inter alia, to television reception apparatus and video monitors. Subheading 8471 60 90 includes in particular data entry or production units other than printers and keyboards which may contain units of memory in the same housing, while subheading 8528 21 90 includes colour video monitors.
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26. If there is no means of redress, allowing the implementing measures to be challenged, it should, it is submitted, be borne in mind that in the judgment in Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraphs 97 and 103), the Court held that ‘neither the FEU Treaty nor Article 19 TEU intended to create new remedies before the national courts to ensure the observance of EU law other than those already laid down by national law’, and that Article 47 is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union.
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57. While it is true that it is apparent from that case-law that, as Community law stands at present, a Turkish national’s first admission to the territory of a Member State is, as a rule, governed exclusively by that State’s own domestic law (see, inter alia, Savas , paragraphs 58 and 65, and Abatay and Others , paragraphs 63 and 65), the Court made that finding for the sole purpose of giving a negative answer to the question whether the ‘standstill’ clause in Article 41(1) of the Additional Protocol could, as such, confer the benefit of certain positive rights in respect of freedom of establishment upon a Turkish national ( Savas , paragraphs 58 to 67, and Abatay and Others , paragraphs 62 to 65).
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59 Next, the Court has repeatedly held that, unlike nationals of Member States, Turkish workers are not entitled to move freely within the Community but benefit only from certain rights in the host Member State whose territory they have lawfully entered and where they have been in legal employment for a specific period (see, in particular, Tetik, paragraph 29).
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16 Regulation No 543/69 must therefore be regarded as not precluding the application of national provisions penalizing an employer whose drivers have infringed Articles 7(2 ) and 11 of the regulation, even though that infringement cannot be imputed to an intentional wrongful act or to negligence on the employer' s part .
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57. It is settled case-law that the prohibition of quantitative restrictions and measures having equivalent effect laid down by Article 28 EC applies not only to national measures but also to measures adopted by the Community institutions (see in particular, to that effect, Case 15/83 Denkavit Nederland [1984] ECR 2171, paragraph 15; Case C-51/93 Meyhui [1994] ECR I-3879, paragraph 11; and Case C-114/96 Kieffer and Thill [1997] ECR I-3629, paragraph 27).
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11 It is settled law that the prohibition of quantitative restrictions and of all measures having equivalent effect applies not only to national measures but also to measures adopted by the Community institutions (see in particular Case 15/83 Denkavit Nederland v Hoofdproduktschap voor Akkerbouwprodukten [1984] ECR 2171, paragraph 15).
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96. Ainsi que la Cour l’a jugé à maintes reprises, un acte n’est entaché de détournement de pouvoir que s’il apparaît, sur la base d’indices objectifs, pertinents et concordants, avoir été pris exclusivement, ou à tout le moins de manière déterminante, à des fins autres que celles dont il est excipé ou dans le but d’éluder une procédure spécialement prévue par le traité pour parer aux circonstances de l’espèce (voir en ce sens, notamment, arrêts du 14 mai 1998, Windpark Groothusen/Commission, C‑48/96 P, Rec. p. I‑2873, point 52, et du 7 septembre 2006, Espagne/Conseil, C‑310/04, Rec. p. I‑7285, point 69).
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41. It is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 267 TFEU, it is solely for the national court before which a 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 (Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 16, and Case C‑260/07 Pedro IV Servicios [2009] ECR I‑2437, paragraph 28).
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16. As a preliminary point, it must be observed that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, in particular, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59, Case C‑28/95 Leur-Bloem [1997] ECR I‑4161, paragraph 24, and Case C‑306/99 BIAO [2003] ECR I‑1, paragraph 88).
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17 Furthermore, a comparison of those different provisions shows that they are based on the same principles as regards both the entry into and residence in the territory of the Member States of persons covered by Community law and also the prohibition of all discrimination against them on grounds of nationality.
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43. As the Court has consistently held, that right to deduct is an integral part of the VAT scheme and as a general rule may not be limited. In particular, that right is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (see, inter alia, Case C‑62/93 BP Supergas [1995] ECR I‑1883, paragraph 18; Case C‑392/09 Uszodaépítő [2010] ECR I‑0000, paragraph 34, and Enel Maritsa Iztok 3 , paragraph 32).
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18 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. The Court has consistently held (see, in particular, Case 50/87 Commission v France [1988] ECR 4797, paragraphs 15 to 17 and Case C-97/90 Lennartz v Finanzamt Muenchen III [1991] ECR I-3795, paragraph 27) that the right of deduction must be exercised immediately in respect of all the taxes charged on transactions relating to inputs. Any limitation on the right of deduction 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 directive.
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29. Furthermore, it is in that context that the synallagmatic nature of the contract concluded between RCI Europe and each of its members must be taken into consideration. Even if the various stages of the RCI Weeks system are taken into account, the fact remains that, if there was no intention to exchange timeshare usage rights through the market created by RCI Europe, the enrolment and annual subscription fees would lack any point.
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27. In this connection, it is important to note, first of all, that the syntax of the whole phrase ‘public postal services’ clearly shows that the words in fact refer to the actual organisations which engage in the supply of the services to be exempted. In order to be covered by the wording of the provision, the services must therefore be performed by a body which may be described as ‘the public postal service’ in the organic sense of that expression (see Case 107/84 Commission v Germany [1985] ECR 2655, paragraph 11).
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11 ALTHOUGH IT IS TRUE THAT IN SOME OF THE LANGUAGE VERSIONS THE EXPRESSION ' PUBLIC POSTAL SERVICES ' MAY BE UNDERSTOOD , WHEN CONSIDERED IN ISOLATION , AS REFERRING TO ALL POSTAL ACTIVITIES , THE SYNTAX OF THE WHOLE PHRASE CLEARLY SHOWS THAT THE WORDS IN FACT REFER TO THE ACTUAL ORGANIZATIONS WHICH ENGAGE IN THE SUPPLY OF THE SERVICES TO BE EXEMPTED . IN ORDER TO BE COVERED BY THE WORDING OF THE PROVISION THE SERVICES MUST THEREFORE BE PERFORMED BY A BODY WHICH MAY BE DESCRIBED AS ' THE PUBLIC POSTAL SERVICE ' IN THE ORGANIC SENSE OF THAT EXPRESSION . THAT IS NOT SO , FOR EXAMPLE , IN THE CASE OF A TRANSPORT UNDERTAKING WHICH , WITHOUT COMING INTO CONTACT WITH THE PUBLIC , IS MERELY RESPONSIBLE FOR LONG-DISTANCE TRANSPORTATION BETWEEN TWO POST OFFICES .
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91. As to the national legislation, it must be borne in mind that, according to the 18th and 31st recitals in the preamble to the contested regulation, the Kingdom of Denmark and the Hellenic Republic were the only Member States at the time which had legislation specifically relating to feta.
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24
As regards, moreover, the obligation on the referring court to set out the reasons that led it to raise the question of the validity of Article 20 of Directive 2014/40, it does indeed follow from the spirit of cooperation which must prevail in the operation of the preliminary reference procedure that it is essential that the national court sets out in its order for reference the precise reasons why it considers a reply to its questions concerning the interpretation or validity of certain provisions of EU law to be necessary to enable it to give judgment (see to that effect, inter alia, judgments in Bertini and Others, 98/85, 162/85 and 258/85, EU:C:1986:246, paragraph 6; ABNA and Others, C‑453/03, C‑11/04, C‑12/04 and C‑194/04, EU:C:2005:741, paragraph 46; and IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 31).
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46. The Court has also stressed that it is important for the referring court to set out the precise reasons why it was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. The Court has thus ruled that it is essential that the referring court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute (see, inter alia, the order in Viacom, cited above, paragraph 16, and the judgment in Case C‑318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I‑905, paragraph 43).
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40 The tenor and scope of that concept thus clearly cannot differ depending whether it is used in Annex I or Annex II of the Directive.
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62. However, when such an agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to European Union law, the Member State must refrain from adopting such a measure (see, to this effect, Evans Medical and Macfarlan Smith , paragraph 32, and Centro-Com , paragraph 60).
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60 It should, in any event, be remembered that, when an international agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to Community law, the Member State must refrain from adopting such a measure (see Case C-324/93 Evans Medical and Macfarlan Smith, cited above, paragraph 32).
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Or, il y a lieu de rappeler que, conformément à l’article 256, paragraphe 1, TFUE et à l’article 58, premier alinéa, du statut de la Cour de justice de l’Union européenne, le pourvoi est limité aux questions de droit. Le Tribunal est seul compétent pour constater et apprécier les faits pertinents ainsi que pour apprécier les éléments de preuve. L’appréciation de ces faits et éléments de preuve ne constitue donc pas, sous réserve du cas de leur dénaturation, une question de droit soumise, comme telle, au contrôle de la Cour dans le cadre d’un pourvoi (arrêt du 9 octobre 2014, ICF/Commission, C‑467/13 P, non publié, EU:C:2014:2274, point 26).
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38 As the Court has consistently held, Article 27(2) is intended to ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the court first seised (Case 166/80 Klomps v Michel [1981] ECR 1593, paragraph 9, and Case C-123/91 Minalmet v Brandeis [1992] ECR I-5661, paragraph 18).
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18 Furthermore, as the Court held in its judgment in Case 166/80 Klomps [1981] ECR 1593, paragraph 9, Article 27(2) of the Brussels Convention is intended to uphold the rights of the defence and ensure that a judgment is not recognized or enforced under the Convention if the defendant has not had an opportunity of defending himself before the Court first seised.
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65. Thus, even if the answer to the question referred leaves no scope for any reasonable doubt, that question does not thereby become inadmissible.
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114. With regard to statements of figures relating to the calculation of fines, it is appropriate to point out that, however useful and desirable such figures may be, they are not essential to compliance with the duty to state reasons for a decision imposing fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulas alone, divest itself of its own power of assessment (Case C-291/98 P Sarrió v Commission [2000] ECR I-9991, paragraphs 75 to 77, and Limburgse Vinyl Maatschappij , cited above, paragraph 464).
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75 The fact that more specific information, such as the turnover achieved by the undertakings or the rates of reduction applied by the Commission, were communicated subsequently, at a press conference or during the proceedings before the Court of First Instance, is not such as to call in question the finding in paragraph 348 of the contested judgment. Where the author of a contested decision provides explanations to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the Community court of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision.
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131 ON THE OTHER HAND IT IS NECESSARY TO POINT OUT THAT IT HAS BY NO MEANS BEEN SHOWN THAT THE SAID RULES OR THEIR APPLICATION PREVENT THE MANUFACTURER OR IMPORTER FROM ALLOWING PARTICULAR WHOLESALERS ON AN INDIVIDUAL BASIS A LARGER PROFIT MARGIN OUT OF THE MANUFACTURERS ' OR IMPORTERS ' SHARE OF THE RETAIL PRICE . IN TAKING CONCERTED ACTION REGARDING THE MAXIMUM LEVEL OF PROFIT MARGINS WHICH THEY ALLOW WHOLESALERS THE APPLICANTS JOINTLY PREVENT THEMSELVES FROM SO COMPETING AND AT THE SAME TIME DISCOURAGE THOSE INTERMEDIARIES FROM PURSUING A SALES POLICY WHICH WOULD BENEFIT THE PRODUCTS OF THE MANUFACTURER OR IMPORTER FROM WHOM THEY OBTAIN OR HOPE TO OBTAIN A MORE ADVANTAGEOUS PROFIT MARGIN .
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28 It also noted (at paragraph 108) that where, by reason of an obligation assumed under the GATT or of a concession relating to a preference, some producers suffered or were threatened with serious damage, Article XIX gave a contracting party power unilaterally to suspend the obligation and to withdraw or modify the concession, either after consulting the contracting parties jointly and failing agreement between the contracting parties concerned, or even, if the matter was urgent and on a temporary basis, without prior consultation (see the judgments in Joined Cases 21/72 to 24/72 International Fruit Company, cited above, paragraphs 21, 25 and 26; Case 9/73 Schlueter v Hauptzollamt Loerrach [1973] ECR 1135, paragraph 29; Case 266/81 SIOT v Ministero delle Finanze [1983] ECR 731, paragraph 28; and Joined Cases 267/81, 268/81 and 269/81 SPI and SAMI [1983] ECR 801, paragraph 23).
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29 A PARTICULAR FEATURE OF THIS AGREEMENT, FOUNDED - ACCORDING TO THE PREAMBLE - ON THE PRINCIPLE OF NEGOTIATIONS UNDERTAKEN ON " A RECIPROCAL AND MUTUALLY ADVANTAGEOUS BASIS ", IS THE BROAD FLEXIBILITY OF ITS PROVISIONS, ESPECIALLY THOSE CONCERNING DEVIATIONS FROM GENERAL RULES, MEASURES WHICH MAY BE TAKEN IN CASES OF EXCEPTIONAL DIFFICULTY, AND THE SETTLING OF DIFFERENCES BETWEEN THE CONTRACTING PARTIES .
FOR SETTLING DISPUTES, THESE MEASURES COMPRISE, AS THE CASE REQUIRES, WRITTEN ARGUMENTS OR PROPOSALS WHICH ARE " TO BE ACCORDED SYMPATHETIC CONSIDERATION ", INQUIRIES TO BE FOLLOWED UP, IF NECESSARY, BY RECOMMENDATIONS, CONSULTATIONS OR DECISIONS BY THE CONTRACTING PARTIES, INCLUDING ANY AUTHORIZING CERTAIN CONTRACTING PARTIES TO SUSPEND THE APPLICATION TO OTHERS, OF ANY CONCESSION OR OTHER OBLIGATION DERIVED FROM THE GENERAL AGREEMENT, AND LASTLY, WHERE SUCH A SUSPENSION OCCURS, AN OPTION GIVEN TO THE AFFECTED PARTY TO WITHDRAW FROM THE AGREEMENT .
FINALLY, WHERE AS A RESULT OF SOME OBLIGATION ASSUMED UNDER THE GENERAL AGREEMENT OR OF A CONCESSION WITH RESPECT TO A PREFERENCE, SERIOUS INJURY IS CAUSED OR THREATENED TO CERTAIN PRODUCERS, ARTICLE XIX GRANTS AN OPPORTUNITY FOR ONE OF THE CONTRACTING PARTIES TO SUSPEND THE OBLIGATION UNILATERALLY, OR TO WITHDRAW OR MODIFY THE CONCESSION, EITHER AFTER CONSULTING ALL THE CONTRACTING PARTIES, OR EVEN, IN THE ABSENCE OF AGREEMENT BETWEEN THE CONTRACTING PARTIES CONCERNED, IF THERE IS URGENCY IN THE MATTER AND BY WAY OF A TEMPORARY MEASURE, WITHOUT PRIOR CONSULTATION .
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89. À cet égard, il résulte de la jurisprudence constante de la Cour que la gravité des infractions au droit de la concurrence de l’Union doit être établie en fonction d’un grand nombre d’éléments, tels que, notamment, les circonstances particulières de l’affaire, son contexte et la portée dissuasive des amendes, et ce sans qu’ait été établie une liste contraignante ou exhaustive de critères devant obligatoirement être pris en compte (voir, notamment, arrêts Dansk Rørindustri e.a./Commission, précité, point 241, ainsi que du 3 septembre 2009, Prym et Prym Consumer/Commission, C‑534/07 P, Rec. p. I‑7415, point 54).
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37 Furthermore, the Court has held that, although, as the law stands at present, Decision No 1/80 does not encroach upon the competence of the Member States to refuse Turkish nationals the right of entry into their territories and to take up first employment there and does not preclude those Member States, in principle, from regulating the conditions under which Turkish nationals work for up to one year as provided for in the first indent of Article 6(1) of that decision, none the less that provision cannot be construed as permitting a Member State to modify unilaterally the scope of the system of gradual integration of Turkish workers in the host State's labour force, by denying a worker who has been permitted to enter its territory and who has lawfully pursued a genuine and effective economic activity for a continuous period of more than one year with the same employer the rights which the three indents of that provision confer on him progressively according to the duration of his employment. The effect of such an interpretation would be to render Decision No 1/80 meaningless and deprive it of any practical effect (see, to that effect, the judgment in Günaydin, paragraphs 36 to 38).
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36 Admittedly, as the law stands at present, Decision No 1/80 does not encroach upon the competence of the Member States to refuse Turkish nationals the right of entry into their territories and to take up first employment, nor does it preclude those Member States, in principle, from regulating the conditions under which they work for up to one year as provided for in the first indent of Article 6(1) of that decision.
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37. It is true that the Court has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (see, inter alia, Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph 20; Case C‑192/94 El Corte Inglés [1996] ECR I‑1281, paragraph 15; Pfeiffer and Others , paragraph 108; and Kücükdeveci , paragraph 46).
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19 The Court has thus recognised that it is compatible with Community law for national rules to prescribe, in the interests of legal certainty, reasonable limitation periods for bringing proceedings. It cannot be said that this makes the exercise of rights conferred by Community law either virtually impossible or excessively difficult, even though the expiry of such limitation periods entails by definition the rejection, wholly or in part, of the action brought (see, in particular, Palmisani, paragraph 28; Case C-188/95 Fantask and Others [1997] ECR I-6783, paragraph 48; and Ansaldo Energia, paragraphs 17 and 18).
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28 As regards the compatibility of a time-limit of the kind provided for in the Legislative Decree with the principle of the effectiveness of Community law, the setting of reasonable limitation periods for bringing proceedings satisfies that requirement in principle, inasmuch as it constitutes an application of the fundamental principle of legal certainty (see, in particular, Case 33/76 Rewe, cited above, paragraph 5).
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46 The German and Netherlands Governments and the United Kingdom consider that Directive 83/189 is solely concerned with relations between the Member States and the Commission, that it merely creates procedural obligations which the Member States must observe when adopting technical regulations, their competence to adopt the regulations in question after expiry of the suspension period being, however, unaffected, and, finally, that it contains no express provision relating to any effects attaching to non-compliance with those procedural obligations.
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66. Inasmuch as AG2R must be regarded as an undertaking engaged in an economic activity for the purposes of Article 102 TFEU, a decision by the public authorities to make compulsory affiliation to a scheme for supplementary reimbursement of healthcare costs for all of the traditional bakery sector, without possibility of exemption, necessarily implies a grant to that body of an exclusive right to receive and manage the contributions paid by the employers and employees in that sector under that scheme. Accordingly, such a body could be regarded as an undertaking holding exclusive rights within the meaning of Article 106(1) TFEU (see, to that effect, Albany , paragraph 90; Brentjens’ , paragraph 90; and Drijvende Bokken , paragraph 80).
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90 It must be observed at the outset that the decision of the public authorities to make affiliation to a sectoral pension fund compulsory, as in this case, necessarily implies granting to that fund an exclusive right to collect and administer the contributions paid with a view to accruing pension rights. Such a fund must therefore be regarded as an undertaking to which exclusive rights have been granted by the public authorities, of the kind referred to in Article 90(1) of the Treaty.
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38. It follows from the foregoing that the application is admissible.
The first plea
Arguments of the parties
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54. It is admittedly true that Article 13(1) of the regulation, codifying settled case‑law (see, in particular, Case C‑301/87 France v Commission [1990] ECR I‑307 ‘Boussac Saint-Frères’ , paragraph 22; Case C‑142/87 Belgium v Commission [1990] ECR I‑959, paragraph 18; and Germany and Pleuger Worthington v Commission , paragraph 26), empowers the Commission, once it finds that aid has been granted or altered without notification, to adopt a decision on whether the aid is compatible or not with the common market on the basis of the information available, where it is faced with a Member State which does not fulfil its duty to cooperate and has not provided the Commission with the information requested. Furthermore, if appropriate, such a decision may, under the conditions laid down in Article 14 of the regulation, call for the recovery of the amount of the aid which has already been paid.
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18 If the Member State, notwithstanding the Commission' s order, fails to provide the information requested, the Commission is empowered to terminate the procedure and to decide, on the basis of the information available to it, whether or not the aid is compatible with the common market . If appropriate, such a decision may call for recovery of the amount of aid which has already been paid .
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29. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Alassini and Others , paragraph 26).
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23
Thus, the Court has ruled that benefits granted under a pension scheme which essentially relates to the employment of the person concerned form part of the pay received by that person and come within the scope of Article 157(2) TFEU (judgment of 7 January 2004 in K.B., C‑117/01, EU:C:2004:7, paragraph 25 and the case-law cited).
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25. Benefits granted under a pension scheme which essentially relates to the employment of the person concerned form part of the pay received by that person and come within the scope of Article 141 EC (see, in particular, Case C-262/88 Barber [1990] ECR I-1889, paragraph 28, and Case C-351/00 Niemi [2002] ECR I-7007, paragraph 40).
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29. Toutefois, il ressort de la jurisprudence de la Cour que, dans la mesure où le recours vise à dénoncer un manquement d’ordre général aux obligations découlant des dispositions du règlement n° 2847/93, qui serait tiré, selon la Commission, notamment de l’attitude systématique et constante de tolérance adoptée par les autorités espagnoles à l’égard de situations non conformes à ce règlement, la production d’éléments complémentaires visant, au stade de la procédure devant la Cour, à étayer la généralité et la constance du manquement ainsi allégué ne saurait être exclue en principe (voir, par analogie, arrêt du 26 avril 2005, Commission/Irlande, C‑494/01, Rec. p. I‑3331, point 37).
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74. Thus, since the appellant disputed the merits of the reasoning in the decisions by which the Commission granted access to a certain number of documents whose content was partially blanked out in order to protect personal data, without claiming that the exceptions provided for in Article 4 were inapplicable to them, the General Court was not obliged to examine those documents (see, to that effect, judgment in Jurašinović v Council , EU:C:2013:777, paragraphs 28 to 30).
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29. Or, il ne saurait être soutenu que, pour apprécier la légalité des motifs de refus d’accès à un document, invoqués par une institution sur le fondement d’une exception dont l’applicabilité n’est pas contestée, le Tribunal soit obligé d’ordonner systématiquement la production de l’intégralité du document dont l’accès est demandé.
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28. It is true that in this case, unlike in Teleos and Others , the decision to refer gives no details concerning the good faith of Twoh and gives no indication as to whether its customer committed a fraud. What is important in this case is the fact that Twoh, being unable to provide the necessary evidence to establish that the goods have in fact been dispatched to the destination Member State, has requested the Netherlands tax authorities to gather information capable of demonstrating the intra-Community nature of its supplies from the competent authority of that latter Member State, in application of the mutual assistance directive and the administrative cooperation regulation. The question that thus arises is whether those tax authorities were required to accede to such a request.
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38. With regard, second, to the assessment of whether legislation such as that at issue in the main proceedings is proportionate, it must be noted that it follows from the case-law of the Court that since Article 30 EC constitutes an exception, which is to be strictly interpreted, to the rule of the free movement of goods within the Community, it is for the national authorities to demonstrate that their rules are necessary in order to achieve the declared purpose and that that objective could not be achieved by less extensive prohibitions or restrictions, or by prohibitions or restrictions having less effect on intra-Community trade (see, to that effect, Case C‑17/93 van der Veldt [1994] ECR I‑3537, paragraph 15; Case C‑189/95 Franzén [1997] ECR I‑5909, paragraphs 75 and 76; Case C‑434/04 Ahokainen and Leppik [2006] ECR I‑9171, paragraph 31; and Rosengren and Others , paragraph 50).
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15 Since it concerns an exception to the principle of the free movement of goods, it is for the national authorities to demonstrate that their rules are consistent with the principle of proportionality, that is to say, that they are necessary in order to achieve the declared purpose, which in the present case is the protection of public health.
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34. Thus, the retention of a functional link of that kind between the various elements transferred allows the transferee to use them — even if they are integrated, after the transfer, in a new and different organisational structure — to pursue an identical or analogous economic activity (see judgment in Klarenberg , C‑466/07, EU:C:2009:85, paragraph 48).
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47. At the outset, it must be borne in mind that it is settled case-law that it cannot be regarded as contrary to European Union law for national law, as far as the withdrawal of administrative measures and the recovery of sums wrongly paid by public authorities are concerned, to take into account, in addition to the principle of legality, the principles of the protection of legitimate expectations and legal certainty, since those principles form part of the legal order of the European Union. Those principles must be observed all the more strictly in the case of rules liable to have financial consequences (see Joined Cases C‑383/06 to C‑385/06 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others [2008] ECR I‑1561, paragraph 52 and case-law cited).
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52. It is common ground that the Court has also decided that it cannot be regarded as contrary to Community law for national law, as far as the withdrawal of administrative measures and the recovery of sums wrongly paid by public authorities are concerned, to take into account, in addition to the principle of legality, the principles of the protection of legitimate expectations and legal certainty, since those principles form part of the legal order of the Community ( Deutsche Milchkontor and Others , cited above, paragraph 30; Joined Cases C‑80/99 to C‑82/99 Flemmer and Others [2001] ECR I‑7211, paragraph 60; Huber , cited above, paragraph 56; and ROM-projecten , cited above, paragraph 24). Those principles must be observed all the more strictly in the case of rules liable to have financial consequences (Case C‑94/05 Emsland‑Stärke [2006] ECR I‑2619, paragraph 43; Case C‑248/04 Koninklijke Coöperatie Cosun [2006] ECR I‑10211, paragraph 79; and ROM‑projecten , cited above, paragraph 26).
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70. Tout d’abord, ainsi qu’il résulte des développements qui précèdent, le règlement n° 338/97 n’a pas procédé à une harmonisation complète du domaine qu’il couvre. Si des mesures plus strictes peuvent être prises ou maintenues par les États membres, il n’en demeure pas moins que celles-ci doivent être compatibles avec l’article 28 CE (voir, notamment, arrêts précités Tridon, points 45 et 46, ainsi que Nationale Raad van Dierenkwekers en Liefhebbers et Andibel, points 14 et 15).
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44. Thirdly, it must also be borne in mind that, although European Union law does not preclude, in principle, a system of prior authorisation, it is nevertheless necessary that the conditions attached to the grant of such authorisation must be justified in the light of the imperatives mentioned above, that they do not exceed what is objectively necessary for that purpose and that the same result cannot be achieved by less restrictive rules. Such a system must, in addition, be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily (see, to that effect, Smits and Peerbooms , paragraphs 82 and 90; Müller-Fauré and van Riet , paragraphs 83 to 85; and Watts , paragraphs 114 to 116).
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83. Although Community law does not therefore in principle preclude a system of prior authorisation for this category of services, the conditions attached to the grant of such authorisation must none the less be justified in the light of the overriding considerations mentioned above and must satisfy the requirement of proportionality referred to in paragraph 68 above.
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18 The international agreements, and in particular the abovementioned New York Convention on the recognition and enforcement of foreign arbitral awards (New York, 10 June 1958, United Nations Treaty Series, Vol. 330, p. 3), lay down rules which must be respected not by the arbitrators themselves but by the courts of the Contracting States. Those rules relate, for example, to agreements whereby parties refer a dispute to arbitration and the recognition and enforcement of arbitral awards. It follows that, by excluding arbitration from the scope of the Convention on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts.
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56
In that regard, it is sufficient to state that, while those two objectives constitute overriding reasons in the public interest capable of justifying a restriction on the exercise of freedom of movement guaranteed by the Treaty (see judgment of 5 July 2012, SIAT, C‑318/10, EU:C:2012:415, paragraphs 36 and 37 and the case-law cited), the legislation at issue in the main proceedings is not suitable for ensuring their attainment, so that those objectives cannot, in a case such as that at issue in the main proceedings, justify any obstacle to freedom of establishment.
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36. In that regard, the Court has already held that the prevention of tax evasion is an overriding reason relating to the public interest, capable of justifying a restriction on the exercise of freedom of movement guaranteed by the Treaty (see, inter alia, Case C-451/05 ELISA [2007] ECR I-8251, paragraph 81), as is the need to guarantee the effectiveness of fiscal supervision (see, inter alia, Case C-101/05 A [2007] ECR I-11531, paragraph 55).
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107. That requirement is backed up by point 2 of Article 4 of the Competition Directive, under which ‘the assignment of radio frequencies for electronic communication services shall be based on objective, transparent, non‑discriminatory and proportionate criteria’.
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26 However, it is settled case-law that actions between a public authority and a person governed by private law fall outside the scope of the Brussels Convention only in so far as that authority is acting in the exercise of public powers (see, to that effect, Case 29/76 LTU v Eurocontrol [1976] ECR 1541, paragraph 4; Case 814/79 Rüffer [1980] ECR 3807, paragraph 8, and Case C-172/91 Sonntag [1993] ECR I-1963, paragraph 20).
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8 IN THE LIGHT OF THOSE CONSIDERATIONS THE COURT HAS SPECIFICALLY HELD IN THAT SAME CASE-LAW THAT WHILST CERTAIN JUDGMENTS GIVEN IN AN ACTION BETWEEN A PUBLIC AUTHORITY AND A PERSON GOVERNED BY PRIVATE LAW MAY COME WITHIN THE AREA OF APPLICATION OF THE CONVENTION THAT IS NOT THE CASE IF THE PUBLIC AUTHORITY IS ACTING IN THE EXERCISE OF ITS PUBLIC AUTHORITY POWERS .
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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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24 It follows that it is not possible to state in general terms, for example by referring to given percentages relating to the degree of recognition attained by the mark within the relevant section of the public, when a mark has a strong distinctive character (see, to that effect, Windsurfing Chiemsee, paragraph 52).
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52 If, on the basis of those factors, the competent authority finds that the relevant class of persons, or at least a significant proportion thereof, identify goods as originating from a particular undertaking because of the trade mark, it must hold that the requirement for registering the mark laid down in Article 3(3) of the Directive is satisfied. However, the circumstances in which that requirement may be regarded as satisfied cannot be shown to exist solely by reference to general, abstract data such as predetermined percentages.
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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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17 The Court has repeatedly held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of each particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation (see, in particular, the judgment in Case C-78/91 Hughes [1992] ECR I-4839, paragraph 14).
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14 The Court has repeatedly held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of the particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation.
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34 Thus it is clear from settled case-law that the change brought about by any repackaging of a trade-marked pharmaceutical product - creating by its very nature the risk of interference with the original condition of the product - may be prohibited by the trade mark proprietor unless the repackaging is necessary in order to enable the marketing of the products imported in parallel and the legitimate interests of the proprietor are also safeguarded (see, to that effect, Bristol-Myers Squibb and Others, paragraph 57).
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49. Such a declaratory, as opposed to a constitutive, character of residence permits, in regard to rights, has been acknowledged by the Court independently of the fact that the permit in question was issued pursuant to the provisions of Directive 68/360 or Directive 90/364 (see, to that effect, Commission v Belgium , paragraph 65).
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65. The conditions for the grant of a residence permit are governed, as regards employed persons, by Directive 68/360, as regards self-employed persons, by Directive 73/148, as regards students, by Directive 93/96, as regards employees and self-employed persons who have ceased their occupational activity, by Directive 90/365, and, as regards nationals of Member States who do not enjoy a right of residence under other provisions of Community law, by Directive 90/364.
– Consideration of the second plea
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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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