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30 As the Court has consistently held, the characteristics of the common system of VAT set out above show that the deduction system is meant to relieve the trader entirely of the burden of VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures that all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT, are taxed in a wholly neutral way. In the absence of any provision empowering the Member States to limit the right of deduction granted to taxable persons, that right must be exercised immediately in respect of all the taxes charged on transactions relating to inputs (see, in particular, Case 50/87 Commission v France [1988] ECR 4797, paragraphs 15 and 16). | 15 From the features of VAT described above it may be inferred, as the Court pointed out in its judgment of 14 February 1985 in Case 268/83 Rompelman (( 1985 )) ECR 655, that the deduction system is meant to relieve the trader entirely of the burden of VAT payable or paid in the course of all his economic activities . The common system of VAT consequently ensures that all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT, are taxed in a wholly neutral way . | 37. In that regard, the Court observed in paragraph 41 of Commission v France , cited above, that the words ‘as soon as possible’ in Article 7(1) of the Directive are an indication that the time-limit laid down in the first subparagraph of Article 2(1) of Directive 91/156 for the transposition of that directive does not relate to the obligation to draw up waste management plans. If that were the case, the words would be meaningless. The Court accordingly inferred that the words ‘as soon as possible’ are to be interpreted as stipulating, in principle, a reasonable period for compliance by the competent authorities of each Member State with that particular obligation, that period being unconnected with the period laid down for transposition of Directive 91/156. |
32. In that connection, it must be stated that the scope of Regulation No 44/2001 is, like that of the Brussels Convention, limited to the concept of ‘civil and commercial matters’. It follows from settled case-law of the Court that that scope is defined essentially by the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject-matter thereof (see, inter alia, Case C‑292/05 Lechouritou and Others [2007] ECR I‑1519, paragraph 30 and the case-law cited). | 30. According to the Court, that interpretation results in the exclusion of certain legal actions and judicial decisions from the scope of the Brussels Convention, by reason either of the legal relationships between the parties to the action or of the subject-matter of the action (see LTU , paragraph 4; Rüffer , paragraph 14; Baten , paragraph 29; Préservatrice foncière TIARD , paragraph 21; ČEZ , paragraph 22; and Case C‑167/00 Henkel [2002] ECR I-8111, paragraph 29). | 36
As the Court has already held, it is necessary to examine the content of the activities in question, (see, to that effect, judgments in Arthur Andersen, C‑472/03, EU:C:2005:135, paragraph 32; Abbey National, C‑169/04, EU:C:2006:289, paragraph 66, and J.C.M. Beheer, C‑124/07, EU:C:2008:196, paragraph 17). |
19. The immediate aim of the prohibition on registering purely functional shapes set out in the second indent of Article 3(1)(e) of the trade marks directive and the prohibition on registering shapes which give substantial value to the goods set out in the third indent of that provision is to prevent the exclusive and permanent right which a trade mark confers from serving to extend indefinitely the life of other rights which the EU legislature has sought to make subject to limited periods (see, to that effect, judgment in Lego Juris v OHIM , EU:C:2010:516, paragraph 45). | 45. First, the inclusion in Article 7(1) of Regulation No 40/94 of the prohibition on registration as a trade mark of any sign consisting of the shape of goods which is necessary to obtain a technical result ensures that undertakings may not use trade mark law in order to perpetuate, indefinitely, exclusive rights relating to technical solutions. | 49. Dans ces conditions, la Cour considère que la condamnation du Royaume de Suède au paiement d’une astreinte constitue un moyen financier approprié afin d’assurer l’exécution complète de l’arrêt Commission/Suède (EU:C:2012:192) (voir, en ce sens, arrêts Commission/Italie, C‑496/09, EU:C:2011:740, point 45; Commission/Espagne, EU:C:2012:781, point 114, et Commission/Irlande, EU:C:2012:827, point 35).
– Sur le montant de l’astreinte |
50. Thus, it is settled case-law that each Member State is free to allocate powers internally and to implement Community acts which are not directly applicable by means of measures adopted by regional or local authorities, provided that that allocation of powers enables the Community legal measures in question to be implemented correctly (Case C-156/91 Hansa Fleisch Ernst Mundt [1992] ECR I‑5567, paragraph 23). | 23 It must next be made clear that each Member State is free to allocate powers internally and to implement Community acts which are not directly applicable by means of measures adopted by regional or local authorities, provided that that allocation of powers enables the Community legal measures in question to be implemented correctly. | Quant à l’allégation selon laquelle le Tribunal aurait omis de répondre à l’argument tiré de l’absence de valeur probante de l’indice documentaire produit par Zumex, qui aurait pourtant été pris en compte par la chambre de recours, il suffit de rappeler que, selon une jurisprudence constante, l’obligation de motivation qui incombe au Tribunal n’impose pas à ce dernier de fournir un exposé qui suivrait, de manière exhaustive et un par un, tous les raisonnements articulés par les parties au litige et la motivation du Tribunal peut être implicite, à condition qu’elle permette aux intéressés de connaître les raisons pour lesquelles le Tribunal n’a pas fait droit à leurs arguments et à la Cour de disposer des éléments suffisants pour exercer son contrôle (arrêts du 5 juillet 2011, Edwin/OHMI, C‑263/09 P, EU:C:2011:452, point 64 et jurisprudence citée, ainsi que du 19 mars 2015, MEGA Brands International/OHMI, C‑182/14 P, EU:C:2015:187, point 54). |
22 The Court stated at paragraph 22 of its judgment in Casarin, cited above, that, in order to determine whether the increase in the progression coefficient of the differential tax above the 18 CV threshold has a discriminatory or protective effect in the sense contemplated by Article 95 of the Treaty, it must be examined whether that increase may deter consumers from purchasing vehicles with a fiscal horsepower of over 18 CV, which are all of foreign manufacture, to the benefit of vehicles of domestic manufacture. | 23 If the increase in the coefficient for vehicles with a fiscal horsepower of over 18 CV does indeed deter some consumers from buying such vehicles, those consumers will choose a model in the tax band immediately below, the 17-18 CV band, or even, as the Advocate General notes in point 27 of his Opinion, a model in the 15-16 CV band. | 63. Article 13(4) of Regulation No 97/95 does not contain any derogation from application of the penalty which it introduces, unlike provisions such as Article 9(2) of Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391, p. 36). That provision, which is referred to in Case C-304/00 Strawson and Gagg & Sons [2002] ECR I-10737, paragraph 62, and to which Emsland-Stärke refers in its observations, states that the penalty it provides for must not be imposed if the farmer shows that his action was accurately based on incorrect information recognised by the competent authority. |
41
That being said, it must be possible to classify any waste treatment operation as either a ‘disposal’ or a ‘recovery’ operation, and, as is apparent from Article 3(19) of Directive 2008/98, a single operation may not be classified at the same time as both a ‘disposal’ and a ‘recovery’ operation. Consequently, as is the case in the main proceedings, in a situation where, having regard solely to the terms of the operations in question, a waste treatment operation cannot be brought within one of the operations or categories of operations referred to in Annexes I and II to the directive, such operations must be classified on a case-by-case basis in the light of the objectives and definitions set out in the directive (see, by analogy, judgment of 27 February 2002 in ASA, C‑6/00, EU:C:2002:121, paragraphs 62 to 64). | 62 However, it is evident from the Directive that any treatment of waste falling within its scope of application must be classifiable either as disposal or recovery of waste, in order that the separate rules established by the Directive for those two categories of operations can be applied, in particular with regard to the authorisation system imposed on establishments and undertakings which carry out such operations. As is clear from paragraph 38 of the present judgment, the application of the Regulation also presupposes, with regard to determining the rules applicable to a shipment of waste, that the purpose of the shipment can be classified as a disposal or as a recovery. | 47 The Court has also held that if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (Case C-168/98 Luxembourg v Parliament and Council [2000] ECR I-9131, paragraph 62). |
42. The system introduced by those articles thus establishes a connection between the competence to provide pensions and the obligation to bear the costs of benefits in kind, that obligation consequently being incidental to an actual competence in respect of pensions. The cost of benefits in kind cannot therefore be assigned to the institution of a Member State which has only a hypothetical competence in respect of pensions. It follows that Article 27 of Regulation No 1408/71, like Article 28 of the regulation, when it refers to a pension payable, refers to a pension which is actually paid to the person concerned (see, to that effect, judgment in Rundgren , C‑389/99, EU:C:2001:264, paragraph 47). | 47 The connection thus established under that system between the competence to provide pensions and the obligation to bear the cost of benefits in kind leads to the conclusion that that obligation is incidental to an actual competence in respect of pensions. Therefore, the cost of benefits in kind cannot be borne by the institution of a Member State which has only a hypothetical competence in respect of pensions. It follows that Articles 27, 28 and 28a of Regulation No 1408/71, when they refer to a pension payable, are concerned with a pension which is actually paid to the person concerned. | 42
In the present case, it is apparent from the order for reference that a large number of subscribers to Ziggo and XS4ALL have downloaded media files using the online sharing platform TPB. It is also clear from the observations submitted to the Court that this platform is used by a considerable number of persons, the operators of TPB claiming, on their online sharing platform, to have several dozens of millions of ‘peers’. In this respect, the communication at issue in the main proceedings covers, at the very least, all of the platform’s users. These users can access, at any time and simultaneously, the protected works which are shared by means of the platform. Thus, that communication is aimed at an indeterminate number of potential recipients and involves a large number of persons (see, to this effect, judgment of 26 April 2017, Stichting Brein, C‑527/15, EU:C:2017:300, paragraph 45 and the case-law cited). |
37 Finally, Ms Grant submits that it follows from P v S that differences of treatment based on sexual orientation are included in the `discrimination based on sex' prohibited by Article 119 of the Treaty. | 13 In any event, the fact that pregnancy is assimilated to sickness and that the respective provisions of the Ziektewet and the Ziekengeldreglement governing reimbursement of the daily benefits payable in connection with pregnancy are not the same cannot be regarded as evidence of discrimination on grounds of sex within the meaning of the Directive . Lastly, in so far as as an employer' s refusal of employment based on the financial consequences of absence due to pregnancy constitutes direct discrimination, it is not necessary to consider whether national provisions such as those mentioned above exert such pressure on the employer that they prompt him to refuse to appoint a pregnant woman, thereby leading to discrimination within the meaning of the Directive . | 25. In that connection, it is sufficient to point out that, although the Court does not, in a reference for a preliminary ruling, have jurisdiction to give a ruling on the compatibility of a national measure with European Union law, it does have jurisdiction to supply the national court with a ruling on the interpretation of that law so as to enable that court to determine whether such compatibility exists and decide the case before it (Case C‑439/06 citiworks [2008] ECR I‑3913, paragraph 21 and the case law cited). |
28. In its case-law, the Court has also treated as measures having equivalent effect, prohibited by Article 28 EC, national provisions making a product lawfully manufactured and marketed in another Member State subject to additional controls, save in the case of exceptions provided for or allowed by Community law (see, inter alia, Case C‑390/99 Canal Satélite Digital [2002] ECR I-607, paragraphs 36 and 37, and Case C‑14/02 ATRAL [2003] ECR I-4431, paragraph 65). | 36 Second, a measure introduced by a Member State cannot be regarded as necessary to achieve the aim pursued if it essentially duplicates controls which have already been carried out in the context of other procedures, either in the same State or in another Member State. | 29. In that respect, the order for reference and the written and oral observations have given the Court sufficient information to enable it to interpret the rules of Community law in relation to the situation which is the subject of the main proceedings (see, in particular, Case C-316/93 Vaneetveld [1994] ECR I-763, paragraph 14, and Case C-378/97 Wijsenbeek [1999] ECR I-6207, paragraph 21). |
60. However, the errors of law thus made by the Court of First Instance as regards the duty to state reasons and the scope of the judgment in Atlanta v European Community do not invalidate the contested judgment, if the operative part thereof and in particular the rejection of the plea at first instance concerning the SPS Agreement, appears founded on other legal grounds (see to that effect Case C-367/95 P Commission v Sytraval and Brink ' s France [1998] ECR I-1719, paragraph 47). | 47 The error of law thus committed by the Court of First Instance does not, however, invalidate its judgment, since, as the Commission has conceded, the decision in question was of direct and individual concern to the complainants. In finding in its decision that the investigation had revealed no grounds for concluding that State aid existed within the meaning of Article 92 of the Treaty, the Commission implicitly refused to initiate the procedure under Article 93(2). It follows from the judgments of the Court cited in paragraphs 40 and 41 above that, in such a situation, the persons intended to benefit from the procedural guarantees afforded by Article 93(2) may secure compliance therewith only if they are able to challenge the decision in question before the Community judicature under the fourth paragraph of Article 173 of the Treaty. That principle is of equal application, whether the ground on which the decision is taken is that the Commission regards the aid as compatible with the common market or that, in its view, the very existence of aid must be discounted. | 63. The loss of a family home is not only such as to seriously undermine consumer rights (the judgment in Aziz , EU:C:2013:164, paragraph 61), but it also places the family of the consumer concerned in a particularly vulnerable position (see, to that effect, the Order of the President of the Court in Sánchez Morcillo and Abril García , EU:C:2014:1388, paragraph 11). |
29. As far as concerns, in the first place, the objectives of Regulation No 1393/2007, it should be noted that that regulation, which was adopted on the basis of Article 61(c) EC, seeks, as is apparent from recital 2 in the preamble thereto, to establish a system for intra-Community service of judicial and extrajudicial documents in civil or commercial matters, for the purpose of the proper functioning of the internal market (see judgments in Alder , C‑325/11, EU:C:2012:824, paragraph 29, and Fahnenbrock and Others , C‑226/13, EU:C:2015:383, paragraph 40). | 29. In that regard, concerning, first, the scheme of Regulation No 1393/2007, it must be borne in mind that that regulation, which was adopted on the basis of Article 61(c) EC, seeks, as stated in recital 2 in the preamble thereto, to establish a system for intra-Community service the purpose of which is the proper functioning of the internal market (see, in this sense, Case C-14/08 Roda Golf & Beach Resort [2009] ECR I-5439, paragraphs 53 to 55). | 27. There could, however, be discrimination for the purposes of the Treaty between residents and non-residents only if, notwithstanding their residence in different Member States, it were established that, having regard to the purpose and content of the national provisions in question, the two categories of taxpayers are in a comparable situation (see judgment in Commission v Estonia , C‑39/10, EU:C:2012:282, paragraph 51). |
47. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake ( Bergaderm and Goupil v Commission , cited above, paragraph 35). | 35 That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake. | 37. In the case in the main proceedings, it is clear that a company incorporated under Netherlands law wishing to transfer its place of effective management outside Netherlands territory, in the exercise of its right guaranteed by Article 49 TFEU, is placed at a disadvantage in terms of cash flow compared to a similar company retaining its place of effective management in the Netherlands. In accordance with the national legislation at issue in the main proceedings, the transfer of the place of effective management of a Netherlands company to another Member State entails the immediate taxation of the unrealised capital gains relating to the assets transferred, whereas such gains are not taxed when such a company transfers its place of management within the Netherlands. The capital gains relating to the assets of a company transferring its place of management within the Netherlands are not taxed until they are actually realised and to the extent that they are realised. That difference of treatment relating to the taxation of capital gains is liable to deter a company incorporated under Netherlands law from transferring its place of management to another Member State (see, to that effect, de Lasteyrie du Saillant , paragraph 46, and N , paragraph 35). |
98. Thus, the Court has previously held that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (Case C-333/07 Régie Networks [2008] ECR I-10807, paragraph 63 and the case-law cited). | 63. According to settled case‑law, the statement of reasons required by Article 190 of the EC Treaty (now Article 253 EC) must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, Case C‑390/06 Nuova Agricast [2008] ECR I-0000, paragraph 79, and Joined Cases C‑341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I‑0000, paragraph 88 and the case‑law cited). | 57. Secondly, pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (see judgment of 22 November 2012 in Case C‑89/11 P E.ON Energie v Commission [2012] ECR I‑0000, paragraph 62 and case-law cited). |
43. Having regard to those characteristics, if the consumer’s objection to the enforcement of the mortgage against his property is dismissed, the Spanish procedural system, taken as a whole and in the manner applicable in the main proceedings, exposes consumers, and possibly, as is the case in the main proceedings, their family, to the risk of losing their dwelling in an enforced sale, while the enforcing court may have, at most, delivered a rapid assessment of the validity of the contractual clauses upon which the seller or supplier bases his application. The protection that the consumer, as a mortgage debtor against whom enforcement proceedings are brought, might obtain by way of a separate judicial scrutiny undertaken in the context of substantive proceedings brought in parallel with the enforcement proceedings, cannot offset that risk because, even if the scrutiny revealed the existence of an unfair clause, the consumer would not be granted a remedy reflecting the damage he had suffered by restoring him to the situation he was in before the enforcement proceedings against the mortgaged property, but, at best, an award of compensation. The purely compensatory nature of the remedy that might be awarded to the consumer would confer on him only incomplete and insufficient protection. It would not constitute either adequate or effective means, within the meaning of Article 7(1) of Directive 93/13, of preventing the continued use of the clause, found to be unfair, in the instrument that contains a pledge by way of mortgage against a property on the basis of which enforcement proceedings were brought against that property (see, to that effect, Aziz , EU:C:2013:164, point 60). | 60. As also observed by the Advocate General in point 50 of her Opinion, without that possibility, where, as in the main proceedings, enforcement in respect of the mortgaged immovable property took place before the judgment of the court in the declaratory proceedings declaring unfair the contractual term on which the mortgage is based and annulling the enforcement proceedings, that judgment would enable that consumer to obtain only subsequent protection of a purely compensatory nature, which would be incomplete and insufficient and would not constitute either an adequate or effective means of preventing the continued use of that term, contrary to Article 7(1) of Directive 93/13. | 70 That provision, which in the field of agriculture constitutes an expression of the obligations imposed on the Member States by Article 5 of the EC Treaty (now Article 10 EC), defines the principles according to which the Community and the Member States are to ensure the implementation of Community decisions on the agricultural intervention financed by the EAGGF and combat fraud and irregularities in relation to those operations (see Joined Cases 146/81, 192/81 and 193/81 BayWa and Others [1982] ECR 1503, paragraph 13). It imposes on the Member States the obligation to take the measures necessary to satisfy themselves that the transactions financed by the EAGGF are actually carried out and are executed correctly, even if the specific Community act dos not expressly provide for the adoption of particular supervisory measures (see Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraphs 16 and 17). |
48. However, considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment by the national legislature of a scheme cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed and if its amount is calculated by reference to the last salary ( Beune , paragraph 45; Evrenopoulos , paragraph 21; Griesmar , paragraph 30; Niemi, paragraph 47; and Schönheit and Becker , paragraph 58). | 45 On the other hand, considerations of social policy, of State organization, or of ethics or even budgetary preoccupations which influenced, or may have influenced, the establishment by the national legislature of a scheme such as the scheme at issue cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service and if its amount is calculated by reference to the civil servant' s last salary. The pension paid by the public employer is therefore entirely comparable to that paid by a private employer to his former employees. | 55. Moreover, it follows from the same case-law that in the case of acts adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the Commission or the Council upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare for the final decision ( Netherlands v Commission , cited above, paragraph 26). |
17 As the Court has repeatedly held, revision is not an appeal procedure but an exceptional review procedure that allows the authority of res judicata attaching to a final judgment to be called in question on the basis of the findings of fact relied upon by the court. Revision presupposes the discovery of elements of a factual nature which existed prior to the judgment and which were unknown at that time to the court which delivered it as well as to the party applying for revision and which, had the court been able to take them into consideration, could have led it to a different determination of the proceedings (see, in particular, Case C-130/91 REV II ISAE/VP and Interdata v Commission, cited above, paragraph 6). | 6 It follows that revision is not an appeal procedure but an exceptional review procedure that allows the authority of res judicata attaching to a final judgment to be called in question on the basis of the findings of fact relied upon by the court. Revision presupposes the discovery of elements of a factual nature which existed prior to the judgment and which were unknown at that time to the court which delivered it as well as to the party applying for revision and which, had the court been able to take them into consideration, could have led it to a different determination of the proceedings (see, most recently, the order of 25 February 1992 in Case C-185/90 P-REV Gill v Commission [1992] ECR I-993, paragraph 12, and the judgment in Case C-130/91 REV ISAE/VP and Interdata v Commission [1995] ECR I-407, paragraph 6). | 115. It is for the Court to assess in each case, in the light of the circumstances of the case, the financial penalties to be imposed (see Case C-304/02 Commission v France , paragraph 86, and Case C-177/04 Commission v France [2006] ECR I-2461, paragraph 58). |
68
In that regard, the Court has stated that that approach is intended to apply only if there is a valid point of reference (judgments of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 96, and of 28 January 2015, ÖBB Personenverkehr, C‑417/13, EU:C:2015:38, paragraph 47). That is so in the case in the main proceedings. | 96. It should be noted that that approach is intended to apply only if there is such a valid point of reference. However, it should be noted that there is no such valid point of reference in the context of legislation such as that at issue in the main proceedings, under which it is not possible to identify a category of favoured civil servants. Paragraphs 27 and 28 of the old version of the BbesG apply to all civil servants upon their appointment and, as is apparent from paragraph 42 above, the discriminatory aspects arising from those provisions potentially affect all civil servants. | 21 The requirement laid down by that article that recourse be available to the courts reflects a general principle of law which underlies the constitutional traditions common to the Member States and which is also enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (see, in particular, Johnston, paragraph 18). |
46. The difference in treatment which arises from a condition of residence being imposed on students who are the children of frontier workers thus constitutes indirect discrimination on the ground of nationality which is in principle prohibited, unless it is objectively justified. In order to be justified, it must be appropriate for securing the attainment of a legitimate objective and must not go beyond what is necessary to attain that objective (see, to that effect, Case C‑73/08 Bressol and Others [2010] ECR I‑2735, paragraphs 47 and 48, and Commission v Netherlands , paragraph 55).
The pursuit of a legitimate objective | 47. As stated in paragraph 41 of the present judgment, a difference in treatment, such as that put in place by the decree of 16 June 2006, constitutes indirect discrimination on the ground of nationality which is prohibited, unless it is objectively justified. | 79. It should be added that the Commission is also wrong to criticise the appellants, at the stage of present appeal, for having their action for damages before the national court on a date after that at which they brought their action for annulment before the General Court. It is apparent from the Court’s case-law referred to in paragraphs 56 and 69 of this judgment that the possibility of an action for damages suffices to justify such an interest in bringing proceedings, in so far as that interest is not hypothetical. In the present case, it is not disputed that the appellants referred to the commencement of that action for damages in their application lodged before the General Court and that that action, as is apparent from paragraph 42 of the order under appeal, was indeed brought before the adoption of the order under appeal. |
67 As regards the present references for a preliminary ruling, it should be observed that this is the first time that the principle of legitimate expectations has been invoked by a Government in support of a request to limit the temporal effects of a judgment. That principle, which is the corollary of the principle of legal certainty (judgments in Case C-63/93 Duff and Others v Minister for Agriculture and Food, Ireland, and the Attorney General [1996] ECR I-569, paragraph 20, and Case C-107/97 Rombi and Arkopharma [2000] ECR I-3367, paragraph 66), is generally relied upon by individuals (traders) in a situation where they have legitimate expectations created by the public authorities (see, for example, the judgment in Duff and Others, cited above, paragraph 22, and the case-law cited there). As the Advocate General observes in point 83 of his Opinion, the principle of legitimate expectations cannot be relied on by a Government in order to avoid the consequences of a decision of the Court declaring a Community provision invalid, since it would jeopardise the possibility for individuals to be protected against conduct of the public authorities based on unlawful rules. | 66 It is true that, as Arkopharma has observed, the principle of the protection of legitimate expectations is the corollary of the principle of legal certainty which requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by Community law remain foreseeable (see Case C-63/93 Duff and Others v Minister for Agriculture and Food, Ireland, and the Attorney General [1996] ECR I-569, paragraph 20). | 35
According to the settled case-law of the Court, all the provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by Union nationals of occupational activities of all kinds throughout the EU, and preclude measures that might place Union nationals at a disadvantage when they wish to pursue an activity in the territory of a Member State other than their Member State of origin. In that context, nationals of the Member States have in particular the right, which they derive directly from the Treaty, to leave their Member State of origin to enter the territory of another Member State and reside there in order to pursue an activity there. As a result, Article 45 TFEU precludes any national measure which is capable of hindering or rendering less attractive the exercise by Union nationals of the fundamental freedoms guaranteed by that article (see, to that effect, judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 33 and the case-law cited). The same is true of restrictions of the freedom of establishment laid down in Article 49 TFEU (see, to that effect, judgments of 5 December 2013, Venturini and Others, C‑159/12 to C‑161/12, EU:C:2013:791, paragraph 30, and of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 47 and the case-law cited). |
34 As the Court held in paragraph 42 of Tögel, cited above, it is settled case-law (see the judgment in Case 31/87 Beentjes v Netherlands State [1988] ECR 4635, paragraph 40) that whenever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied on by individuals against the State where that State fails to implement the directive in national law within the prescribed period or where it fails to implement it correctly. | 40 Furthermore, the Court has consistently held ( see most recently the judgment of 26 February 1986 in Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority (( 1986 )) ECR 723 ) that where the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied on by individuals against the State where that State fails to implement the directive in national law within the prescribed period or where it fails to implement the directive correctly . | 21. It is apparent from the order for reference and, in particular, from the first two questions asked by the national court that the latter considers that the outcome of the main proceedings depends essentially on the interpretation of Article 19 of Regulation No 1768/92. The Court has already held that the European Union legislature included that article in the regulation’s transitional provisions in order to limit the adverse consequences of the expiry or reduction of the six-month period laid down in Article 7(1) of the regulation and to make it possible for products which had already obtained authorisation to be placed on the market as medicinal products on the date on which the regulation entered into force to take advantage of the scheme established by the regulation. Article 19(2) operates, in the circumstances provided for in Article 19(1), as a derogation from Article 7 of the regulation (see, to this effect, Case C-110/95 Yamanouchi Pharmaceutical [1997] ECR I-3251, paragraph 19, and Case C‑127/00 Hässle [2003] ECR I‑14781, paragraph 29). |
25. Consequently, although Directive 2003/88 does not preclude national legislation or practices which allow a worker on sick leave to take paid annual leave during that sick leave ( Schultz-Hoff and Others , paragraph 31), it follows from paragraph 22 of the present judgment that, where that worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period. | 31. On the other hand, nor does Directive 2003/88 preclude national legislation or practices which allow a worker on sick leave to take paid annual leave during that sick leave. | 37
It is also to be observed that, by using the words ‘measures for the approximation’ in Article 114 TFEU, the authors of the Treaty intended to confer on the EU legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features (see judgments in Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraph 42, and United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 102). |
49
In that regard, it must be borne in mind that when a question on the validity of a measure adopted by the institutions of the European Union is raised before a national court or tribunal, it is for that court or tribunal to decide whether a preliminary ruling on the matter is necessary to enable it to give judgment and consequently whether it should ask the Court to rule on that question. Consequently, where the questions referred by the national court or tribunal concern the validity of a provision of EU law, the Court is, as a general rule, obliged to give a ruling (judgment of 3 June 2008, Intertanko and Others, C‑308/06, EU:C:2008:312, paragraph 31 and the case-law cited). | 31. In that regard, it is to be remembered that, when a question on the validity of a measure adopted by the institutions of the European Community is raised before a national court, it is for that court to decide whether a decision on the matter is necessary to enable it to give judgment and, consequently, whether it should request the Court to rule on that question. Accordingly, where the national court’s questions relate to the validity of a provision of Community law, the Court is obliged in principle to give a ruling ( British American Tobacco (Investments) and Imperial Tobacco , paragraph 34 and the case-law cited). | 25 The Court's case-law also shows that where, as in this case, implementation by the Council of a common policy requires it to assess a complex economic situation, its discretion is exercisable not only in relation to the nature and scope of the provisions which are to be adopted but also, to a certain extent, to the findings as to the basic facts, especially in the sense that it is free to base its assessment, if necessary, on findings of a general nature (judgments in Case 166/78 Italy v Council [1979] ECR 2575, paragraph 14; Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 25). |
28. The Court notes as a preliminary point that, even though the agreement at issue in the main proceedings was concluded prior to the Republic of Austria’s accession to the European Union, the relevant Community rules apply to such an agreement as from the date of that State’s accession (see, to that effect, Case C‑76/97 Tögel [1998] ECR I‑5357, paragraph 14). | 14 By virtue of Article 168 of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, of 24 June 1994 (OJ 1994 C 241, p. 21), Directive 92/50 was to be transposed into Austrian law by 1 January 1995. It is not disputed that transposition into national law occurred only on 1 January 1997, that is to say after the order for reference was made.
The main proceedings | 44. En outre, il y a lieu de relever que l’article 36 de l’accord EEE est analogue à l’article 56 TFUE, de telle sorte que les considérations énoncées aux points 40 à 43 du présent arrêt s’appliquent, en principe, également à l’article 36 de l’accord EEE (voir, notamment, arrêts Commission/Belgique, C‑383/10, EU:C:2013:364, point 71, et Commission/Espagne, C‑678/11, EU:C:2014:2434, point 66). |
89 As is clear from the wording of that provision, Annex I, Point I, C, of Regulation No 1408/71 clarified or narrowed the definition of employed person within the meaning of Article 1(a)(ii) of that regulation solely for the purpose of the grant of family benefits pursuant to Title III, Chapter 7 (Martínez Sala, cited above, paragraph 43). | 43 As is clear from the wording of that provision, Annex I, point I, C, of Regulation No 1408/71 clarified or narrowed the definition of employed person within the meaning of Article 1(a)(ii) of that regulation solely for the purposes of the grant of family benefits pursuant to Title III, Chapter 7 of the regulation. | 42. The introduction and maintenance of reduced rates of VAT lower than the standard rate fixed in Article 12(3)(a) of the Sixth Directive are permissible only if they do not infringe the principle of fiscal neutrality, inherent in the common system of VAT, which precludes treating similar goods and supplies of services, which are thus in competition with each other, differently for VAT purposes (see, inter alia, Case C‑481/98 Commission v France [2001] ECR I‑3369, paragraphs 21 and 22, and Case C‑109/02 Commission v Germany [2003] ECR I‑12691, paragraph 20). |
62. It must be noted in that regard that the Court has already held that a Member State in whose territory an offence is committed has sole competence to punish that offence by ordering, as necessary, withdrawal of the driving licence or of the right to drive, with or without an order that no application may be made for the issue of a new driving licence during a particular period (see judgment in Weber , C‑1/07, EU:C:2008:640, paragraph 38). | 38. As the Advocate General observes in point 42 of his Opinion, the Member State in whose territory an offence is committed has sole competence to punish that offence by ordering, as necessary, withdrawal of the driving licence or of the right to drive, with or without an order that no application may be made for the issue of a new driving licence during a particular period. | 5 Likewise, in its judgment in Case 184/85 Commission v Italy [1987] ECR 2013, paragraph 15, the Court declared that, by imposing and maintaining in force a tax on the consumption of fresh bananas which was applicable to bananas originating in other Member States, the Italian Republic had failed to fulfil its obligations under the second paragraph of Article 95 of the Treaty. |
40
It is also clear from the obligations to cooperate arising from Article 4(3) TEU that those obligations would not be fulfilled — and the aims of Article 14(2)(a) of Regulation No 1408/71 and Article 12a(1a) of Regulation No 574/72 would be thwarted — if the competent institution of the Member State in which the work is carried out were to consider that it was not bound by the E 101 certificate and made such workers subject to its own social security system (see, by analogy, judgment of 30 March 2000, Banks and Others, C‑178/97, EU:C:2000:169, paragraph 39 and the case-law cited). | 39 It is clear from the obligations to cooperate arising from Article 5 of the Treaty that those obligations would not be fulfilled - and the aims of Article 14a(1)(a) of Regulation No 1408/71 and Article 11(a) of Regulation No 574/72 would be thwarted - if the competent institution of the Member State in which the work assignment is carried out were to consider that it was not bound by the certificate and made the self-employed person subject to its own social security system (Fitzwilliam Executive Search, paragraph 52). | 36
In that regard, it must be borne in mind, first, that the principle of equal treatment requires tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all tenderers must be subject to the same conditions. Second, the obligation of transparency, which is its corollary, is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. That obligation implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (see, to that effect, judgment of 6 November 2014 in Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 44 and the case-law cited). |
42
The non-contractual liability of a Member State for damage caused by a decision of a national court adjudicating at last instance which infringes a rule of EU law is governed by the same conditions (see judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 52, and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 23 and the case-law cited). | 52. State liability for loss or damage caused by a decision of a national court adjudicating at last instance which infringes a rule of Community law is governed by the same conditions. | 30. Thus, the criteria and/or thresholds mentioned in Article 4(2)(b) of Directive 85/337 are designed to facilitate examination of the actual characteristics of any given project in order to determine whether it is subject to the requirement to carry out an assessment, and not to exempt in advance from that obligation certain whole classes of projects listed in Annex II to that directive which may be envisaged on the territory of a Member State (see, to that effect, WWF and Others , paragraph 37 and the case-law cited). |
29. In that respect, it should be noted that, according to the settled case‑law of the Court, indirect discrimination for the purposes of Article 4 of Directive 79/7 arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, inter alia, Brachner , paragraph 56). | 56. According to the Court's settled case-law, indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, inter alia, Case C‑537/07 Gómez-Limón Sánchez-Camacho [2009] ECR I‑6525, paragraph 54 and the case-law cited). | 21 As the Court has held (see Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607; Barber, cited above, paragraph 12; Case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf [1993] ECR I-4879, paragraph 8), the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being "pay" within the meaning of Article 119. |
46. In particular, as regards the public interest of having effective leniency programmes referred to by the Austrian Government in the present case, it should be observed that, given the importance of actions for damages brought before national courts in ensuring the maintenance of effective competition in the European Union (see Courage and Crehan , paragraph 27), the argument that there is a risk that access to evidence contained in a file in competition proceedings which is necessary as a basis for those actions may undermine the effectiveness of a leniency programme in which those documents were disclosed to the competent competition authority cannot justify a refusal to grant access to that evidence. | 27 Indeed, the existence of such a right strengthens the working of the Community competition rules and discourages agreements or practices, which are frequently covert, which are liable to restrict or distort competition. From that point of view, actions for damages before the national courts can make a significant contribution to the maintenance of effective competition in the Community. | 32
Therefore, the exemption of supplies of human blood provided for under Article 132(1)(d) of Directive 2006/112 must be understood as being aimed at ensuring that the supply of goods contributing to healthcare or which have a therapeutic purpose does not become inaccessible by reason of the increased costs of those products if their supply were subject to VAT (see, by analogy, judgment of 26 February 2015, VDP Dental Laboratory and Others, C‑144/13, C‑154/13 and C‑160/13, EU:C:2015:116, paragraph 46 and the case-law cited). |
12. It must be borne in mind, first of all, that, according to settled case-law, although direct taxation is a competence of the Member States, they must none the less exercise it consistently with Community law (see Case C-334/02 Commission v France [2004] ECR I-2229, paragraph 21, and Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 29). | 29. In that regard, it must be borne in mind that, according to settled case-law, although direct taxation falls within their competence, Member States must none the less exercise that competence consistently with Community law (see, in particular, Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 37 and the case-law cited). | 101. Moreover, according to equally well-established case-law, the concept of State aid does not refer to State measures which differentiate between undertakings and which are, therefore, prima facie selective where that differentiation arises from the nature or the general scheme of the system of which they form part (see to that effect, inter alia, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , paragraph 42; Portugal v Commission , paragraph 52; British Aggregates v Commission , paragraph 83; and Joined Cases C-106/09 P and C-107/09 P Commission and Spain v Government of Gibraltar and United Kingdom [2011] ECR I-11113, paragraph 145). |
36
More particularly, with respect to the award of a contract which, having regard to its value, does not come within the scope of Directive 2004/17, the Court may take account of the fundamental rules and general principles of the FEU Treaty, in particular Articles 49 and 56 thereof and the principles of equal treatment and non-discrimination and the obligation of transparency which derive from them, provided that it is of certain cross-border interest. Although not covered by Directive 2004/17, such contracts are still subject to compliance with those rules and principles (see, to that effect, judgments of 23 December 2009, Serrantoni and Consorzio stabile edili, C‑376/08, EU:C:2009:808, paragraphs 22 to 24; of 18 December 2014, Gennerali-Providencia Biztositó, C‑470/13, EU:C:2014:2469, paragraph 27; and of 6 October 2016, Tecnoedi Costruzioni, C‑318/15, EU:C:2016:747, paragraph 19). | 27. In the second place, in so far as the provisions of the TFEU relied on by the referring court are concerned, it must be observed that, where a public contract does not come within the scope of Directive 2004/18, because it falls short of the relevant threshold laid down in Article 7 of that directive, that contract is subject to the fundamental rules and general principles of that treaty, provided that it is of certain cross-border interest in the light, inter alia, of its value and the place where it is carried out (see, to that effect, judgments in Ordine degli Ingegneri della Provincia di Lecce and Others , C‑159/11, EU:C:2012:817, paragraph 23, and Consorzio Stabile Libor Lavori Pubblici , C‑358/12, EU:C:2014:2063, paragraph 24). | 21. Secondly, the rules concerning journey times and resting periods, where transport is by sea, are governed by point 48.7(a) and (b) of that annex. Point 48.7(a) lays down the general provisions applicable to transport by sea and point 48.7(b) specifies the conditions under which a resting period of 12 hours is mandatory in the case of transport by roll-on/roll-off ferry on a regular and direct link between two geographical points of the Community (see, to that effect, Case C‑207/06 Schwaninger [2008] ECR I-0000, paragraphs 23, 24 and 30). |
54. Il y a lieu de constater que l’instauration d’une pratique nationale, telle que la présomption de conformité en cause en l’espèce, introduite par l’État membre et exécutée avec son concours a également, au moins potentiellement, un effet sur les importations de produits de construction en cause, en provenance des autres États membres, comparable à celui résultant d’actes gouvernementaux à caractère obligatoire (voir, en ce sens, arrêt Commission/Irlande, précité, point 27). | 27 It must therefore be held that by allowing the inclusion in the contract specification for tender for a public works contract of a clause stipulating that the asbestos cement pressure pipes must be certified as complying with Irish Standard 188:1975 in accordance with the Irish Standard Mark Licensing Scheme of the Institute for Industrial Research and Standards, Ireland has failed to fulfil its obligations under Article 30 of the EEC Treaty .
The rejection of the tender providing for the use of the Spanish-made pipes | 32
The principle of effective judicial protection of the rights which individuals derive from EU law comprises various elements; in particular, the rights of the defence, the principle of equality of arms, the right of access to a tribunal and the right to be advised, defended and represented (judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 48). |
34. The status of Union citizenship enables nationals of the Member States who find themselves in the same situation to enjoy within the scope of the Treaty the same treatment in law, subject to such exceptions as are expressly provided for (see, among others, Case C-224/98 D’Hoop [2002] ECR I-6191, paragraph 28). | 28 Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy within the scope ratione materiae of the Treaty the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 31). | 62
In the third place, and as the Advocate General has explained in points 37 and 38 of his Opinion, it should be borne in mind that Article 18 TFEU is to apply independently only to situations governed by EU law in regard to which the Treaty lays down no specific prohibition of discrimination (see, inter alia, to that effect, judgments of 21 June 1974, Reyners, 2/74, EU:C:1974:68, paragraphs 15 and 16; of 30 May 1989, Commission v Greece, 305/87, EU:C:1989:218, paragraphs 12 and 13; and of 18 December 2014, Generali-Providencia Biztosító, C‑470/13, EU:C:2014:2469, paragraph 31). |
34. According to settled case-law, reliance by a national authority on the concept of public policy presupposes the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to a fundamental interest of society ( Rutili , paragraph 27; Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri [2004] ECR I‑5257, paragraph 66; and Commission v Germany , paragraph 35). | 27 NEVERTHELESS, THE CONCEPT OF PUBLIC POLICY MUST, IN THE COMMUNITY CONTEXT AND WHERE, IN PARTICULAR, IT IS USED AS A JUSTIFICATION FOR DEROGATING FROM THE FUNDAMENTAL PRINCIPLES OF EQUALITY OF TREATMENT AND FREEDOM OF MOVEMENT FOR WORKERS, BE INTERPRETED STRICTLY, SO THAT ITS SCOPE CANNOT BE DETERMINED UNILATERALLY BY EACH MEMBER STATE WITHOUT BEING SUBJECT TO CONTROL BY THE INSTITUTIONS OF THE COMMUNITY . | 34. According to that case-law, the Member States may confer on the universal postal service provider, as an undertaking entrusted to operate services of general economic interest, exclusive rights likely to restrict competition or even exclude all competition when that is necessary in order to allow it to perform its task of general interest and in particular to have the benefit of economically acceptable conditions (Case C-320/91 Corbeau [1993] ECR I-2533, paragraphs 14 to 16). |
13. As is apparent from Article 127(1) of the Court’s Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, an argument which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application must be considered admissible (see, to that effect, judgments in Italy v Commission , C‑66/02, EU:C:2005:768, paragraphs 85 and 86, and Naipes Heraclio Fournier v OHIM , C‑311/05 P, EU:C:2007:572, paragraphs 58 and 59). | 58. À cet égard, il convient de rappeler que, conformément aux articles 42, paragraphe 2, et 118 du règlement de procédure, la production de moyens nouveaux en cours d’instance est interdite, à moins que ces moyens ne se fondent sur des éléments de droit et de fait qui se sont révélés pendant la procédure. | 18 The Court first observes that, in the current state of Community law, social policy is a matter for the Member States (see Case C-229/89 Commission v Belgium [1991] ECR I-2205, paragraph 22). Consequently, it is for the Member States to choose the measures capable of achieving their social policy aim. In exercising that competence, the Member States have a broad margin of discretion (see Megner and Scheffel, paragraph 29). |
37. Whilst such a restriction may be justified by the overriding public-interest requirement of protecting fair competition or that of protecting consumers (see, inter alia, to that effect, Budějovický Budvar EU:C:2003:618, paragraph 109), a given set of national rules, in order to be compatible with EU law, must be applied in a non-discriminatory manner, be suitable for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain that objective (Case C‑500/06 Corporación Dermoestética EU:C:2008:421, paragraph 35 and the case-law cited). | 35. However, according to the case‑law of the Court, such measures may be justified if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective (see Case C‑19/92 Kraus [1993] ECR I‑1663, paragraph 32; Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 37; Case C‑424/97 Haim [2000] ECR I‑5123 paragraph 57; Case C‑108/96 Mac Quen and Others [2001] ECR I‑837, paragraph 26; and Case C‑243/01 Gambelli and Others [2003] ECR I‑13031, paragraphs 64 and 65). | 28. It is important to note in that regard that, as in the case of Article 27 of Regulation No 44/2001 and Article 21 of the Brussels Convention, the concept of ‘established jurisdiction’ in Article 19 of Regulation No 2201/2003 must be interpreted independently, by reference to the scheme and purpose of the act that contains it (see, to that effect, judgments in Shearson Lehman Hutton , C‑89/91, EU:C:1993:15, paragraph 13, and Cartier parfums-lunettes and Axa Corporate Solutions assurances , C‑1/13, EU:C:2014:109, paragraph 32). |
27. Furthermore, measures taken by a Member State, the aim or effect of which is to treat goods coming from other Member States less favourably and, in the absence of harmonisation of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and/or marketed, rules that lay down requirements to be met by such goods, even if those rules apply to all products alike, must be regarded as ‘measures having equivalent effect to quantitative restrictions on imports’ for the purposes of Article 34 TFEU (see, to that effect, Deutscher Apothekerverband , paragraph 67). | 67. Even if a measure is not intended to regulate trade in goods between Member States, the determining factor is its effect, actual or potential, on intra-Community trade. By virtue of that factor, in the absence of harmonisation of legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect prohibited by Article 28 EC, even if those rules apply to all products alike, unless their application can be justified by a public-interest objective taking precedence over the requirements of the free movement of goods (Case 120/78 Rewe-Zentral (Cassis de Dijon ) [1979] ECR 649, paragraphs 6, 14 and 15; Keck and Mithouard , paragraph 15, and Familiapress , paragraph 8). | 59. In addition, the limitation of the territorial scope of the authorisation, which obliges the service provider, under Article 136 of the Consolidated Law, to request authorisation in each of the provinces where it intends to operate (bearing in mind that Italy is divided into 103 provinces) further complicates the exercise of the freedom to provide services (see, to that effect, Case C-298/99 Commission v Italy [2002] ECR I-3129, paragraph 64). |
25. Finally, even though, as the governments which have submitted observations have correctly observed, the wording used in Article 3(2) of Directive 2004/38 is not sufficiently precise to enable an applicant for entry or residence to rely directly on that provision in order to invoke criteria which should in his view be applied when assessing his application, the fact remains that such an applicant is entitled to a judicial review of whether the national legislation and its application have remained within the limits of the discretion set by that directive (see, by analogy, Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 56; Case C-127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I-7405, paragraph 66; and Joined Cases C-165/09 to C-167/09 Stichting Natuur en Milieu and Others [2011] ECR I-4599, paragraphs 100 to 103). | 66. As regards the right of an individual to rely on a directive and of the national court to take it into consideration, it would be incompatible with the binding effect attributed to a directive by Article 249 EC to exclude, in principle, the possibility that the obligation which it imposes may be relied on by those concerned. In particular, where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the effectiveness of such an act would be weakened if individuals were prevented from relying on it before their national courts, and if the latter were prevented from taking it into consideration as an element of Community law in order to rule whether the national legislature, in exercising the choice open to it as to the form and methods for implementation, has kept within the limits of its discretion set by the directive (see Kraaijeveld and Others , paragraph 56). That also applies to ascertaining whether, failing transposition into national law of the relevant provision of the directive concerned, the national authority which has adopted the contested measure has kept within the limits of its discretion set by that provision. | 24. Where there is divergence between the various language versions of a Community text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case C-437/97 EKW and Wein & Co [2000] ECR I-1157, paragraph 42, and Case C-1/02 Borgmann [2004] ECR I-3219, paragraph 25). |
31. Consequently, the activity of a legal trainee cannot fall within the exception laid down in Article 39(4) EC since that exception does not cover posts which, whilst coming under the State or other bodies governed by public law, still do not involve any association with tasks belonging to the public service properly so called (see, inter alia, Case 149/79 Commission v Belgium [1980] ECR 3881, paragraph 11, and Case C‑47/02 Anker [2003] ECR I‑10447, paragraph 59). | 59. On the other hand, the Article 39(4) EC exception does not cover posts which, whilst coming under the State or other bodies governed by public law, still do not involve any association with tasks belonging to the public service properly so called ( Commission v Belgium , paragraph 11, and Commission v Greece , paragraph 2), nor, a fortiori , to employment by a private natural or legal person, whatever the duties of the employee ( Commission v Spain , cited above, paragraph 33, and Case C-283/99 Commission v Italy , cited above, paragraph 25). | 41. First, the principle of proportionality is a general principle of Community law that must be observed by the Community legislature and by the national legislatures and courts, in particular with regard to the common agricultural policy. That principle requires that measures adopted by Community institutions should not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see Case C‑534/06 Industria Lavorazione Carni Ovine [2008] ECR I‑4129, paragraph 25). |
83. As regards the obligation on the Member States to take, in genuine cooperation with the Commission, the measures necessary to ensure the application of the Community provisions relating to the establishment of potential own resources, the Court has held that that obligation, which was given more specific expression with regard to verification in Article 18 of Regulation No 1552/89, means in particular that where the Commission is largely dependent on information provided by the Member State concerned, that Member State is required to make supporting documents and other relevant documentation available to the Commission under reasonable conditions, to enable it to verify whether, and, as the case may be, to what extent the amounts concerned relate to the Communities’ own resources (Case C-10/00 Commission v Italy , paragraphs 89 to 91). | 89 In the light of that case-law, it should be observed that, in the circumstances of the present case, the implementation of the arrangements relating to imports destined for San Marino creates an obligation on the part of the Italian Republic to take, in sincere cooperation with the Commission, the measures needed to ensure the application of the Community provisions relating to establishment of possible own resources. | 15. In this connection, it should be borne in mind in particular that the letter of formal notice sent by the Commission to the Member State concerned and the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The reasoned opinion and the proceedings brought by the Commission must consequently be based on the same complaints as those raised in the letter of formal notice initiating the pre-litigation procedure (see, to this effect, Case C-457/07 Commission v Portugal [2009] ECR I-8091, paragraph 55, and Case C-535/07 Commission v Austria [2010] ECR I-9483, paragraph 41). |
37
For the purpose of this examination, two conditions are required to be met. In the first place, the service provider must have a relationship with both the insurer and the insured party (judgment in Taksatorringen, C‑8/01, EU:C:2003:621, paragraph 44). That relationship can be only indirect if the provider is a subcontractor of the broker or agent (see, to that effect, judgment in J.C.M. Beheer, C‑124/07, EU:C:2008:196, paragraph 29). In the second place, its activities must cover the essential aspects of the work of an insurance agent, such as the finding of prospective clients and their introduction to the insurer (see, to that effect, judgment in Arthur Andersen, C‑472/03, EU:C:2005:135, paragraphs 33 and 36). | 44. As to whether such services are " related services performed by insurance brokers and insurance agents" , it must be stated, as the Advocate General has set out in point 86 of his Opinion, that this expression refers only to services provided by professionals who have a relationship with both the insurer and the insured party, it being stressed that the broker is no more than an intermediary. | 58 However, in proceedings for a preliminary ruling, it is not for this Court but for the national court to determine which obligations are imposed by an earlier agreement on the Member State concerned and to ascertain their ambit so as to be able to determine the extent to which they thwart application of the provisions of Community law in question (see Case C-324/93 Evans Medical and Macfarlan Smith, cited above, paragraph 29). |
64
The situations referred to in the preceding paragraph have the common feature that, although they are governed by legislation which falls, a priori, within the competence of the Member States, namely legislation on the right of entry and residence of third-country nationals outside the scope of provisions of EU secondary legislation, which provide for the grant of such a right under certain conditions, those situations nonetheless have an intrinsic connection with the freedom of movement and residence of a Union citizen, which precludes the right of entry and residence from being refused to those nationals in the Member State of residence of that citizen, in order to avoid interference with that freedom (judgments of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 75, and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 30 and the case-law cited). | 75
The above situations have the common feature that, although they are governed by legislation which falls, a priori, within the competence of the Member States, namely legislation on the right of entry and residence of third-country nationals outside the scope of provisions of secondary legislation which provide for the grant of such a right under certain conditions, they nonetheless have an intrinsic connection with the freedom of movement and residence of a Union citizen, which prevents the right of entry and residence being refused to those nationals in the Member State of residence of that citizen, in order not to interfere with that freedom (see, to this effect, judgments of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 72, and of 8 May 2013, Ymeraga and Others, C‑87/12, EU:C:2013:291, paragraph 37). | 61. By contrast, where VAT is included in the price of goods or services, the systematic rounding down at a lower level than the periodic VAT return would result in the taxable person collecting from his customer the amount of the VAT actually due whilst systematically paying to the State a lower amount, retaining the difference for his own benefit. That result would be contrary to the principle that VAT is collected by taxable persons at each stage of the production or distribution process on behalf of the tax authorities, to which those taxable persons are required to pay it (see Case C‑291/03 MyTravel [2005] ECR I‑8477, paragraph 30). |
40. With regard, first of all, to the argument that Article 56 EC is not intended to apply to activities involving the investment of OPF assets on the ground that those activities are not economic in nature, it must be borne in mind that the Court has already held that occupational pension funds operating in accordance with the principle of capitalisation engage, notwithstanding their social objective and the compulsory affiliation to the second pillar for the retirement scheme to which they belong, in economic activity (see Case C‑67/96 Albany [1999] ECR I‑5751, paragraphs 81 to 87). In accordance with Articles 2, 3, 27 and 29 of the Law on pension funds, the scheme in question is based on the capitalisation principle and the assets of the OPFs are managed and invested by PTEs, which operate for a fee, in the form of a joint-stock company. The evidence, relied on by the Republic of Poland, concerning the prudential supervision of the OPFs and PTEs by the public authorities and the guarantee made by the State to cover any deficits in the OPFs is not such as to call into question the economic nature of the activities in question. | 82 Accordingly, by contrast with the benefits provided by organisations charged with the management of compulsory social security schemes of the kind referred to in Poucet and Pistre, cited above, the amount of the benefits provided by the Fund depends on the financial results of the investments made by it, in respect of which it is subject, like an insurance company, to supervision by the Insurance Board. | 29. That complexity is due to the fact that progesterone, in addition to therapeutic treatment, is liable to be used unlawfully as a growth stimulate and, currently, there are no reliable methods of analysis permitting distinction between endogenous progesterone, produced naturally by the animals, and exogenous progesterone, resulting from the administration of medicinal products, and therefore monitoring of the abusive use of that substance. Furthermore, the Commission, when it adopted Regulation No 1873/2003, was faced with a situation of ongoing scientific uncertainty with regard to the possible harmful effects of progesterone, characterised by divergent scientific opinions adopted by the CVMP, on the one hand, and by the SCVPH and other international scientific bodies, on the other (see, to that effect, Commission v CEVA and Pfizer , paragraph 82). |
62 In reply to that argument, it is sufficient to point out that, in accordance with the 11th recital in the preamble to the basic regulation, Article 8(1)(a) requires the owner of a new vessel either to scrap a tonnage of carrying capacity equivalent to the new vessel without receiving a scrapping premium or, if he does not scrap a vessel, to pay a special contribution equal to the scrapping premium for a tonnage equal to that of the new vessel. In its judgment in Joined Cases C-13/92, C-14/92, C-15/92 and C-16/92 Driessen and Others v Minister van Verkeer [1993] ECR I-4751, paragraph 36, the Court held that that rule was an appropriate way of limiting new investments in a sector characterized by structural overcapacity. | 36 As regards the plaintiffs' allegation that the contested provisions are disproportionate, it must first be observed that those provisions constitute an appropriate way of limiting new investments in a sector characterized by structural overcapacity, an objective which, as is apparent from the third recital in its preamble, is pursued by the regulation. | 31
A preliminary point to note is that, in so far as the Brussels I Regulation replaces, in the relations between Member States, the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by the successive accession conventions for the new Member States, the interpretation provided by the Court in respect of the provisions of that convention is also valid for those of the regulation whenever the provisions of those instruments may be regarded as equivalent, which is the case as regards Article 23 of the Brussels I Regulation, which succeeded the first paragraph of Article 17 of the convention (see, to that effect, judgment of 7 July 2016, Hőszig, C‑222/15, EU:C:2016:525, paragraphs 30 and 31 and the case-law cited). |
39. It is apparent from both the wording of Clause 2.6 and its context that that provision is intended to avoid the loss of or reduction in rights derived from an employment relationship, acquired or being acquired, to which the worker is entitled when he starts parental leave, and to ensure that, at the end of that leave, with regard to those rights, he will find himself in the same situation as that in which he was before the leave (see, to that effect, Case C-537/07 Gómez-Limón Sánchez-Camacho [2009] ECR I-0000, paragraph 39). | 39. It is apparent both from the wording of Clause 2(6) of the framework agreement on parental leave and its context that that provision is intended to avoid the loss of entitlements derived from an employment relationship, acquired or being acquired, which the employee already has when he starts parental leave, and to ensure that, at the end of that leave, with regard to those entitlements, he will find himself in the same situation as that in which he was before that leave. Those entitlements derived from an employment relationship are those which the employee had at the date when the leave commenced. | 45. Thus, the Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law ( Micheletti and Others , paragraph 10; Mesbah , paragraph 29; Case C‑192/99 Kaur [2001] ECR I‑1237, paragraph 19; and Zhu and Chen , paragraph 37). |
28. Il importe de rappeler que, dans le cadre d’un recours en manquement, introduit en vertu de l’article 258 TFUE par la Commission et dont celle-ci apprécie seule l’opportunité, il appartient à la Cour de constater si le manquement reproché existe ou non, même si l’État concerné ne conteste pas ce manquement (voir, notamment, arrêts du 22 juin 1993, Commission/Danemark, C‑243/89, Rec. p. I‑3353, point 30; du 15 janvier 2002, Commission/Italie, C‑439/99, Rec. p. I‑305, point 20, et du 8 septembre 2005, Commission/Italie, C‑462/04, point 7). | 30 In an action for failure to fulfil obligations, brought by the Commission under Article 169 of the Treaty, whose expediency only the Commission decides, it is for the Court to determine whether or not the alleged breach of obligations exists, even if the State concerned no longer denies the breach and recognizes that any individuals who have suffered damage because of it have a right to compensation. Otherwise, by admitting their breach of obligations and accepting any ensuing liability, Member States would be at liberty at any time during Article 169 proceedings before the Court to have them brought to an end without any judicial determination of the breach of obligations and of the basis of their liability. | 46. It must also be recalled that the Court has already held that jurisdiction to hear disputes concerning the existence of a contractual obligation must be determined in accordance with Article 5(1) of the Brussels Convention and that that provision is therefore applicable even when the existence of the contract on which the claim is based is in dispute between the parties (see the judgment in Case 38/81 Effer v Kanter [1982] ECR 825, paragraphs 7 and 8). |
31. Nevertheless, in accordance with settled case-law of the Court, in certain circumstances, several formally distinct services, which could be supplied separately and thus give rise in turn to taxation or exemption, must be considered to be a single transaction when they are not independent. There is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split. Such is also the case where one or several services constitute the principal service, and where the other service or services constitute one or several ancillary services which share the tax treatment of the principal service (judgment in BGŻ Leasing , C‑224/11, EU:C:2013:15, paragraph 30). In particular, a supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal service supplied (judgment in Field Fisher Waterhouse , C‑392/11, EU:C:2012:597, paragraph 17 and the case-law cited). | 30. Nevertheless, it is clear from the case-l aw of the Court that, in certain circumstances, several formally distinct services, which could be supplied separately and thus give rise in turn to taxation or exemption, must be considered to be a single transaction when they are not independent (see Case C-425/06 Part Service [2008] ECR I-897, paragraph 51, Case C-276/09 Everything Everywhere [2010] ECR I-12359, paragraph 23). There is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (Case C-41/04 Levob Verzekeringen and OV Bank [2005] ECR I-9433 paragraph 22, and Case C-111/05 Aktiebolaget NN [2007] ECR I-2697, paragraph 23). Such is the case where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service (Case C-349/96 CPP [1999] ECR I-973, paragraph 30, and Part Service , paragraph 52). | 65. It must be observed in that regard that the obligation to state reasons constitutes an essential procedural requirement which must be distinguished from the question of the merits of those reasons, which concern the substantive legality of the contested measure. The Court has consistently held that the statement of reasons required by Article 253 EC must be adapted to the nature of the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to make the persons concerned aware of the reasons for the measure and the Court to exercise its supervisory jurisdiction (see, inter alia, Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19, Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraph 15, Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 86 and Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63). |
58. As regards the purpose of the special scheme, the Court has already pointed out on numerous occasions that the services provided by travel agents and tour operators in general consist of multiple services, in particular transport and accommodation, supplied both inside and outside the territory of the Member State in which the undertaking has established its business or has a fixed establishment. The application of the normal rules on place of taxation, taxable amount and deduction of input tax would, by reason of the multiplicity of services and the places in which they are provided, entail practical difficulties for those undertakings of such a nature as to obstruct their operations. It was in order to adapt the applicable rules to the specific nature of that activity that the European Union legislature set up a special VAT scheme in Article 26(2) to (4) of the Sixth Directive (see Case C‑163/91 Van Ginkel [1992] ECR I‑5723, paragraphs 13 to 15; Madgett and Baldwin , paragraph 18; Case C‑149/01 First Choice Holidays [2003] ECR I‑6289, paragraphs 23 to 25; Case C‑200/04 ISt [2005] ECR I‑8691, paragraph 21; and Case C‑31/10 Minerva Kulturreisen [2010] ECR I‑12889, paragraphs 17 and 18). | 18 It must be borne in mind at the outset that the services provided by travel agents and tour operators most frequently consist of multiple services, in particular transport and accommodation, supplied either within or outside the territory of the Member State in which the undertaking has established its business or has a fixed establishment. The application of the normal rules on place of taxation, taxable amount and deduction of input tax would, by reason of the multiplicity of services and the places in which they are provided, entail practical difficulties for those undertakings of such a nature as to obstruct their operations. In order to adapt the applicable rules to the specific nature of such operations, the Community legislature set up a special VAT scheme in Article 26(2), (3) and (4) of the Sixth Directive (see Case C-163/91 Van Ginkel v Inspecteur der Omzetbelasting te Utrecht [1992] ECR I-5723, paragraphs 13 to 15). | 66. It is for the Court, in each case, in the light of the circumstances of the case before it and the degree of persuasion and deterrence which appears to it to be required, to determine the appropriate financial penalties, such as the imposition of a lump sum, in particular with a view to preventing similar infringements of European Union law from recurring (see Case C‑121/07 Commission v France , paragraph 59). |
44. According to the settled case-law of the Court, the existence of a likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see, inter alia, Case C-251/ 95 SABEL [1997] ECR I‑6191, paragraph 22; Case C‑342/97 Lloyd Schuhfabrik Meyer [1999] ECR I‑3819, paragraph 18; Case C‑120/04 Medion [2005] ECR I‑8551, paragraph 27; Case C‑334/05 P OHIM v Shaker [2007] ECR I‑4529, paragraph 34; and Case C‑498/07 P Aceites del Sur-Coosur v Koipe [2009] ECR I‑0000, paragraph 46). | 27. The existence of a likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see Case C-251/95 SABEL [1997] ECR I-6191, paragraph 22; Lloyd Schuhfabrik Meyer , cited above, paragraph 18, and Case C-425/98 Marca Mode [2000] ECR I-4861, paragraph 40, in addition to, in relation to Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), drafted in terms substantially identical to those of Article 5(1)(b) of the directive, the order of 28 April 2004 in Case C-3/03 P Matratzen Concord v OHIM [2004] ECR I-3657, paragraph 28). | 79. The Court has stated that where, under the legislation of the competent Member State, hospital treatment provided under the national health service is to be free of charge, and where the legislation of the Member State in which a patient registered with that service was or should have been authorised to receive hospital treatment at the expense of that service does not provide for the reimbursement in full of the cost of that treatment, the competent institution must reimburse that patient the difference (if any) between the cost, objectively quantified, of equivalent treatment in a hospital covered by the service in question up to the total amount invoiced for the treatment provided in the host Member State and the amount which the institution of the latter Member State is required to reimburse under Article 22(1)(c)(i) of Regulation No 1408/71 on behalf of the competent institution pursuant to the legislation of that Member State ( Watts , paragraph 143). |
25. Further, it should also be borne in mind that according to settled case-law the exemptions provided for by Article 13 of the Sixth Directive have their own independent meaning in Community law and that they must therefore be given a Community definition (see Case C-358/97 Commission v Ireland [2000] ECR I-6301, paragraph 51). | 51 It should be observed at the outset that according to settled case-law the exemptions provided for in Article 13 of the Sixth Directive have their own independent meaning in Community law (see Case 348/87 Stichting Uitvoering Financiële Acties v Staatssecretaris van Financiën [1989] ECR 1737, paragraph 11, Case C-453/93 Bulthuis-Griffioen v Inspecteur der Omzetbelasting [1995] ECR I-2341, paragraph 18, and Case C-2/95 SDC v Skatteministeriet [1997] ECR I-3017, paragraph 21). They must therefore be given a Community definition. | 65
In that regard, it should be noted, first of all, that, according to the Court’s settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the wording of a provision of EU 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 European Union, which must take into account the context of the provision and the objective pursued by the legislation in question (see judgment of 24 May 2016, Dworzecki, C‑108/16 PPU, EU:C:2016:346, paragraph 28 and the case-law cited). |
26. A reference by a national court can be rejected only if it appears that the procedure laid down by Article 177 of the Treaty has been misused and a ruling from the Court elicited by means of a contrived dispute, or it is obvious that Community law cannot apply, either directly or indirectly, to the circumstances of the case referred to the Court (see, to this effect, Dzodzi and Gmurzynska-Bscher , cited above, paragraphs 40 and 23). | 23 It would be otherwise only in cases where either it appears that the procedure of Article 177 of the Treaty has been misused and been resorted to, in fact, in order to elicit a ruling from the Court by means of a spurious dispute or it is obvious that the provisions of Community law submitted for the interpretation of the Court cannot apply . | 40. The Court has stated that, when a tax on registration is paid in a Member State, the amount of that tax is incorporated in the value of the vehicle. Thus, if a vehicle registered in the Member State in question is subsequently sold as a second-hand vehicle in that Member State, its market value, including the residual registration tax, will be equal to a percentage of its original value, determined by depreciation ( Nádasdi and Németh , paragraph 54). Therefore, to ensure the neutrality of the tax, the value of the imported second-hand vehicle taken as the basis of taxation must reflect the value of a similar vehicle already registered on national territory ( Weigel , paragraph 71, and Case C‑74/06 Commission v Greece [2007] ECR I‑7585, paragraph 28). |
72. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice ( General Motors v Commission , paragraph 52; Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 83; and judgment of 31 January 2008 in Case C‑103/07 P Angelidis v Parliament , paragraph 46). | 46. La Cour n’est donc pas compétente pour constater les faits ni, en principe, pour examiner les preuves que le Tribunal a retenues à l’appui de ces faits. En effet, dès lors que ces preuves ont été obtenues régulièrement, que les principes généraux du droit ainsi que les règles de procédure applicables en matière de charge et d’administration de la preuve ont été respectés, il appartient au seul Tribunal d’apprécier la valeur qu’il convient d’attribuer aux éléments qui lui ont été soumis (voir, notamment, ordonnance du 17 septembre 1996, San Marco/Commission, C‑19/95 P, Rec. p. I-4435, point 40, et arrêt General Motors/Commission, précité, point 52). | 18 It must be borne in mind that for the purposes of interpreting Article 3(f), the second paragraph of Article 5 and Article 85 of the Treaty, Article 85 taken on its own is concerned only with the conduct of undertakings and not with legislative or regulatory measures of the Member States. However, according to settled case-law, Article 85, read in conjunction with Article 5 of the Treaty, requires the Member States to refrain from introducing or maintaining in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings. Such is the case, according to that case-law, if a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects, or deprives its own legislation of its official character by delegating to private traders responsibility for taking decisions affecting the economic sphere (see in particular Case C-379/92 Peralta [1994] ECR I-3453, paragraph 21). |
41 The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 25 and 26, Case 113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke and Benteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council [1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988] ECR 2151, paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 9). | 25THUS , ALTHOUGH THE COMMISSION DECISION WAS ADOPTED IN THE FORM OF A DECISION ADDRESSED TO THE MEMBER STATES AND THROUGH THEM TO THE INTERVENTION AGENCIES , IT HAS DIRECTLY DETERMINED THE FATE , BE IT FAVOURABLE OR UNFAVOURABLE , OF EACH OF THE TENDERS SUBMITTED IN ANSWER TO THE NOTICES OF INVITATIONS TO TENDER OF 13 JANUARY 1978 . | 24. En outre, dans la mesure où le Royaume d’Espagne fait valoir que le retard apporté à la transposition de la directive 2005/60 serait dû au fait que la législature arrivait à son terme et à la tenue d’élections législatives au cours de l’année 2008, il convient de rappeler que, selon une jurisprudence constante, un État membre ne saurait exciper de dispositions, de pratiques ou de situations de son ordre juridique interne pour justifier l’inobservation des obligations et délais prescrits par une directive (voir, notamment, arrêt du 5 juin 1997, Commission/Espagne, C-107/96, Rec. p. I-3193, point 10, ainsi que, en ce qui concerne spécifiquement la tenue d’élections législatives en Espagne au cours du mois de mars 2008, arrêts du 20 novembre 2008, Commission/Espagne, C‑94/08, points 18 et 21; du 23 avril 2009, Commission/Espagne, C‑321/08, points 8 et 9, et du 14 mai 2009, Commission/Espagne, C‑266/08, points 10 et 11). |
20. It should be pointed out, at the outset, that Article 1 of Regulation No 615/98 provides that, for the application of the second subparagraph of Article 13(9) of Regulation No 805/68, the payment of export refunds for live bovine animals falling within heading 0102 of the Combined Nomenclature is to be subject, inter alia, to compliance, during the transport of the animals to the first place of unloading in the third country of final destination, with Directive 91/628 (see Joined Cases C‑37/06 and C‑58/06 Viamex Agrar Handel and ZVK [2008] ECR I‑0000, paragraph 17). | 17. Article 1 of Regulation No 615/98 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport provides that, for the application of the second subparagraph of Article 13(9) of Regulation No 805/68, the payment of export refunds for live bovine animals falling within heading 0102 of the Combined Nomenclature is to be subject to compliance with, inter alia, Directive 91/628. | 44
Finally, the VAT exemptions are intended to enable a comparable collection of the European Union’s own resources in all the Member States. It follows that, even if Article 135(1)(j) of the VAT Directive, read in conjunction with Article 12 thereof (to which it refers), refers to the conditions for exemption fixed by the Member States, the exemptions laid down by that provision correspond to autonomous concepts of EU law so that the basis for assessing VAT may be determined in a uniform manner and according to common rules (see, to that effect, judgment of 4 October 2001, Goed Wonen, C‑326/99, EU:C:2001:506, paragraph 47, and the case-law cited). |
It follows from the above that in order to be characterised as transactions concerning transfers for the purposes of Article 13B(d)(3)
of the Sixth Directive, the services at issue must, viewed broadly, form a distinct whole, fulfilling in effect the specific,
essential functions of a transfer and, therefore, have the effect of transferring funds and entail changes in the legal and
financial situation. In this regard, a service which is exempt under the Sixth Directive must be distinguished from a mere
physical or technical supply. Accordingly, the national court must examine in particular the extent of the responsibility
of the supplier of services vis-à-vis the banks, in particular the question whether that responsibility is restricted to technical
aspects or whether it extends to the specific, essential aspects of the transactions (see, to that effect, judgments of 5 June
1997 in SDC, C‑2/95, EU:C:1997:278, paragraph 66, and of 28 July 2011 in Nordea Pankki Suomi, C‑350/10, EU:C:2011:532, paragraph 24). | 66 In order to be characterized as exempt transactions for the purposes of points 3 and 5 of Article 13B, the services provided by a data-handling centre must, viewed broadly, form a distinct whole, fulfilling in effect the specific, essential functions of a service described in those two points. For `a transaction concerning transfers', the services provided must therefore have the effect of transferring funds and entail changes in the legal and financial situation. A service exempt under the Directive must be distinguished from a mere physical or technical supply, such as making a data-handling system available to a bank. In this regard, the national court must examine in particular the extent of the data-handling centre's responsibility vis-à-vis the banks, in particular the question whether its responsibility is restricted to technical aspects or whether it extends to the specific, essential aspects of the transactions. | 12 The definition in the second paragraph of Article 119 provides that the concept of pay used in the abovementioned provisions includes all consideration which workers receive directly or indirectly from their employers in respect of their employment. The legal nature of such consideration is not important for the purposes of the application of Article 119 provided that it is granted in respect of employment (see Case 12/81 Garland v British Rail Engineering [1982] ECR 359, paragraph 10). |
17 Consequently, the aim of the directives is to avoid both the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed by public law may choose to be guided by considerations other than economic ones (see, to that effect, Case C-44/96 Mannesmann Anlagenbau Austria and Others v Strohal Rotationsdruck [1998] ECR I-73, paragraph 33, and BFI Holding, cited above, paragraphs 42 and 43). | 33 The fact that no such distinction is made is explained by the aim of Directive 93/37 to avoid the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities. | 40. S’agissant du premier critère, il importe de relever que les fonctionnaires qui bénéficient d’un régime de pension doivent être considérés comme constituant une catégorie particulière de travailleurs. En effet, ceux-ci ne se distinguent des travailleurs groupés dans une entreprise ou un groupement d’entreprises, dans une branche économique ou un secteur professionnel ou interprofessionnel qu’en raison des caractéristiques propres qui régissent leur relation d’emploi avec l’État, avec d’autres collectivités ou employeurs publics (arrêts précités Griesmar, point 31, et Niemi, point 48). |
37. The words ‘transactions … in … securities’ within the meaning of that provision refer, therefore, to transactions which are liable to create, alter or extinguish parties’ rights and obligations in respect of securities (see, in particular, Case C 235/00 CSC Financial Services [2001] ECR I-10237, paragraph 33, and DTZ Zadelhoff , paragraph 23). | 33 It follows from the foregoing that the words transactions in securities refer to transactions liable to create, alter or extinguish parties' rights and obligations in respect of securities.
Interpretation of the words negotiation in securities
Observations submitted to the Court | 33. Lastly, the Grand Duchy of Luxembourg acknowledges that, under Luxembourg law, there is no maximum duration, for the purposes of Clause 5(1)(b) of the Framework Agreement, in respect of successive fixed-term employment contracts concluded with ‘occasional workers in the entertainment arts’ within the meaning of Article 4 of the amended Law of 30 July 1999. Nor is there any limit to the number of times such contracts may be renewed, for the purposes of Clause 5(1)(c) of the Framework Agreement. On the other hand, according to the Grand Duchy of Luxembourg, which refers to the judgment in Márquez Samohano (C‑190/13, EU:C:2014:146, paragraph 45), the situation of those workers is characterised by the existence of ‘objective reasons’ within the meaning of Clause 5(1)(a) of the Framework Agreement and the case-law of the Court. In particular, those workers participate in individual projects which are limited in time, and enjoy a measure of flexibility and social benefits owing to the fact that it is possible for an employer to renew fixed-term contracts with the same workers. According to the Grand Duchy of Luxembourg, the Commission acknowledges, moreover, that working on the basis of individual projects is an objective reason capable of justifying the use of successive fixed-term contracts. In that regard, the Grand Duchy of Luxembourg recalls that, in its judgment in Kücük (C‑586/10, EU:C:2012:39, paragraph 56), the Court held that, where an objective reason is to be found in the specific nature of the tasks to be carried out, the mere fact that an employer may have to hire workers under recurring fixed-term contracts does not mean that there is no objective reason under Clause 5(1)(a) of the Framework Agreement or that there is abuse within the meaning of that clause.
Findings of the Court |
24. With regard to the requirement that there be a legal transfer, there is settled case-law to the effect that the scope of Article 1(1) of Directive 2001/23 cannot be appraised solely on the basis of a textual interpretation (see, with regard to Article 1(1) of Directive 77/187, Case 135/83 Abels [1985] ECR 469, paragraphs 11 to 13, and Case C-29/91 Redmond Stich ting [1992] ECR I-3189, paragraph 10). On account of the differences between the language versions of Directive 2001/23 and the divergences between the laws of the Member States with regard to the concept of legal transfer, the Court has given that concept a sufficiently flexible interpretation in keeping with the objective of Directive 2001/23, which is to safeguard employees in the event of a transfer of their undertaking ( Redmond Stichting , paragraph 11, and Joined Cases C-171/94 and C-172/94 Merckx and Neuhuys [1996] ECR I-1253, paragraph 28). | 10 In its judgment in Case 135/83 Abels v Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische Industrie [1985] ECR 469, paragraphs 11, 12 and 13, the Court held that the scope of the provision at issue could not be appraised solely on the basis of a textual interpretation on account of the differences between the language versions of the provision and the divergences between the laws of the Member States with regard to the concept of legal transfer. | 53. First, it must be stated that the General Court was correct to hold that it is entitled to examine of its own motion whether the time-limit for bringing proceedings has been observed, that being a matter of public policy (see, inter alia, Case 79/70 Müllers v CES [1971] ECR 689, paragraph 6, and Transportes Evaristo Molina v Commission , paragraph 33). |
50
In addition, since the Court may consider of its own motion whether the conditions laid down in Article 258 TFEU for an action for failure to fulfil obligations to be brought are satisfied (see judgments of 15 January 2002, Commission v Italy, C‑439/99, EU:C:2002:14, paragraph 8, and of 22 September 2016, Commission v Czech Republic, C‑525/14, EU:C:2016:714, paragraph 14), it must be ascertained whether, by its first complaint, the Commission is entitled to declare that the Republic of Bulgaria failed to fulfil its obligations as from 2007. | 8 It should be noted at the outset that the Court may consider of its own motion whether the conditions laid down in Article 226 EC for an action for failure to fulfil obligations to be brought are satisfied (Case C-362/90 Commission v Italy [1992] ECR I-2353, paragraph 8). | 58. In the light of those risks to public health and to the financial balance of social security systems, the Member States may make persons entrusted with the retail supply of medicinal products subject to strict requirements, including as regards the way in which the products are marketed and the pursuit of profit. In particular, the Member States may restrict the retail sale of medicinal products, in principle, to pharmacists alone, because of the safeguards which pharmacists must provide and the information which they must be in a position to furnish to consumers (see, to this effect, Delattre , paragraph 56). |
105. It is common ground that the measures contained in Law No 218/90 were never notified to the Commission. Therefore, as regards the allegation that the measure provided for in Article 7(3) of that law was very similar to the tax reduction, it is sufficient to note that that measure was not examined by the Commission. In that context, the time which has elapsed since the adoption of that law, as pleaded by Unicredito, is irrelevant. In addition, even supposing that the two successive measures are, as suggested by the national tribunal, related, the one being a continuation and extension of the other, the fact that the Commission took no action regarding the first is immaterial, since the system at issue in the current proceedings, viewed independently of its predecessor, favours certain undertakings (see, to that effect, Case 57/86 Greece v Commission [1988] ECR 2855, paragraph 10). | 10 Finally, it is irrelevant that, by comparison with the previous export credit system, the repayment of interest is economically neutral in its effect on the competitiveness of Greek exports and that the Commission took no action regarding the previous system, since the present system, viewed independently from its predecessor, favours certain undertakings . It follows that the first submission must be rejected .
The second submission | 33. All that is necessary, when the Member State concerned exercises that power, is that it comply with Community law (see, in particular, Terhoeve , paragraph 34, and Case C-227/03 Van Pommeren-Bourgondiën [2005] ECR I-0000, paragraph 39). |
19 It is settled case-law ((see, inter alia, Case C-90/94 Haahr Petroleum [1997] ECR I-4085, paragraph 20, and Outokumpu, cited above, paragraph 20) that any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 9 and 12 of the Treaty. However, such a charge may not be so characterised if it forms part of a general system of internal dues applying systematically to categories of products according to objective criteria applied without regard to the origin of the products, in which case it falls within the scope of Article 95 of the Treaty. | 20 The Court has also consistently held (see, inter alia, Haahr Petroleum, paragraph 20) that any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 9, 12, 13 and 16 of the EC Treaty. However, such a charge may not be so characterised if it forms part of a general system of internal dues applying systematically to categories of products according to objective criteria applied without regard to the origin of the products, in which case it falls within the scope of Article 95 of the Treaty. | 117. In the first place, as to whether the measure is proportionate, 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 necessary in order to achieve the declared objective, and that this 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, judgments in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraph 31, and in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 50 and the case-law cited). |
32. On the other hand, national provisions which apply to shareholdings acquired solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking must be examined exclusively in light of the free movement of capital (judgments in Haribo Lakritzen Hans Riegel and Österreichische Salinen , EU:C:2011:61, paragraph 35; Accor , EU:C:2011:581, paragraph 32; Scheunemann , EU:C:2012:481, paragraph 23; and Test Claimants in the FII Group Litigation , EU:C:2012:707, paragraph 92). | 35. It has already been held that national legislation intended to apply only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities falls within the provisions of the Treaty on freedom of establishment (see Test Claimants in the FII Group Litigation , paragraph 37, and Case C‑81/09 Idrima Tipou [2010] ECR I‑0000, paragraph 47). On the other hand, national provisions which apply to shareholdings acquired solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking must be examined exclusively in light of the free movement of capital (see, to this effect, Test Claimants in the FII Group Litigation , paragraph 38, and Case C‑182/08 Glaxo Wellcome [2009] ECR I‑8591, paragraphs 40 and 45 to 52). | 38
Secondly, Article 5(1) of Directive 90/435 provides for exemption in the State of the subsidiary from withholding tax upon distribution of profits to its parent company, at least where the latter holds a minimum of 25% of the capital of the subsidiary (judgment of 3 April 2008, Banque Fédérative du Crédit Mutuel, C‑27/07, EU:C:2008:195, paragraph 26 and the case-law cited). |
34. As regards, more specifically, the concept of unlawful removal from customs supervision, referred to in Article 203(1) of the Customs Code, it should be borne in mind that, in accordance with the Court’s case-law, that concept must be interpreted as covering any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from carrying out the monitoring required by Article 37(1) of the Customs Code (Case C‑66/99 D. Wandel EU:C:2001:69, paragraph 47; Case C‑371/99 Liberexim EU:C:2002:433, paragraph 55; and Hamann International EU:C:2004:90, paragraph 31). | 47 However, if Articles 37(1), 50, 51(1) and 203(1) of the Customs Code are read together, it is apparent that the scope of Article 203(1) extends well beyond the acts referred to in Article 865 of the implementing regulation and that removal must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code. | 30. As the Court has observed, Member States are no longer entitled to attach conditions to the residence of a member of a Turkish worker’s family beyond the period of three years provided for in the first indent of the first paragraph of Article 7 of Decision No 1/80 during which the person concerned must, in principle, actually live with that worker; and that must a fortiori be the case for a migrant Turkish person who satisfies the conditions laid down in the second indent of the first paragraph of Article 7 of Decision No 1/80 (see, in particular, Case C‑329/97 Ergat [2000] ECR I-1487, paragraphs 37 to 39). |
36 Thus, the Court of Justice has jurisdiction to verify whether a breach of procedure adversely affecting the appellant's interests was committed before the Court of First Instance and must satisfy itself that the general principles of Community law and the Rules of Procedure applicable to the burden of proof and the taking of evidence have been complied with (see, in particular, Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 19). | 19 Thus, the Court of Justice has jurisdiction to verify whether a breach of procedure adversely affecting the appellant's interests was committed before the Court of First Instance and must satisfy itself that the general principles of Community law and the Rules of Procedure applicable to the burden of proof and the taking of evidence have been complied with (see, in particular, the order in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 40). | 57. Thus, the need to enforce intellectual-property rights, covered by, inter alia, Directive 2004/48, which — in accordance with Article 17(2) of the Charter — provides for a range of legal remedies aimed at ensuring a high level of protection for intellectual-property rights in the internal market, and the right to effective judicial protection guaranteed by Article 47 of the Charter, comprising various elements, including the right of access to a tribunal, must be taken into consideration (see, to that effect, judgment in Otis and Others , C‑199/11, EU:C:2012:684, paragraph 48). |
32 Likewise the reference in Article 13 to the rights which an injured person may rely on under a special liability system existing at the time when the Directive was notified must be construed, as is clear from the third clause of the 13th recital thereto, as referring to a specific scheme limited to a given sector of production (see judgments of today in Case C-52/00 Commission v France [2002] ECR I-0000, paragraphs 13 to 23, and Case C-154/00 Commission v Greece [2002] ECR I-0000, paragraphs 9 to 19). | 20 Although Articles 15(1)(a) and (b) and 16 of the Directive permit the Member States to depart from the rules laid down therein, the possibility of derogation applies only in regard to the matters exhaustively specified and it is narrowly defined. Moreover, it is subject inter alia to conditions as to assessment with a view to further harmonisation, to which the penultimate recital in the preamble expressly refers. An illustration of progressive harmonisation of that kind is afforded by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999 amending Council Directive 85/374/EEC (OJ 1999 L 141, p. 20), which by bringing agricultural products within the scope of the Directive removes the option afforded by Article 15(1)(a) thereof. | 17 It should be observed, first, that while Member States are still, in principle, free to determine the requirements of public policy and public security in the light of their national needs, those grounds must, in the Community context and, in particular, as derogations from the fundamental principle of free movement of capital, be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the Community institutions (see, to this effect, Case 36/75 Rutili v Minister for the Interior [1975] ECR 1219, paragraphs 26 and 27). Thus, public policy and public security may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see, to this effect, Rutili, cited above, paragraph 28, and Case C-348/96 Calfa [1999] ECR I-11, paragraph 21). Moreover, those derogations must not be misapplied so as, in fact, to serve purely economic ends (to this effect, see Rutili, paragraph 30). Further, any person affected by a restrictive measure based on such a derogation must have access to legal redress (see, to this effect, Case 222/86 Unectef v Heylens and Others [1987] ECR 4097, paragraphs 14 and 15). |
33. It follows that, in order to determine which of those two articles forms the basis on which a customs debt on importation is incurred, it is necessary, first of all, to consider whether in the factual situation in question there was an unlawful removal from customs supervision within the meaning of Article 203(1) of the Customs Code. Only if that question has been answered in the negative is it possible that Article 204 of the Customs Code may apply ( Hamann International EU:C:2004:90, paragraph 30). | 30. Accordingly, in order to determine which of the two articles causes a customs debt to be incurred, it is necessary first to consider whether in the factual situation in question there was removal from customs supervision for the purposes of Article 203(1) of the Customs Code. Only if that question has been answered in the negative is it possible that Article 204 of the Customs Code may apply. | 42. It should be noted that, in the context of the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it (see judgment in Le Rayon d’Or , C‑151/13, EU:C:2014:185, paragraph 25 and the case-law cited). |
59. First of all, it should be pointed out that in this complex technical and legal context, which in essence is in a state of flux, Directive 67/548 gives the Commission, in respect of the substance of the assessment, a broad discretion as to the scope of the measures to be taken to adapt the annexes to that directive to technical progress (Case C-425/08 Enviro Tech (Europe) [2009] ECR I-10035, paragraph 46). | 46. First of all, it must be pointed out that, in this complex technical and legal context, essentially in a state of flux, Directive 67/548 basically gives the Commission wide powers of assessment as to the scope of the measures to be taken to adapt the Annexes to that directive to technical progress. | 56. The exercise of that discretion is not, however, excluded from review by the Court. The Court has consistently held that in the context of such a review the courts of the European Union must verify whether the relevant procedural rules have been complied with, whether the facts admitted by the Commission have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers (Case 98/78 Racke [1979] ECR 69, paragraph 5, and Case C 16/90 Nölle [1991] ECR 1-5163, paragraph 12). |
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Thus, it is following a schematic interpretation of the relevant EU rules that the Court of Justice interpreted those rules as meaning that, as from 2000, the Commission is required to comply with a legal time limit when adopting a decision on financial corrections (see judgments of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraphs 56 to 82, and of 4 September 2014, Spain v Commission, C‑197/13 P, EU:C:2014:2157, paragraphs 56 to 82). | 77. Given that Article H(2) of Annex II to Regulation No 1164/94, as amended, in force since 1 January 2000, varies depending on the language versions of that regulation, it is necessary to determine the exact meaning by reference to the context of that provision, that is to say, in the present case, similar regulations relating the management of the European Union’s Funds. | 25 In Case 78/76 Steinike und Weinlig v German State [1977] ECR 595, at paragraphs 28 and 30, the Court held that any charge demanded at the time of or by reason of importation and imposed specifically on an imported product to the exclusion of a similar domestic product would have the same restrictive consequences on the free movement of goods as a customs duty and would thus be incompatible with Articles 9, 12 and 13 of the Treaty. If, however, the charge in question formed part of a general system of internal taxation applying systematically to domestic and imported products according to the same criteria, it might still infringe Article 95 if it affected domestic products and imported products differently in terms of rate, basis of assessment or method of levying. |
32. It should be noted that those provisions of Spanish law must be assessed in the light of Article 20 of the Charter, on condition that they come within the scope of Directive 2008/94. According to Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing EU law. Under Article 51(2), the Charter does not extend the field of application of EU law beyond the powers of the European Union and does not ‘establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers which are conferred on it (Case C‑400/10 PPU McB. EU:C:2010:582, paragraph 51; Case C‑256/11 Dereci and Others EU:C:2011:734, paragraph 71; and Case C‑206/13 Siragusa EU:C:2014:126, paragraph 20). | 51. First, according to Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing European Union law. Under Article 51(2), the Charter does not extend the field of application of European Union law beyond the powers of the Union, and it does not ‘establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it. | 18. As regards the third ground of inadmissibility, it is clear from settled case-law of the Court that the admissibility of actions for annulment brought by the Commission cannot be subject to the condition that an interest in its bringing proceedings must be demonstrated (see judgments in Commission v Council , 45/86, EU:C:1987:163, paragraph 3, and Commission v Council , C‑370/07, EU:C:2009:590, paragraph 16). |
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In that respect, the Court has had occasion to rule that the exception in the first paragraph of Article 51 TFEU does not extend to certain activities that are ancillary or preparatory to the exercise of official authority (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraph 22; of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 38; of 30 March 2006, Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU:C:2006:208, paragraph 47; of 29 November 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraph 38; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 36), or to certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves their discretionary and decision-making powers intact (see, to that effect, judgment of 21 June 1974, Reyners, 2/74, EU:C:1974:68, paragraphs 51 and 53), or to certain activities which do not involve the exercise of decision-making powers (see, to that effect, judgments of 13 July 1993, Thijssen, C‑42/92, EU:C:1993:304, paragraphs 21 and 22; of 29 November 2007, Commission v Austria, C‑393/05, EU:C:2007:722, paragraphs 36 and 42; of 29 Novembre 2007, Commission v Germany, C‑404/05, EU:C:2007:723, paragraphs 38 and 44; and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraphs 36 and 41), powers of enforcement (see, to that effect, inter alia, judgment of 29 October 1998, Commission v Spain, C‑114/97, EU:C:1998:519, paragraph 37) or powers of coercion (see, to that effect, judgment of 30 September 2003, Anker and Others, C‑47/02, EU:C:2003:516, paragraph 61, and of 22 October 2009, Commission v Portugal, C‑438/08, EU:C:2009:651, paragraph 44). | 51 PROFESSIONAL ACTIVITIES INVOLVING CONTACTS, EVEN REGULAR AND ORGANIC, WITH THE COURTS, INCLUDING EVEN COMPULSORY COOPERATION IN THEIR FUNCTIONING, DO NOT CONSTITUTE, AS SUCH, CONNEXION WITH THE EXERCISE OF OFFICIAL AUTHORITY . | 22. Article 31 of the Montreal Convention accordingly states that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (Case C‑70/09 Hengartner and Gasser [2010] ECR I‑7233, paragraph 36 and the case‑law cited, and Walz , paragraph 23 and the case‑law cited). |
58. In that regard, the Court has held that an operator who uses a customs agent, whether for direct or indirect representation, is in any event the debtor in respect of the customs debt as far as the customs authorities are concerned, and that he cannot avoid liability by relying on mistakes made by the agent (see Case C‑38/07 P Heuschen & Schrouff Oriëntal Foods Trading v Commission [2008] ECR I‑8599, paragraph 52). | 52. In that regard, the Court has stated that an operator who uses a customs agent, whether for direct or indirect representation, is in any event the debtor in respect of the customs debt as far as the customs authorities are concerned and that he cannot avoid liability by relying on mistakes made by that agent (see Common Market Fertilizers v Commission , paragraphs 186 and 187). | 85
Moreover, according to settled case-law of the Court of Justice, the General Court alone has jurisdiction to examine how in each particular case the Commission assessed the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the General Court took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 101 TFEU and Article 23 of Regulation No 1/2003 and, second, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised in support of the claim for reduction of the fine. The gravity of infringements of EU competition law must be determined by reference to numerous factors such as, in particular, the deterrent effect of fines, the specific circumstances and context of the case, including the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraphs 95, 99 and 100). |
8 The Court has consistently held that an application must be founded on the same grounds and submissions as the reasoned opinion ( see the judgment of 15 December 1982 in Case 211/81 Commission v Denmark (( 1982 )) ECR 4547, in particular paragraph 14 ). | 14 IT SHOULD BE REMEMBERED THAT THE SUBJECT-MATTER OF AN APPLICATION BROUGHT UNDER ARTICLE 169 IS DETERMINED BY THE COMMISSION ' S REASONED OPINION AND THAT THEREFORE THE TWO DOCUMENTS MUST BE FOUNDED ON THE SAME GROUNDS AND SUBMISSIONS .
| 29 According to the established case-law of the Court, although the last paragraph of Article 177 unreservedly requires national courts or tribunals against whose decisions there is no judicial remedy under national law to refer to the Court any question of interpretation raised before them, the authority of an interpretation provided by the Court under Article 177 may deprive that obligation of its purpose and thus empty it of its substance. This is especially so when the question raised is substantially the same as a question which has already been the subject of a preliminary ruling in a similar case (see, in particular, CILFIT and Lanificio di Gavardo, cited above, paragraph 13, and Joined Cases 28/62, 29/62 and 30/62 Da Costa en Schaake and Others v Nederlandse Belastingadministratie [1963] ECR 31). Such is also the case, a fortiori, when the question raised is substantially the same as a question which has already been the subject of a preliminary ruling in the same national proceedings. |
31. In the first place, it is apparent from Article 267 TFEU that, while it may be convenient, in certain circumstances, for the facts of the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court (see judgments in Creamery Milk Suppliers Association and Others , 36/80 and 71/80, EU:C:1981:62, paragraph 6; Meilicke , C‑83/91, EU:C:1992:332, paragraph 26; and JämO , C‑236/98, EU:C:2000:173, paragraph 31), national courts have the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, necessitating a decision on their part (see, inter alia, judgments in Mecanarte , C‑348/89, EU:C:1991:278, paragraph 44; Cartesio , C‑210/06, EU:C:2008:723, paragraph 88; Melki and Abdeli , C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 41; and A , C‑112/13, EU:C:2014:2195, paragraph 35). | 44 The effectiveness of the system established by Article 177 of the EEC Treaty requires that the national courts have the widest possible powers to refer questions to the Court of Justice if they consider that a case pending before them raises issues requiring an interpretation or an appraisal of the validity of provisions of Community law whose determination is necessary for the resolution of the dispute brought before them. | 67
In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category (judgments of 12 December 2002, Rodríguez Caballero, C‑442/00, EU:C:2002:752, paragraph 43; of 7 September 2006, Cordero Alonso, C‑81/05, EU:C:2006:529, paragraph 46; and of 21 June 2007, Jonkman and Others, C‑231/06 to C‑233/06, EU:C:2007:373, paragraph 39). That obligation persists regardless of whether or not the national court has been granted competence under national law to do so (judgment of 7 September 2006, Cordero Alonso, C‑81/05, EU:C:2006:529, paragraph 46). |
31. It follows from Article 17(1) of the Sixth Directive that the right to deduct arises at the time when the deductible tax becomes chargeable. In accordance with Article 10(2) of that directive, that is the case as soon as the goods are delivered or the services are performed (see Case C-400/98 Breitsohl [2000] ECR I-4321, paragraph 36). | 36 That interpretation is confirmed by the wording of Article 17(1) of the Sixth Directive, whereby the right to deduct arises at the time when the deductible tax becomes chargeable. In accordance with Article 10(2) of that directive, that is the case as soon as the goods are delivered to, or the services are performed for, the taxable person entitled to deduct. | 87. Since Article 30 EC contains an exception, which must be narrowly interpreted, to the rule of the free movement of goods within the Community, it is for the national authorities which invoke it to demonstrate in each case, taking account of the results of international scientific research, that their legislation is necessary in order effectively to protect the interests referred to in that provision, and, in particular, that the marketing of the products in question poses a genuine threat to public health (see, to that effect, Commission v Denmark , paragraph 46, and Case C‑24/00 Commission v France , paragraph 53 and case-law cited). |
31. Additionally, in so far as Regulation No 44/2001 replaces, in the relations between Member States, the Brussels Convention, the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of the regulation whenever the provisions of those instruments may be regarded as equivalent ( Zuid-Chemie , paragraph 18, and eDate Advertising and Others , paragraph 39). | 39. Second, in so far as the Regulation now replaces, in the relations between Member States, the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of the Regulation whenever the provisions of those Community instruments may be regarded as equivalent ( Zuid‑Chemie , paragraph 18). | 27. Although the Treaty does not define the terms ‘movements of capital’ and ‘payments’, it is settled case‑law that Directive 88/361, together with the nomenclature annexed to it, has an indicative value for the purposes of defining the notion of capital movements (see Commission v United Kingd om , paragraph 39, and Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraphs 20 and 21). |
38. Such an appraisal of the facts does not, save where the clear sense of the evidence submitted to it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. Under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court therefore has exclusive jurisdiction to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to appraise those facts (see, inter alia, Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42; Case C-238/06 P Develey v OHIM [2007] ECR I-9375, paragraph 97, and Case C‑431/07 P Bouygues and Bouygues Télécom v Commission [2009] ECR I-2665, paragraph 137). | 97. In accordance with Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal is limited to points of law. Therefore, the Court of First Instance has exclusive jurisdiction to make findings of fact, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence before it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (Case C‑104/00 P DKV v OHIM [2002] ECR I‑7561, paragraph 22, and Joined Cases C‑456/01 P and C‑457/01 P Henkel v OHIM [2004] ECR I‑5089, paragraph 41). | 96. Tel est a fortiori le cas depuis l’entrée en vigueur du traité FUE, dès lors que, ainsi qu’il a été rappelé au point 35 du présent arrêt, ce traité a supprimé, dans la procédure en manquement au titre de l’article 260, paragraphe 2, TFUE, l’étape consacrée à l’émission d’un avis motivé (voir arrêt Commission/République tchèque, C‑241/11, EU:C:2013:423, point 45). |
32. In appraising the scope of the expression ‘adversely affect the integrity of the site’ in its overall context, it should be made clear that, as the Advocate General has noted in point 43 of her Opinion, the provisions of Article 6 of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by the directive. Indeed, Article 6(2) and Article 6(3) are designed to ensure the same level of protection of natural habitats and habitats of species (see, to this effect, Case C‑404/09 Commission v Spain [2011] ECR I‑0000, paragraph 142), whilst Article 6(4) merely derogates from the second sentence of Article 6(3). | 142. Moreover, in order to establish a failure to fulfil obligations within the meaning of Article 6(2) of the Habitats Directive, the Commission does not have to prove a cause and effect relationship between a mining operation and significant disturbance to the capercaillie. Since Article 6(2) and (3) of the Habitats Directive are designed to ensure the same level of protection, it is sufficient for the Commission to establish the existence of a probability or risk that that operation might cause significant disturbances for that species (see, to that effect, Commission v France , paragraph 32, and Case C‑2/10 Azienda Agro-Zootecnica Franchini and Eolica di Altamura [2011] ECR I‑0000, paragraph 41). | 32. As regards Eurest’s argument that it dismissed Ms Chacón Navas without reference to the fact that she was absent from work on grounds of sickness because, at that time, her services were no longer necessary, it must be recalled that, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑326/00 IKA [2003] ECR I‑1703, paragraph 27, and Case C‑145/03 Keller [2005] ECR I‑2529, paragraph 33). |
19. According to settled case-law, the Court may refuse to rule on a question referred for a preliminary ruling by a national court where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see judgment in PreussenElektra , C‑379/98, EU:C:2001:160, paragraph 39 and the case-law cited). | 39 Nevertheless, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Bosman, paragraph 61; Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20; Case C-322/98 Kachelmann [2000] ECR I-7505, paragraph 17). | 41
In order to satisfy the requirements of Article 47 of the Charter when conducting a review in the exercise of its powers of unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited). |
13 It follows both from the title of the section in Regulation No 1408/71 of which Article 71 constitutes the sole article, and from the case-law of the Court, that the factor that determines whether Article 71 applies at all is the residence of the person concerned in a Member State other than that to whose legislation he was subject during his last employment (see the judgments in Case 76/76 Di Paolo v Office National de l' Emploi [1977] ECR 315, paragraphs 17 and 21, in Case 128/83 Caisse Primaire d' Assurance Maladie de Rouen v Guyot [1984] ECR 3507, paragraph 9, and in Case 236/87 Bergemann v Bundesanstalt fuer Arbeit [1988] ECR 5125). | 9 THE REPLY TO THE QUESTION SUBMITTED BY THE NATIONAL COURT MUST THEREFORE BE THAT ARTICLE 71 OF REGULATION NO 1408/71 DOES NOT APPLY TO AN UNEMPLOYED PERSON WHO , DURING HIS LAST EMPLOYMENT , WAS RESIDING IN THE MEMBER STATE IN WHICH HE WAS EMPLOYED .
| 54. Having regard to that objective of integration in the host Member State, the concept of establishment within the meaning of the Treaty provisions on freedom of establishment involves the actual pursuit of an economic activity through a fixed establishment in that State for an indefinite period (see Case C-221/89 Factortame and Others [1991] ECR I-3905, paragraph 20, and Case C-246/89 Commission v United Kingdom [1991] ECR I-4585, paragraph 21). Consequently, it presupposes actual establishment of the company concerned in the host Member State and the pursuit of genuine economic activity there. |
25
The objective of the margin scheme, as is clear from recital 51 of the VAT Directive, is to avoid double taxation and distortions of competition between taxable persons in the area of second-hand goods, works of art, collectors’ items or antiques (see, to that effect, judgment of 3 March 2011, Auto Nikolovi, C‑203/10, EU:C:2011:118, paragraph 47 and the case-law cited). | 47. As is apparent from recital 51 in the preamble to Directive 2006/112, the objective of the margin scheme is to avoid double taxation and distortions of competition between taxable persons in the area of second-hand goods (see, to that effect, Case C‑320/02 Stenholmen [2004] ECR I‑3509, paragraph 25; and Jyske Finans , paragraphs 37 and 41). | 36. Consequently, although it is open to the Member States, as has been pointed out in paragraph 32 of this judgment, to introduce an exception in respect of ephemeral recordings into their domestic law, an interpretation according to which Member States which, exercising that option afforded to them by European Union law, have introduced an exception of that kind, are free to determine, in an un‑harmonised manner, the limits thereof, inter alia as regards the facilities used to make those ephemeral recordings, would be contrary to the objective of that directive as set out in the preceding paragraph, inasmuch as the limits of that exception could vary from one Member State to another and would therefore give rise to potential inconsistencies (see, by analogy, concerning the concept of ‘fair compensation’ referred to in Article 5(2)(b) of Directive 2001/29, Case C‑467/08 Padawan [2010] ECR I‑10055, paragraphs 34 to 36). |
67. In the absence of any binding provision laying down criteria on the basis of which the powers of the Minister for Finance must be exercised, neither bodies governed by public law nor private operators are in a position to provide, with the required certainty, for the conduct of their affairs if the provision by bodies governed by public law of an economic activity will or will not be subject to VAT. That situation is therefore likely to jeopardise the principle of legal certainty (see, to that effect, Isle of Wight Council and Others , paragraphs 51 and 52). | 51. Thus, neither the local authorities nor the private operators will be in a position to provide, with the required certainty, for the conduct of their affairs if, on a given local market, the provision by the local authorities of off-street parking will or will not be subject to VAT. | 25. National legislation intended to apply only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities falls within the scope of Article 49 TFEU on freedom of establishment ( Test Claimants in the FII Group Litigation , paragraph 91 and the case-law cited). |
50. Quite apart from the principle of proportionality, a Member State which adopts protective measures in accordance with Directive 90/425 must comply with the obligations which that directive establishes and the procedure which it lays down. In that regard, the fifth subparagraph of Article 10(1) of that directive provides that the measures are to be communicated immediately to the Commission and the other Member States ( Lennox , paragraph 75; on the obligation to communicate without delay and to cooperate loyally where conservation measures are adopted on the basis of Article 8 of Directive 90/425, see Van den Bor , paragraphs 45 to 48; see also, by analogy, in relation to measures adopted on the basis of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (OJ 1989 L 395, p. 13), Case C-241/01 National Farmers’ Union [2002] ECR I‑9079, paragraph 60). | 48 In that regard, it is apparent from the documents provided by the Netherlands Government that it was by a letter dated 15 April 1996 from the Permanent Representation of the Kingdom of the Netherlands to the European Union, sent in response to a request made on 9 April 1996 by the Netherlands Ministry for Agriculture, Nature Management and Fisheries, that the Commission was advised of the adoption of the slaughter and compensation measures at issue in the main proceedings. While it is difficult to reconcile the time taken to submit that information with the obligations of a Member State under the third subsubparagraph of Article 8(1)(a) of Directive 90/425, that delay nevertheless does not affect the power of the Member State to adopt those measures. | 22. The relevant public is that concerned by the Community trade mark, that is to say, depending on the product or service marketed, either the public at large or a more specialised public, for example traders in a specific sector (see, by way of analogy, General Motors , paragraph 24, with regard to Article 5(2) of the directive). |
56. In that regard, it should be remembered that, according to settled case-law, the General Court’s obligation to state reasons under Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute and Article 81 of the Rules of Procedure of the General Court, does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The General Court’s reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, Case C‑440/07 P Commission v Schneider Electric [2009] ECR I‑6413, paragraph 135). | 135. It is clear from established case-law that the obligation to state reasons does not require the Court of First Instance to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the Court of First Instance has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, in particular, Joined Cases C‑120/96 P and C‑121/06 P FIAMM and Others v Council and Commission [2008] ECR I‑0000, paragraph 96 and the case-law cited). | 32 The application of the national rules of a Member State to providers of services established in other Member States must be appropriate for securing the attainment of the objective which those rules pursue, and must not go beyond what is necessary in order to attain it (Arblade, paragraph 35, and Mazzoleni and ISA, paragraph 26). |
57. Furthermore, not only the risk of seriously undermining the financial balance of a social security system may constitute per se an overriding reason in the general interest capable of justifying an obstacle to the freedom to provide services, but also the objective of maintaining, on grounds of public health, a balanced medical and hospital service open to all may also fall within one of the derogations, on grounds of public health in so far as it contributes to the attainment of a high level of health protection (see to that effect, judgment in Stamatelaki , C‑444/05, EU:C:2007:231, paragraphs 30 and 31 and the case-law cited). Thus, measures which aim, first, to meet the objective of guaranteeing in the territory of the Member State concerned sufficient and permanent access to a balanced range of high-quality medical treatment and, secondly, assist in ensuring the desired control of costs and prevention, as far as possible, of any wastage of financial, technical and human resources are also covered (see to that effect judgment in Commission v Germany , EU:C:2008:492, paragraph 61). | 61. It must be possible to plan the number of hospitals, their geographical distribution, their organisation and the facilities with which they are provided, and even the nature of the medical services which they are able to offer, in a way which, first, meets, as a general rule, the objective of guaranteeing in the territory of the Member State concerned sufficient and permanent access to a balanced range of high-quality hospital treatment and, secondly, assists in ensuring the desired control of costs and prevention, as far as possible, of any wastage of financial, technical and human resources (see Case C‑157/99 Smits and Peerbooms [2001] ECR I‑5473, paragraphs 76 to 80; Case C‑385/99 Müller-Fauré and van Riet [2003] ECR I‑4509, paragraphs 77 to 80; and Watts , paragraphs 108 and 109). | 52. Where access to the file, and particularly to exculpatory documents, is granted at the stage of the judicial proceedings, the undertaking concerned has to show, not that if it had had access to the non-disclosed documents, the Commission decision would have been different in content, but only that those documents could have been useful for its defence (Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 128; Limburgse Vinyl Maatschappij and Others v Commission , paragraph 318; and Aalborg Portland and Others v Commission , paragraph 131). |
27. En second lieu, il convient de rappeler que, si des restrictions à la libre circulation des capitaux entre les ressortissants d’États parties à l’accord EEE doivent être appréciées au regard de l’article 40 de cet accord et de l’annexe XII de celui-ci, ces stipulations revêtent la même portée juridique que celle des dispositions, identiques en substance, de l’article 63 TFUE (voir arrêts Commission/Pays-Bas, C‑521/07, EU:C:2009:360, point 33; Commission/Italie, C‑540/07, EU:C:2009:717, point 66, et Commission/Allemagne, C‑284/09, EU:C:2011:670, point 96). | 96. It follows that, while restrictions of the free movement of capital between nationals of States party to the EEA Agreement must be assessed in the light of Article 40 of and Annex XII to that agreement, those provisions have the same legal scope as the substantially identical provisions of Article 56 EC (see Case C‑521/07 Commission v Netherlands [2009] ECR I‑4873, paragraph 33, and Commission v Italy , paragraph 66). | 31
Therefore, since that judgment, the Court has repeatedly pointed out that obligation placed on the national court (see, inter alia, judgments of 14 June 2012 in Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraphs 42 and 43; of 21 February 2013 in Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 22, and of 1 October 2015 in ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 41). |
45. The Court has held on several occasions that the Commission may ask the Court to find that, in not having achieved, in a specific case, the result intended by a directive, a Member State has failed to fulfil its obligations (see, in particular, Joined Cases C-20/01 and C-28/01 Commission v Germany [2003] ECR I-3609, paragraph 30; Case C-157/03 Commission v Spain [2005] ECR I-2911, paragraph 44; and Case C-503/03 Commission v Spain , paragraph 59). | 59. In the light of all of the foregoing, the Court finds that, by refusing entry into the Schengen Area to Mr Farid and by refusing to issue a visa for the purpose of entry into that area to Mr Farid and Mr Bouchair, nationals of a third country who are the spouses of Member State nationals, on the sole ground that they were persons for whom alerts were entered in the SIS for the purposes of refusing them entry, without first verifying whether the presence of those persons constituted a genuine, present and sufficiently serious threat to one of the fundamental interests of society, the Kingdom of Spain has failed to fulfil its obligations under Articles 1 to 3 of Directive 64/221.
The second complaint
Arguments of the parties | 31. As regards the jurisdiction of the court which has opened secondary insolvency proceedings to rule on the determination of the debtor’s assets falling within the scope of the effects of those proceedings, it is settled case-law that Article 3(1) of Regulation No 1346/2000 must be interpreted as conferring international jurisdiction to hear and determine related actions on the Member State within the territory of which the insolvency proceedings have been opened (see, in particular, judgment in F-Tex , C‑213/10, EU:C:2012:215, paragraph 27 and the case-law cited). |
25. In order to answer that question, it must be pointed out, first of all, that Article 2(2)(c) of Directive 2006/54 provides that less favourable treatment of a woman related to pregnancy or maternity leave constitutes discrimination on grounds of sex and that Article 14(1) of that directive specifies the fields in which there must be no discrimination. Thus, direct and indirect discrimination are prohibited as regards conditions for access to employment, including selection criteria and recruitment conditions, access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining and also as regards work experience, conditions of employment, working conditions and participation in an organisation which represents workers or other organisations (see, to that effect, Sarkatzis Herrero , paragraph 36). | 36. As the Advocate General observed in point 34 of her Opinion, Article 2(1) of Directive 76/207 prohibits any discrimination whatsoever on grounds of sex and Article 3 et seq. of the same directive define the areas in which there is to be no discrimination. Thus, direct and indirect discrimination are prohibited as regards conditions for access to employment, including selection criteria and recruitment conditions, access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining and also as regards work experience, conditions of employment, working conditions and participation in an organisation which represents workers or others. | 42. According to the Court ' s settled case-law, as a result of the direct effect which the last sentence of Article 93(3) of the Treaty has been held to have the immediate enforceability of the prohibition on implementation referred to in that article extends to all aid which has been implemented without being notified (Case C-354/90 Fédération nationale du Commerce Extérieur des Produits Alimentaires et Syndicat Nat ional des Négociants et Transformateurs de Saumon [1991] ECR I-5505, paragraph 11). It is for the national courts to uphold the rights of the persons concerned in the event of a possible breach by the national authorities of the prohibition on putting aid into effect, taking all the consequential measures under national law as regards both the validity of decisions giving effect to aid measures and the recovery of the financial support granted (Case C-17/91 Lornoy and Others [1992] ECR I-6523, paragraph 30). |
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). | 43. Contrary to the respective legal contexts which led to the judgments in Candolin and Others , and in Farrell , Article 506 of the Portuguese Civil Code does not automatically exclude or limit disproportionately the right of the victim, in the present case that of the driver of a motor vehicle who suffered personal injury in a collision with another motor vehicle, to compensation by means of compulsory insurance against civil liability in respect of the use of motor vehicles. That provision confines itself to providing that civil liability is apportioned in accordance with the contribution of each of the vehicles to the occurrence of the damage which, consequently, influences the amount of compensation. | 79. It is clear from established case-law that the suspension of enforcement of a national provision based on a Community regulation in proceedings pending before a national court, whilst it is governed by national procedural law, is in all Member States subject to conditions which are uniform and analagous with the conditions for an application for interim relief brought before the Community Court (Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415, paragraphs 26 and 27; Case C-465/93 Atlanta Fruchthandelsgesellschaft [1995] ECR I-3761, paragraph 39; and Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others [2005] ECR I-10423, paragraph 104). However, the case in the main proceedings is different from those giving rise to those judgments in that Unibet’s application for interim relief does not seek to suspend the effects of a national provision adopted in accordance with a Community regulation where the legality of that regulation is contested, but rather the effects of national legislation where the compatibility of that legislation with Community law is contested. |
102. However, when examining a comparable procedure, the Court of Justice has taken the view that the date which should be used as a reference to determine whether the application in time of a directive imposing an environmental impact assessment was the date on which the project was formally submitted because the various phases of examination of a project are so closely connected that they represent a complex operation (Case C-209/04 Commission v Austria [2006] ECR I-2755, paragraph 58). | 58. Both Directive 85/337 and the Habitats Directive pertain to the assessment of the effects of certain public and private projects on the environment. In both cases, the assessment procedure takes place before the project is finally decided upon. The results of that assessment must be taken into consideration when the decision on the project is made, and the decision may be amended depending on the results. The various phases of examination of a project are so closely connected that they represent a complex operation. The fact that the content of some requirements differs does not affect this assessment. It follows that this complaint must be considered as at the date on which the project was formally presented, namely the date referred to in paragraph 54 of this judgment. | 38. This must be so where that rule would allow the proprietor of the trade mark to partition national markets and thus assist the maintenance of price differences which may exist between Member States (see, to that effect, inter alia , Case C-349/95 Loendersloot [1997] ECR I-6227, paragraph 23). |
39. In that regard, Article 9(1) of Directive 95/59 provides that manufacturers, or, where appropriate, their representatives or authorised agents in the Community and importers of tobacco from non-member countries are to be free to determine the maximum retail selling price for each of their products, the aim being to ensure effective competition between them ( Commission v Greece , paragraph 20). That provision seeks to ensure that the determination of the tax base of the proportional excise duty on tobacco products, that is the maximum retail selling price of those products, is subject to the same rules in all the Member States. It also aims, as the Advocate General states in point 40 of her Opinion, to maintain the freedom of the abovementioned economic operators, by which they may make effective use of the competitive advantage resulting from any lower cost prices. | 20 The first paragraph of Article 9 of that directive provides that manufacturers or, where appropriate, their representatives or authorised agents in the Community and importers of tobacco from non-member countries are to be free to determine the maximum retail selling price for each of their products, the aim being to ensure effective competition between them. | 31. Article 59 of the Treaty requires the elimination of any restriction on the freedom to provide services, even if it applies to national providers of services and to those of other Member States alike, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services (see to that effect Case C-76/90 Säger [1991] ECR I-4221, paragraph 12, and Case C-58/98 Corsten [2000] ECR I-7919, paragraph 33). Moreover, freedom to provide services is enjoyed by both providers and recipients of services (see to that effect Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, paragraph 16). |
55. In that regard, in addition to the undertaking in receipt of aid, competing undertakings have been recognised as individually concerned by a Commission decision terminating the formal examination procedure where they have played an active role in that procedure, provided that their position on the market is substantially affected by the aid which is the subject of the contested decision (see, inter alia, Cofaz and Others v Commission , paragraph 25, and Comité d’entreprise de la Société française de production and Others v Commission , paragraph 40). | 25 THE SAME CONCLUSIONS APPLY TO UNDERTAKINGS WHICH HAVE PLAYED A COMPARABLE ROLE IN THE PROCEDURE REFERRED TO IN ARTICLE 93 OF THE EEC TREATY PROVIDED , HOWEVER , THAT THEIR POSITION ON THE MARKET IS SIGNIFICANTLY AFFECTED BY THE AID WHICH IS THE SUBJECT OF THE CONTESTED DECISION . ARTICLE 93 ( 2 ) RECOGNIZES IN GENERAL TERMS THAT THE UNDERTAKINGS CONCERNED ARE ENTITLED TO SUBMIT THEIR COMMENTS TO THE COMMISSION BUT DOES NOT PROVIDE ANY FURTHER DETAILS .
| 72. Moreover, where the Court still has a doubt, the benefit of that doubt must be given to the undertakings accused of the infringement (see, to that effect, Case 27/76 United Brands and United Brands Continentaal v Commission [1978] ECR 207, paragraph 265). Indeed, the presumption of innocence constitutes a general principle of European Union law, currently laid down in Article 48(1) of the Charter of Fundamental Rights of the European Union. |
12 That being so, the fact that in the performance of their functions tax collectors are tied to the local authority, which can give them instructions, and the fact that they are subject to disciplinary control by that authority are not decisive for the purpose of defining their legal relationship with the Commune for the purposes of Article 4(4) of the directive (see, with regard to disciplinary control, the judgment of the Court in Case 235/85 Commission v Netherlands [1987] ECR 1471, paragraph 14). | 14 ARTICLE 4 ( 4 ) EXCLUDES ALL PERSONS WHO ARE BOUND TO AN EMPLOYER BY A CONTRACT OF EMPLOYMENT OR BY ANY OTHER LEGAL TIES CREATING THE RELATIONSHIP OF EMPLOYER AND EMPLOYEE AS REGARDS WORKING CONDITIONS, REMUNERATION AND EMPLOYER' S LIABILITY . NOTARIES AND BAILIFFS, HOWEVER, ARE NOT BOUND TO THE PUBLIC AUTHORITIES AS EMPLOYEES SINCE THEY ARE NOT INTEGRATED INTO THE PUBLIC ADMINISTRATION . THEY CARRY OUT THEIR ACTIVITIES ON THEIR OWN ACCOUNT AND ON THEIR OWN RESPONSIBILITY; THEY ARE FREE, SUBJECT TO CERTAIN LIMITS IMPOSED BY STATUTE, TO ARRANGE HOW THEY SHALL PERFORM THEIR WORK AND THEY THEMSELVES RECEIVE THE EMOLUMENTS WHICH MAKE UP THEIR INCOME . THE FACT THAT THEY ARE SUBJECT TO DISCIPLINARY CONTROL UNDER THE SUPERVISION OF THE PUBLIC AUTHORITIES ( A SITUATION TO BE FOUND IN OTHER REGULATED PROFESSIONS ) AND THE FACT THAT THEIR REMUNERATION IS DETERMINED BY STATUTE ARE NOT SUFFICIENT GROUNDS FOR REGARDING THEM AS PERSONS WHO ARE BOUND BY LEGAL TIES TO AN EMPLOYER WITHIN THE MEANING OF ARTICLE 4 ( 4 ). | 66 In that connection, the Court of Justice has expressly held that where national legislation, though applicable without discrimination to all vessels whether used by national providers of services or by those from other Member States, operates a distinction according to whether those vessels are engaged in internal transport or in intra-Community transport, thus securing a special advantage for the domestic market and the internal transport services of the Member State in question, that legislation must be deemed to constitute a restriction on the freedom to provide maritime transport services (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 21). There is no disputing that a measure of this type also confers an advantage on carriers who operate more than others on domestic rather than international routes and so leads to dissimilar treatment being applied to equivalent transactions, thereby affecting free competition. In this case, the discrimination results from the application of a different tariff system for the same number of landings of aircraft of the same type. |
53. In that regard, it must be borne in mind that, in accordance with settled case‑law, Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of European Union law, or consideration of their validity, which are necessary for the resolution of the case before them. National courts are, moreover, free to exercise that discretion at whatever stage of the proceedings they consider appropriate (see Case C‑173/09 Elchinov [2010] ECR I‑8889, paragraph 26 and the case‑law cited). | 26. It is settled case-law that Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of European Union law, or consideration of their validity, which are necessary for the resolution of the case (see, to that effect, Case 166/73 Rheinmühlen-Düsseldorf [1974] ECR 33, paragraph 3; Case C‑348/89 Mecanarte [1991] ECR I‑3277, paragraph 44; Case C‑261/95 Palmisani [1997] ECR I‑4025, paragraph 20; Case C‑210/06 Cartesio [2008] ECR I‑9641, paragraph 88; and Joined Cases C‑188/10 Melki and Abdeli [2010] ECR I‑0000, paragraph 41). National courts are, moreover, free to exercise that discretion at whatever stage of the proceedings they consider appropriate (see, to that effect, Melki and Abdeli , paragraphs 52 and 57). | 64 Furthermore, the question whether a statement of reasons satisfies the requirements must be assessed with reference not only to the wording of the impugned measure but also to its context and to the whole body of legal rules governing the matter in question. Consequently, if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution (Case C-122/94 Commission v Council [1996] ECR I-881, paragraph 29). |
20
As a consequence, the fact that a party disagrees with that Opinion, irrespective of the questions examined therein, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraph 61 and the case-law cited). | 61
Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions examined in that Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (see judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 62, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26). | 50. The national legislation at issue in the main proceedings can thus be distinguished from that considered in the case which gave rise to the judgment in Case 47/69 France v Commission [1970] ECR 487, paragraph 20, where it was provided that the aid which it established increased ‘in proportion to the increase in the revenue from the charge’. |
25. It is common ground that, at the expiry of the time-limit, the measures necessary to recover the aid in question had not been taken by the Italian Government. In addition, it is apparent from paragraph 105 of the judgment in Italy v Commission , cited above, that more than two and a half years after that time-limit, the Court found that the Italian Government had made no attempt to recover the aid in question. | 105 As to the argument that repayment would be complicated and hard to verify and the argument concerning the wide reach of the aid scheme across the fabric of national production industry, it is sufficient to point out, in accordance with the case-law of the Court, that apprehension of even insuperable internal difficulties cannot justify a failure by a Member State to fulfil its obligations under Community law (see, in particular, Case C-404/97 Commission v Portugal [2000] ECR I-4897, paragraph 52). In this case, since the Italian Government has made no attempt to recover the aid in question, implementation of the decision to effect recovery cannot be shown to be impossible (Case C-6/97 Italy v Commission [1999] ECR I-2981, paragraph 34). | 36
Article 15(3) of Decision 2011/278 adopted to implement Article 10a(5) of Directive 2003/87, does not permit the taking into account of the emissions of electricity generators in determining the maximum annual amount of allowances (see, to that effect, judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 68). |
26 Public placement offices entrusted under the legislation of a Member State with the operation of services of general economic interest, such as those envisaged in Article 11(1) of Law No 264, remain subject to the competition rules pursuant to Article 90(2) of the Treaty unless and to the extent to which it is shown that their application is incompatible with discharge of their duties (see Case 155/73 Sacchi [1974] ECR 409, paragraph 15, and Höfner and Elser, cited above, paragraph 24). | 15 MOREOVER, IF CERTAIN MEMBER STATES TREAT UNDERTAKINGS ENTRUSTED WITH THE OPERATION OF TELEVISION, EVEN AS REGARDS THEIR COMMERCIAL ACTIVITIES, IN PARTICULAR ADVERTISING, AS UNDERTAKINGS ENTRUSTED WITH THE OPERATION OF SERVICES OF GENERAL ECONOMIC INTEREST, THE SAME PROHIBITIONS APPLY, AS REGARDS THEIR BEHAVIOUR WITHIN THE MARKET, BY REASON OF ARTICLE 90 ( 2 ), SO LONG AS IT IS NOT SHOWN THAT THE SAID PROHIBITIONS ARE INCOMPATIBLE WITH THE PERFORMANCE OF THEIR TASKS . | 37. Par conséquent, la situation de M. Imfeld relève non pas de la libre circulation des travailleurs, mais de la liberté d’établissement, qui comporte, pour les ressortissants de l’Union, l’accès aux activités non salariées et leur exercice (voir, notamment, arrêt du 11 mars 2004, de Lasteyrie du Saillant, C‑9/02, Rec. p. I‑2409, point 40). |
93. The Court has also held that, in the matter of games of chance, it is in principle necessary to examine separately for each of the restrictions imposed by the national legislation whether, in particular, it is suitable for achieving the objective or objectives invoked by the Member State concerned and whether it does not go beyond what is necessary in order to achieve those objectives ( Placanica and Others , paragraph 49). | 49. The restrictive measures imposed by the national legislation should therefore be examined in turn in order to determine in each case in particular whether the measure is suitable for achieving the objective or objectives invoked by the Member State concerned and whether it does not go beyond what is necessary in order to achieve those objectives. In any case, those restrictions must be applied without discrimination (see to that effect Gebhard , paragraph 37, as well as Gambelli and Others , paragraphs 64 and 65, and Case C‑42/02 Lindman [2003] ECR I‑13519, paragraph 25).
The licensing requirement | 19. Article 11 of the Directive lays down strict conditions for the setting free of any animals in the context of experiments within the meaning of the Directive (Case C-152/00 Commission v France [2002] ECR I-6973, paragraph 41). Such setting free requires an authorisation from the competent authority, which may be granted only where that is necessary for the legitimate purposes of the experiment, the authority is satisfied that the maximum possible care has been taken to safeguard the well-being of the animal concerned, the animal's state of health allows it to be set free as proposed and there is no danger for public health and the environment by reason of its being set free. |
33. The Court next noted that, regarding the place of performance of the obligations arising from contracts for the sale of goods, Regulation No 44/2001, in the first indent of Article 5(1)(b), defines that criterion of a link autonomously, in order to reinforce the objectives of unification of the rules of jurisdiction and predictability. Accordingly, in such cases the place of delivery of the goods is established as the autonomous linking factor to apply to all claims founded on one and the same contract of sale ( Color Drack , paragraphs 24 and 26). | 26. In the context of Regulation No 44/2001, contrary to Lexx’s submissions, that rule of special jurisdiction in matters relating to a contract establishes the place of delivery as the autonomous linking factor to apply to all claims founded on one and the same contract for the sale of goods rather than merely to the claims founded on the obligation of delivery itself. | 30. Such a practice is, in principle, permissible in the light of European Union law and, in particular, Article 3(3) of Regulation No 2988/95 (see, to this effect, Josef Vosding Schlacht‑, Kühl- und Zerlegebetrieb and Others , paragraph 47). However, that practice must still comply with the general principles of European Union law, which include the principle of legal certainty (see, to this effect, Case C-367/09 SGS Belgium and Others [2010] ECR I-0000, paragraph 40). |
56. It is true that the Court has also held that, where the European Union intends to implement a particular obligation assumed in the context of the agreements concluded in the context of the World Trade Organization (‘the WTO agreements’) or where the EU act at issue refers explicitly to specific provisions of those agreements, the Court should review the legality of the act at issue and the acts adopted for its implementation in the light of the rules of those agreements (see judgments in Fediol v Commission , EU:C:1989:254, paragraphs 19 to 23; Nakajima v Council , EU:C:1991:186, paragraphs 29 to 32; Germany v Council , C‑280/93, EU:C:1994:367, paragraph 111; and Italy v Council , C‑352/96, EU:C:1998:531, paragraph 19). | 23 In the light of the foregoing the objection of inadmissibility raised by the Commission must be rejected .
Substance | 40
As regards, in particular, the conditions relating to obtaining the full deduction, the Court has held that a threshold of 10% indeed serves to exclude from the scope of the fiscal advantage shareholdings acquired solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking, but does not in itself make the deduction applicable only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities (judgment of 11 September 2014, Kronos International, C‑47/12, EU:C:2014:2200, paragraph 34 and 35). The Court considered that a holding of such a size does not necessarily imply that the owner of the holding exerts a definite influence over the decisions of the company in which it is a shareholder (see, to that effect, judgments of 3 October 2013, Itelcar, C‑282/12, EU:C:2013:629, paragraph 22, and of 11 September 2014, Kronos International, C‑47/12, EU:C:2014:2200, paragraph 35). |
33
It is also important to note that the application of the European Union rules on State aid is based on an obligation of sincere cooperation between, on the one hand, the national courts and, on the other, the Commission and the Courts of the European Union, in the context of which each acts on the basis of the role assigned to it by the Treaty. In the context of that cooperation, national courts must take all the necessary measures, whether general or specific, to ensure the fulfilment of the obligations under European Union law and refrain from taking those which may jeopardise the attainment of the objectives of the Treaty, as follows from Article 4(3) TEU. Therefore, national courts must, in particular, refrain from taking decisions which conflict with a decision of the Commission, even if it is provisional (see judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 41). | 41. Il importe également de souligner que l’application des règles de l’Union en matière d’aides d’État repose sur une obligation de coopération loyale entre, d’une part, les juridictions nationales et, d’autre part, la Commission et les juridictions de l’Union, dans le cadre de laquelle chacun agit en fonction du rôle qui lui est assigné par le traité. Dans le cadre de cette coopération, les juridictions nationales doivent prendre toutes mesures générales ou particulières propres à assurer l’exécution des obligations découlant du droit de l’Union et de s’abstenir de celles qui sont susceptibles de mettre en péril la réalisation des buts du traité, ainsi qu’il découle de l’article 4, paragraphe 3, TUE. Ainsi, les juridictions nationales doivent, en particulier, s’abstenir de prendre des décisions allant à l’encontre d’une décision de la Commission, même si elle revêt un caractère provisoire. | 33. In particular, when, as in the present case, the trade mark for which registration is sought consists of the three-dimensional shape of the packaging of the goods in question – a fortiori where the goods, because of their very nature, must be packaged in order to be marketed, so that the packaging chosen imposes its shape on the goods and, for the purposes of examining an application for registration as a mark, must be assimilated to the shape of the product ( Henkel , supra, paragraph 33) –, the relevant norm or customs may be those which apply in the sector of the packaging of goods which are of the same type and intended for the same consumers as those goods in respect of which registration is sought. |