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Il est de jurisprudence constante que le droit d’obtenir le remboursement des taxes perçues par un État membre en violation
des règles du droit de l’Union est la conséquence et le complément des droits conférés aux justiciables par les dispositions
du droit de l’Union prohibant de telles taxes, telles qu’elles ont été interprétées par la Cour. La Cour a également déjà
jugé que, lorsqu’un État membre a prélevé des taxes en violation des règles du droit de l’Union, les justiciables ont droit
au remboursement non seulement de l’impôt indûment perçu, mais également des montants payés à cet État ou retenus par celui-ci
en rapport direct avec cet impôt. Les États membres sont donc tenus de rembourser, en principe, les impositions perçues en
violation du droit de l’Union avec les intérêts y afférents (voir arrêts du 19 juillet 2012, Littlewoods Retail e.a., C‑591/10,
EU:C:2012:478, points 24 à 26, ainsi que du 6 octobre 2015, Târșia, C‑69/14, EU:C:2015:662, points 24 et 25). | 24. It is settled case-law that the right to a refund of charges levied in a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court (see, inter alia, Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12, and Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 84). The Member State is therefore in principle required to repay charges levied in breach of Community law (Joined Cases C-192/95 to C-218/95 Comateb and Others [1997] ECR I-165, paragraph 20; Metallgesellschaft , paragraph 84; Case C-147/01 Weber’s Wine World and Others [2003] ECR I-11365, paragraph 93; Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paragraph 202). | 44. A finding of abuse requires a combination of objective and subjective elements (see SICES and Others , EU:C:2014:145, paragraph 31). |
14. It is to be remembered in this regard that it is not for the Court of Justice to rule on the applicability of provisions of national or, in this case, international law which are relevant to the outcome of the main proceedings. The Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the legislative context, as described in the order for reference, in which the question put to it is set (see, to that effect, Case C‑475/99 Ambulanz Glöckner [2001] ECR I-8089, paragraph 10, and Case C‑153/02 Neri [2003] ECR I-13555, paragraphs 34 and 35). | 34. It is to be remembered in this regard that it is not for the Court of Justice to rule on the interpretation and applicability of provisions of national law or to establish the facts relevant to the decision in the main proceedings. | 30. Thus, there is no provision of EU law which prevents the Member States, or, as the case may be, management and labour from exceeding the minimum protection of workers guaranteed by EU legislation and providing for the maintenance of all the components of the total remuneration to which such workers are entitled during their period of work (see, to that effect, Parviainen , paragraph 63). |
74. The principle of legal certainty requires, moreover, that rules of law be clear, precise and predictable as regards their effects, in particular where they may have unfavourable consequences for individuals and undertakings (see, to that effect, Case C‑17/03 VEMW and Others [2005] ECR I‑4983, paragraph 80 and the case‑law cited). | 80. With regard to the principle of legal certainty, this requires in particular that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them (see, to this effect, Case 325/85 Ireland v Commission [1987] ECR 5041, Case C-143/93 Van Es Douane Agenten [1996] ECR I-431, paragraph 27; and Case C-63/93 Duff and Others [1996] ECR I-569, paragraph 20). | 31 It follows from that case-law that, despite the relatively wide discretion enjoyed by the Member States in implementing certain provisions of the Sixth Directive, individuals may effectively plead before national courts the provisions of the directive which are sufficiently clear, precise and unconditional (see Case C-10/92 Balocchi v Ministero delle Finanze [1993] ECR I-5105, paragraph 34, and Case C-62/93 BP Soupergaz v Greek State [1995] ECR I-1883, paragraph 34). |
20 The aim of Regulation No 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker's family in the society of the host country (Case C-308/89 Di Leo [1990] ECR I-4185, paragraph 13). | 13 It must also be borne in mind that the aim of Regulation No 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker' s family in the society of the host country . If such integration is to be successful, it is essential for the child of a Community worker who resides with his family in the host Member State to have the opportunity to choose a course under the same conditions as a child of a national of that State . | 59. Before Directive 92/85 came into force, the Court had already held that, by virtue of the principle of non-discrimination and, in particular, under the provisions of Directive 76/207, protection against dismissal must be granted to women not only during maternity leave, but also throughout pregnancy. According to the Court, a dismissal occurring during those periods affects only women and therefore constitutes direct discrimination on grounds of sex (see, to that effect, Case C‑179/88 Handels- og Kontorfunktionærernes Forbund [1990] ECR I‑3979, paragraph 13; Case C‑394/96 Brown [1998] ECR I‑4185, paragraphs 24 to 27; and Case C‑460/06 Paquay [2007] ECR I‑8511, paragraph 29). |
40 The application of Community law on freedom of movement for workers in relation to national rules concerning unemployment insurance requires that a person invoking that freedom must have already participated in the employment market by exercising an effective and genuine occupational activity, which has conferred on him the status of a worker within the Community meaning of that term (see in particular, with regard to a study grant, Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205, paragraph 21; regarding the grant of public financial assistance, Case C-357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027, paragraph 10). By definition, that is not the case where young people are seeking their first employment. | 10 It should be recalled at the outset that the Court has consistently held that the concept of worker has a Community meaning and must not be interpreted in a restrictive manner. Nevertheless, in order to be regarded as a worker, a person must perform effective and genuine activities to the exclusion of activities on such a small scale as to be purely marginal and ancillary. The essential characteristic of an employment relationship is that for a certain period a person performs services for and under the direction of another person in return for which he receives remuneration (see in particular the judgment in Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205, paragraph 21). In this context, the nature of the legal relationship between the employee and the employer is not decisive in regard to the application of Article 48 of the EEC Treaty (see the judgment in Case 344/87 Bettray v Staatssecretaris van Justitie [1989] ECR 1621, paragraph 16). | 64. Ainsi que la Cour l’a itérativement jugé, les mesures nationales susceptibles de gêner ou de rendre moins attrayant l’exercice des libertés fondamentales garanties par le traité ne peuvent être compatibles avec celui-ci que si elles remplissent quatre conditions, à savoir qu’elles s’appliquent de manière non discriminatoire, qu’elles se justifient par des raisons impérieuses d’intérêt général, qu’elles soient propres à garantir la réalisation de l’objectif légitime qu’elles poursuivent et qu’elles n’aillent pas au-delà de ce qui est nécessaire pour l’atteindre (voir, en ce sens, arrêt du 11 juin 2009, Commission/Autriche, C-564/07, point 31 et jurisprudence citée). |
44. It should be noted, in that regard, that the principle of the common system of VAT is the application to goods and services, up to and including the retail trade stage, of a general tax on consumption exactly proportional to the price of the goods and services, whatever the number of transactions which take place in the production and distribution process before the stage at which tax is charged. However, VAT is chargeable on each transaction only after deduction of the amount of VAT borne directly by the costs of the various price components. The procedure for deduction is so arranged that taxable persons are authorised to deduct from the VAT for which they are liable the input VAT already charged on the goods or services and that the tax is charged, at each stage, only on the added value and is ultimately borne by the final consumer (see Case C‑475/03 Banca popolare di Cremona [2006] ECR I‑9373, paragraphs 21 and 22). | 21. Under Article 2 of the First Directive, the principle of the common system of VAT involves the application to goods and services, up to and including the retail trade stage, of a general tax on consumption exactly proportional to the price of the goods and services, whatever the number of transactions which take place in the production and distribution process before the stage at which tax is charged. | 61
The factors capable of affecting the assessment of the gravity of the infringements include 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 the cartel, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 242, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 100). |
69 It must be observed, first, that the system of inspection described by the Greek Government in this case does not differ in any way from the system of inspection which it referred to in Case C-46/97 Greece v Commission [2000] ECR I-5719. In paragraph 38 of the judgment in that case, the Court held that that system of controls lacked the objectivity required by Community legislation. As the Greek Government has not adduced any new evidence in that respect, its argument on that point must be rejected. | 38 Those findings, which are not contradicted by the Greek Government, show that the system of inspections put in place relies exclusively on the competence and action of specific agents, who alone are in a position to verify the accuracy of applications for premiums. Verification by external services, both national and Community, is thus precluded. The system of controls therefore lacks the objectivity required by Community legislation. | 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). |
78 With regard to the Commission's failure to observe the 20% `threshold' below which it is its policy not to require withdrawal in calculating the corrections on which it has decided, it should be observed that the Italian Government raised that argument for the first time at the hearing. Since the facts underlying it were already known at the stage of the written procedure, it must be rejected as out of time and therefore inadmissible (see Case C-55/91 Italy v Commission, cited above, paragraph 40; Case C-323/96 Commission v Belgium [1998] ECR I-5063, paragraph 38; and Case C-54/95 Germany v Commission [1999] ECR I-35, paragraph 28). | 38 Quite apart from the question of the belated nature of that plea, which the Belgian Government raised for the first time at the hearing without submitting any valid reason to explain the delay, it should be observed that the Belgian Government has not put forward anything to show that the works contracts put out to tender by the Vlaamse Raad came within one of the situations referred to in Article 4. | 69 Finally, as the Court pointed out in Hoffmann-La Roche, the trade mark owner must be given advance notice of the repackaged product being put on sale. The owner may also require the importer to supply him with a specimen of the repackaged product before it goes on sale, to enable him to check that the repackaging is not carried out in such a way as directly or indirectly to affect the original condition of the product and that the presentation after repackaging is not such as to damage the reputation of the trade mark. Similarly, such a requirement affords the trade mark owner a better possibility of protecting himself against counterfeiting. |
14 With regard to those characteristics, the first point to bear in mind is that, as the Court has repeatedly held (see, in particular, the judgments in Case 252/86 Bergandi v Directeur-Général des Impôts [1988] ECR 1343, paragraph 15, Joined Cases 93 and 94/88 Wisselink and Others v Staatssecretaris van Financiën [1989] ECR 2671, paragraph 18, Case C-109/90 Giant v Gemeente Overijse [1991] ECR I-1385, paragraphs 11 and 12, Case C-200/90 Dansk Denkavit and Poulsen v Skatteministeriet [1992] ECR I-2217, paragraph 11, and Case C-347/90 Bozzi [1992] ECR I-2947, paragraph 12), VAT applies generally to transactions relating to goods or services, it is proportional to the price of those goods or services, it is charged at each stage of the production and distribution process and finally it is imposed on the added value of goods and services, since the tax payable on a transaction is calculated after deduction of the tax paid on the previous transaction. | 11 With respect first of all to the concept of "turnover taxes", it should be noted that, as the Court stated in the abovementioned judgments and in the judgment in Case 295/84 Rousseau Wilmot v Organic [1985] ECR 3759, at paragraph 16, the purpose of Article 33 is to prevent the functioning of the common system of VAT from being jeopardized by the introduction of taxes, duties or charges levied on the movement of goods and services in a way comparable to VAT. Taxes, duties and charges must in any event must be regarded as being imposed on the movement of goods and services in a way comparable to VAT if they exhibit the essential characteristics of VAT. As the Court stated in the above judgments, those characteristics are as follows. VAT applies generally to transactions relating to goods or services; it is proportional to the price of those goods or services; it is charged at each stage of the production and distribution process; and finally it is imposed on the added value of goods and services, since the tax payable on a transaction is calculated after deducting the tax paid on the previous transaction. | 195. It is established case-law that protection against self-incrimination is not affected by requests for information made on the basis of Article 18(2) of Regulation No 1/2003 (see, to that effect, judgments in Dalmine v Commission , C‑407/04 P, EU:C:2007:53, paragraph 35, and Erste Group Bank and Others v Commission , C‑125/07 P, C‑133/07 P and C‑137/07 P, EU:C:2009:576, paragraph 272). |
77. According to the case-law of the Court a difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment (Case C-127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑9895, paragraph 47). | 47. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment (see, to that effect, Case 114/76 Bela-Mühle Bergmann [1977] ECR 1211, paragraph 7; Case 245/81 Edeka Zentrale [1982] ECR 2745, paragraphs 11 and 13; Case C‑122/95 Germany v Council [1998] ECR I‑973, paragraphs 68 and 71; and Case C‑535/03 Unitymark and North Sea Fishermen’s Organisation [2006] ECR I‑2689, paragraphs 53, 63, 68 and 71). | 38. That approach is perfectly consistent with the case-law of the Court of Justice. Thus, at paragraphs 181 to 183 of the judgment in Limburgse Vinyl Maatschappij and Others v Commission , the Court held, in particular, that the administrative procedure may involve an examination in two successive stages, each corresponding to its own internal logic. The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by the Community legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned. |
15 In the order for reference the Verwaltungsgericht observes that in its judgment in Joined Cases C-143/88 and C-92/89 Zuckerfabrik Suederdithmarschen and Zuckerfabrik Soest [1991] ECR I-415 the Court held that the coherence of interim legal protection of individuals requires that a national court which has made a reference to the Court of Justice for a preliminary ruling on the validity of a regulation should be able to order suspension of enforcement of a national administrative measure based on that regulation. It notes that the Court has not yet ruled, however, on the power of a national court in such circumstances to order interim measures which create a new legal position for the benefit of the person seeking legal protection. The Verwaltungsgericht suggests that the grant of such interim relief may call into question the full effectiveness of the regulation in all the Member States. | 19 Furthermore, in its judgment in Case C-213/89 (The Queen v Secretary of State for Transport, ex parte Factortame Ltd and Others [1990] ECR I-2433), delivered in a case concerning the compatibility of national legislation with Community law, the Court, referring to the effectiveness of Article 177, took the view that the national court which had referred to it questions of interpretation for a preliminary ruling in order to enable it to decide that issue of compatibility, had to be able to grant interim relief and to suspend the application of the disputed national legislation until such time as it could deliver its judgment on the basis of the interpretation given in accordance with Article 177. | 135. In that respect, it should be recalled that the protection of SPAs is not to be limited to measures intended to avoid external anthropogenic impairment and disturbance but must also, according to the situation that presents itself, include positive measures to preserve or improve the state of the site ( Commission v Austria , paragraph 59 and case-law cited). |
9 It should be recalled also, that, even where the default has been remedied after the time-limit given in the reasoned opinion has expired, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur, as a result of its default, towards other Member States, the Community or private parties (see, inter alia, Case C-29/90 Commission v Greece [1992] ECR I-1971, paragraph 12, and Case C-207/00 Commission v Italy [2001] ECR I-4571, paragraph 28). | 12 The Court has consistently held (see, most recently, the judgment in Case C-59/89 Commission v Germany [1991] ECR I-2606, paragraph 35) that the subject-matter of an action brought under Article 169 of the Treaty is determined by the Commission' s reasoned opinion and that, even where the default has been remedied after the time-limit prescribed in the second paragraph of that article has expired, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur, as a result of its default towards other Member States, the Community or private parties. | 55. In accordance with settled case-law, the Community legislature has a wide discretion in this field, corresponding to the political responsibilities given to it by Articles 34 EC to 37 EC. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion (Case C-189/01 Jippes and Others [2001] ECR I‑5689, paragraph 80, and Case C-304/01 Spain v Commission [2004] ECR I‑7655, paragraph 23). |
52. Although the time-limits prescribed by those articles are mandatory (see, to that effect, Molkereigenossenschaft Wiedergeltingen , paragraphs 38 to 40), the fact remains that they do not preclude the competent authorities of a Member State from making after-the-event checks and corrections for the purpose of ensuring that that Member State’s production does not exceed the guaranteed global quantity allocated to it. | 39 As regards the importance of that deadline, according to the fifth recital in the preamble to Regulation No 536/93, the regulation lays down strict requirements as regards deadlines for communication so that lessons can be learned from the past, when major delays in the transmission of figures on collections and in payment of the levy prevented the arrangements from being fully effective. | 21. As is quite clear from the wording of Articles 17(5) and 19(1) of the Sixth Directive, the latter provision refers only to the proportion deductible under the first subparagraph of Article 17(5) of the directive, and therefore lays down a detailed rule for calculating the proportion referred to in the first of those two provisions only ( Royal Bank of Scotland , paragraph 22) and, by extension, for the deduction to be made pursuant to Article 17(5)(d) of the said directive. |
23
Conversely, it is clear from the Court’s case-law that the premature failure of certain parts of an aircraft does not constitute extraordinary circumstances, since such a breakdown remains intrinsically linked to the operating system of the aircraft. That unexpected event is not outside the actual control of the air carrier, since it is required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business (see, to that effect, judgment of 17 September 2015, van der Lans, C‑257/14, EU:C:2015:618, paragraphs 41 and 43). | 43. Second, the prevention of such a breakdown or the repairs occasioned by it, including the replacement of a prematurely defective component, is not beyond the actual control of that carrier, since the latter is required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business. | 27. It should be recalled that, according to settled case-law, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228(2) EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see Case C‑304/02 Commission v France [2005] ECR I‑6263, paragraph 30, and Case C‑369/07 Commission v Greece [2009] ECR I‑5703, paragraph 43), in this case 1 April 2008. |
37
The customs value must reflect the real economic value of imported goods and take into account all the elements of those goods that have economic value (judgment of 15 July 2010, Gaston Schul, C‑354/09, EU:C:2010:439, paragraph 29 and the case-law cited). | 29. Furthermore, that customs value must reflect the real economic value of imported goods and take into account all of the elements of those goods that have economic value (see Case C‑306/04 Compaq Computer International Corporation [2006] ECR I‑10991, paragraph 30, and Mitsui & Co. Deutschland , paragraph 20). | 30
The concept of ‘pay’ used in Article 11 of Directive 92/85, like the definition in Article 119 of the EC Treaty (subsequently Article 141 EC), encompasses the consideration paid directly or indirectly by the employer during the worker’s maternity leave in respect of her employment. By contrast, the concept of an ‘allowance’ to which Article 11 also refers includes all income received by the worker during her maternity leave which is not paid to her by her employer pursuant to the employment relationship (see, to that effect, judgments of 27 October 1998 in Boyle and Others, C‑411/96, EU:C:1998:506, paragraph 31, and 1 July 2010 in Parviainen, C‑471/08, EU:C:2010:391, paragraph 35). |
27. Neither the origin of the funds from which the remuneration is paid nor the limited amount of that remuneration can have any consequence in regard to whether or not the person is a ‘worker’ for the purposes of Community law (see Case 344/87 Bettray [1989] ECR 1621, paragraph 15, and Case C‑10/05 Mattern and Cikotic [2006] ECR I‑3145, paragraph 22). | 15 That conclusion is not altered by the fact that the productivity of persons employed in the scheme is low and that, consequently, their remuneration is largely provided by subsidies from public funds . Neither the level of productivity nor the origin of the funds from which the remuneration is paid can have any consequence in regard to whether or not the person is to be regarded as a worker . | 47. Indeed, the Court has stated several times that citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see Case C‑34/09 Ruiz Zambrano [2011] ECR I‑0000, paragraph 41 and case-law cited). Furthermore, the Court has held that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (see Ruiz Zambrano , paragraph 42). |
210 Such a duration appears prima facie considerable. However, as pointed out in paragraph 187 of this judgment, the reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (Baustahlgewebe, paragraph 29). | 29 It must first be stated that such a duration is, at first sight, considerable. However, the reasonableness of such a period must be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (see, by analogy, the judgments of the European Court of Human Rights in the cases of Erkner and Hofauer of 23 April 1987, Series A No 117, § 66; Kemmache of 27 November 1991, Series A No 218, § 60; Phocas v France of 23 April 1996, Recueil des arrêts et décisions 1996-II, p. 546, § 71, and Garyfallou AEBE v Greece of 27 September 1997, Recueil des arrêts et décisions 1997-V, p. 1821, § 39). | 147
Article 11 of the Charter affirms the freedom of expression and information. That freedom is also protected under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which applies, in particular, as is clear from the case-law of the European Court of Human Rights, to the dissemination by a business of commercial information, including in the form of advertising. Given that the freedom of expression and information laid down in Article 11 of the Charter has — as is clear from Article 52(3) thereof and the Explanations Relating to the Charter as regards Article 11 — the same meaning and scope as the freedom guaranteed by the Convention, it must be held that that freedom covers the use by a business, on the packaging and labelling of tobacco products, of indications such as those covered by Article 13(1) of Directive 2014/40 (judgment in Neptune Distribution, C‑157/14, EU:C:2015:823, paragraphs 64 and 65). |
37 It is clear, however, from the judgments in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, Case C-128/93 Fisscher [1994] ECR I-4583, paragraphs 17 to 24, and Case C-246/96 Magorrian and Cunningham v EHSSB and DHSS [1997] ECR I-7153, paragraphs 27 to 35, that the limitation in time of the effects of Article 119 resulting from both the Barber judgment and the Protocol concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions (see Case C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223, paragraph 19). | 44 In those circumstances, overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many contracted-out pension schemes . It is appropriate, however, to provide for an exception in favour of individuals who have taken action in good time in order to safeguard their rights . Finally, it must be pointed out that no restriction on the effects of the aforesaid interpretation can be permitted as regards the acquisition of entitlement to a pension as from the date of this judgment . | 33. As regards the first ground of appeal, as the Advocate General observed in paragraphs 36 to 38 of his Opinion, it matters little whether the principle set out in Article 9(5) of the basic regulation is described as the ‘principle of equal treatment’ or the ‘principle of non-discrimination’. They are simply two labels for a single general principle of Community law, which prohibits both treating similar situations differently and treating different situations in the same way unless there are objective reasons for such treatment (see, inter alia, Case C-442/00 Rodríguez Caballero [2002] ECR I-11915, paragraph 32 and the case-law cited). It is clear from paragraphs 50, 51 and 57 of the judgment under appeal that the Court of First Instance examined the treatment given to imports of LAECs from Japan, the United States and Thailand in the light of that principle, as set out, in particular, in Article 9(5). Accordingly, Chemi-Con cannot claim that, in paragraph 48 of the judgment under appeal, the Court of First Instance failed to have regard to the principle whose infringement Chemi-Con was pleading before it. |
56. Moreover, the Court has already held that a period of leave guaranteed by Community law cannot affect the right to take another period of leave guaranteed by that law ( Commission v Luxembourg , paragraph 33, and Case C-124/05 Federatie Nederlandse Vakbeweging [2006] ECR I‑3423, paragraph 24). | 24. Without it being necessary to consider that question in detail, it must be noted that the Court has already held that a period of leave guaranteed by Community law cannot affect the right to take another period of leave guaranteed by that law (Case C-519/03 Commission v Luxembourg [2005] ECR I-3067, paragraph 33). Thus, in the event of the aggregation of several periods of leave guaranteed by Community law at the end of a year, the carrying forward of annual leave or part thereof to the following year may be inevitable. | 64. As regards more specifically Article 5(1) of the Sixth Directive, by virtue of which the transfer of the right to dispose of tangible property as owner is regarded as a supply of goods, it follows from the case-law of the Court that ‘supply of goods’ does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were the owner of the property. The purpose of the directive might be jeopardised if the requirements for there to be a supply of goods, which is one of the three taxable transactions, were to differ according to the civil law of the Member State concerned (see, to that effect, Case C‑320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I‑285, paragraphs 7 and 8; Case C‑291/92 Armbrecht [1995] ECR I‑2775, paragraphs 13 and 14; and Case C‑185/01 Auto Lease Holland [2003] ECR I‑1317, paragraphs 32 and 33). |
33 However, to determine whether the conditions for the transfer of an economic entity are satisfied, it is also necessary to consider all the factual circumstances characterising the transaction in question, including in particular the type of undertaking or business involved, whether or not its tangible assets such as buildings and movable property are transferred, the value of its intangible assets at the time of the transfer, whether or not the core of its employees are taken over by the new employer, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities were suspended. These are, however, merely single factors in the overall assessment which must be made, and cannot therefore be considered in isolation (see, in particular, Spijkers, paragraphs 13, and Süzen, paragraph 14). | 14 IT IS FOR THE NATIONAL COURT TO MAKE THE NECESSARY FACTUAL APPRAISAL , IN THE LIGHT OF THE CRITERIA FOR INTERPRETATION SET OUT ABOVE , IN ORDER TO ESTABLISH WHETHER OR NOT THERE IS A TRANSFER IN THE SENSE INDICATED ABOVE .
| 154. With regard, finally, to the validity of the Directive in the light of Article 20 of the TRIPs Agreement, the Court has consistently held that the lawfulness of a Community measure cannot be assessed in the light of instruments of international law which, like the WTO Agreement and the TRIPs Agreement which is part of it, are not in principle, having regard to their nature and structure, among the rules in the light of which the Court is to review the lawfulness of measures adopted by the Community institutions (Case C-149/96 Portugal v Council [1999] ECR I-8395, paragraph 47; Case C-377/98 Netherlands v Parliament and Council , cited above, paragraph 52; Case C-301/97 Netherlands v Council [2001] ECR I-8853, paragraph 53, and Joined Cases C-27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569, paragraph 93). |
25 However, as the Court emphasized in its judgment in Case C-275/91 Iacobelli v INAMI [1993] ECR I-523, paragraph 13, the provisions of Article 36 of Regulation No 574/72 are of a procedural nature. They were laid down with the aim of simplifying administration in order to exempt migrant workers having rights to assert in different Member States from the requirement to lodge with the institutions in each of those States an application for the grant of the benefits which they may claim (see, to that effect, Case 108/75 Balsamo v INAMI [1976] ECR 375, paragraph 9, and Case 41/77 Warry [1977] ECR 2085, paragraph 28). The obligation imposed on migrant workers by the first sentence of Article 36(1) to send their claims for benefits to the institution closest to them ° that of their place of residence ° reflects such concern for administrative simplification. | 9 THAT PROVISION WAS LAID DOWN WITH THE AIM OF SIMPLIFYING ADMINISTRATION IN ORDER TO EXEMPT MIGRANT WORKERS , WHO HAVE RIGHTS TO ASSERT IN DIFFERENT MEMBER STATES , FROM THE REQUIREMENT TO LODGE WITH THE INSTITUTIONS IN EACH OF THESE STATES AN APPLICATION FOR THE GRANT OF THE BENEFITS WHICH THEY MAY CLAIM .
| 18 The breeding and reproduction of protected species in captivity may constitute such a solution if they prove to be possible (Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 41). |
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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). | 56. As for the context of Article H(2) of Annex II to Regulation No 1164/94, as amended, it must be stated that the Cohesion Fund was created in accordance with the second paragraph of Article 130d EC by Regulation No 1164/94 in its original version. | 31. In that regard, it should be borne in mind that, in the procedure laid down 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, inter alia, Case C‑45/06 Campina [2007] ECR I‑2089, paragraph 30, and Case C‑243/09 Fuß [2010] ECR I‑9849, paragraph 39). |
56
It is settled case-law that the general principle which guarantees any litigant the right to plead, in an action brought against a national measure which adversely affects him, that the EU act forming the basis for that measure is invalid does not preclude such a right from being subject to the condition that the person concerned did not have the right to request the EU judicature directly to annul it, under Article 263 TFEU. However, it is only if it can be held that a person would undoubtedly have been entitled to request the annulment of the act in question that he is prevented from pleading its invalidity before the national court having jurisdiction (see, to this effect, judgments in TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 23; Valimar, C‑374/12, EU:C:2014:2231, paragraphs 28 and 29; and TMK Europe, C‑143/14, EU:C:2015:236, paragraph 18). | 29. Nevertheless, it follows from that case-law that the admissibility of such a direct action must be beyond any doubt (see judgment in Bolton Alimentari , EU:C:2011:87, paragraph 23). In the present case, the information submitted with the request for a preliminary ruling and that which the Bulgarian Government and Valimar provided in their oral submissions does not allow the Court to conclude that such a direct action would have been admissible. | 37. Accordingly, although the alleged infringement of the presumption of innocence in the determination of the duration of the infringement may have an impact on the findings of fact made by the General Court, it is, contrary to what is maintained by the Commission, a point of law amenable, as such, to review by the Court of Justice. The same principle applies with regard to the complaint concerning the grounds of the judgment under appeal (see, inter alia, Case C‑401/96 P Somaco v Commission [1998] ECR I‑2587, paragraph 53, and Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 77). |
28. Concerning the second and third objectives invoked by the Belgian Government and based, respectively, on the social protection of employees and the facilitation of the related administrative controls, the Court has already acknowledged that those objectives are among the overriding reasons in the general interest capable of justifying such restrictions on the exercise of fundamental freedoms recognised in the Treaty (see, to that effect, Case C‑490/04 Commission v Germany [2007] ECR I‑6095, paragraphs 70 and 71, and Case C‑515/08 dos Santos Palhota and Others [2010] ECR I‑9133, paragraph 47 and the case-law cited). | 47. In that connection, the Court has repeatedly held that overriding reasons relating to the public interest capable of justifying a restriction on the freedom to provide services include the protection of workers (see, in particular, Arblade and Others , paragraph 36, Finalarte and Others , paragraph 33, and Case C-445/03 Commission v Luxembourg [2004] ECR I-10191, paragraph 29). | 57 However, the Community's interest in recovering aid which has been received in breach of the conditions under which it was granted must be taken fully into consideration in assessing the interests in question (Deutsche Milchkontor, paragraph 32, Oelmühle and Schmidt Söhne, paragraph 24 and Flemmer and Others, paragraph 61). |
40
Therefore, the principle of equal pay between men and women laid down in Article 119 of the EC Treaty (subsequently Article 141 EC) and set out in detail in Directive 75/117 neither requires that women should continue to receive full pay during their maternity leave nor lays down specific criteria for determining the amount of benefit payable to them during that period, provided that the amount is not set so low as to jeopardise the purpose of maternity leave. However, to the extent that it is calculated on the basis of pay received by a woman before the commencement of maternity leave, the amount of benefit must include pay rises awarded between the beginning of the period covered by the reference pay and the end of maternity leave, as from the date on which they take effect (judgment of 13 February 1996 in Gillespie and Others, C‑342/93, EU:C:1996:46, paragraph 25). | 25 In the light of the foregoing considerations, the answer to the four questions referred by the Court of Appeal in Northern Ireland must be that the principle of equal pay laid down in Article 119 of the Treaty and set out in detail in Directive 75/117 neither requires that women should continue to receive full pay during maternity leave, nor lays down specific criteria for determining the amount of benefit payable to them during that period, provided that the amount is not set so low as to jeopardize the purpose of maternity leave. However, to the extent that it is calculated on the basis of pay received by a woman before the commencement of maternity leave, the amount of benefit must include pay rises awarded between the beginning of the period covered by reference pay and the end of maternity leave, as from the date on which they take effect. | 57. In that regard, it must be pointed out, as is apparent from paragraph 34 above, that the principle of fiscal neutrality, which is the reflection in the field of VAT of the principle of equal treatment, precludes, inter alia, for taxable persons effecting the same transactions or similar economic transactions, different treatment with regard to the method of rounding applied when VAT is calculated (see to that effect, also, Case C‑162/07 Ampliscientifica and Amplifin [2008] ECR I‑0000, paragraph 25, and Case C‑132/06 Commission v Italy [2008] ECR I‑0000, paragraph 39). |
40. The Court has held in particular that among the circumstances that may constitute evidence that the holder has discarded a substance or object or intends or is required to discard it, within the meaning of Article 1(a) of Directive 75/442, is the fact that a substance is a production or consumption residue, that is to say, a product which was not itself sought (see, inter alia, Case C‑194/05 Commission v Italy , paragraph 34 and the case-law cited, and Commune de Mesquer , paragraph 41). | 41. In this respect, certain circumstances may constitute evidence that a substance or object has been discarded or of an intention or requirement to discard it within the meaning of Article 1(a) of Directive 75/442. That will be the case in particular where the substance used is a production residue, that is to say, a product not sought as such ( ARCO Chemie Nederland , paragraphs 83 and 84). The Court has thus said that leftover stone from extraction processes of a granite quarry which is not the product primarily sought by the operator in principle constitutes waste ( Palin Granit , paragraphs 32 and 33). | 135. First of all, it should be recalled that an agreement falls within the prohibition laid down in Article 101(1) TFEU when it has as its object or effect the prevention, restriction or distortion of competition. The fact that the two criteria are alternatives means that it is appropriate, first and foremost, to determine whether just one of them is satisfied, here the criterion concerning the object of the agreement. It is only secondarily, when the analysis of the content of the agreement does not reveal a sufficient degree of impairment of competition, that the consequences of the agreement should be considered, and for it to be open to prohibition it is necessary to find that those factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (see, to this effect, Case C‑8/08 T‑Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 28, and Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission and Others [2009] ECR I‑9291, paragraph 55). |
37. An argument based on the principle of territoriality, as recognised by the Court of Justice in Case C-250/95 Futura Participations and Singer [1997] ECR I-2471, paragraph 22, has also been relied upon by the Netherlands Government in order to justify the difference in tax treatment under the 1969 Law. According to the government, the costs in connection with activities abroad, including financing costs and costs in relation to holdings, should be set off against the profits generated by those activities and the deduction of those costs is linked solely to the making or non-making of profits outside the Netherlands. According to the Netherlands Government, there is therefore no discrimination, the subsidiaries which do make profits taxable in the Netherlands and those which do not being in a situation which is not comparable. | 22 Such a system, which is in conformity with the fiscal principle of territoriality, cannot be regarded as entailing any discrimination, overt or covert, prohibited by the Treaty.
The second condition: keeping of accounts | 25
It follows that EU nationals working for an EU institution or body in a Member State other than their Member State of origin, such as the appellants in the main proceedings, may not be refused the rights and social advantages which Article 45 TFEU affords them (see judgments of 15 March 1989, Echternach and Moritz, 389/87 and 390/87, EU:C:1989:130, paragraph 12, and of 16 February 2006, Rockler, C‑137/04, EU:C:2006:106, paragraph 16 and the case-law cited). |
33. Only in exceptional circumstances may the Court 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 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, and Stichting Zuid-Hollandse Milieufederatie , paragraph 30). | 61 That is why the Court has held that it has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or its purpose (see, inter alia, Case C-143/94 Furlanis v ANAS [1995] ECR I-0000, paragraph 12) or where the problem is hypothetical and 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, Meilicke, cited above, paragraph 32). | 30
Further, in accordance with settled case-law, provisions of national law which merely lay down conditions governing the establishment or provision of services by undertakings, such as provisions making the exercise of a business activity subject to prior authorisation, do not constitute technical regulations within the meaning of Article 1(11) of Directive 98/34 (see, to that effect, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 76 and the case-law cited). |
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The same is true of the encouragement of employment and recruitment which, being designed in particular to reduce unemployment, constitutes a legitimate aim of social policy (see, to that effect, judgments of 11 January 2007, ITC , C‑208/05, EU:C:2007:16, paragraphs 38 and 39; of 18 January 2007, Confédération générale du travail and Others , C‑385/05, EU:C:2007:37, paragraph 28; and of 13 December 2012, Caves Krier Frères , C‑379/11, EU:C:2012:798, paragraph 51). | 28. As a preliminary point, it is clear from the Court’s case-law that the encouragement of recruitment constitutes a legitimate aim of social policy and that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion (see, inter alia, Case C‑167/97 Seymour-Smith and Perez [1999] ECR I‑623, paragraphs 71 and 74, and Case C‑187/00 Kutz-Bauer [2003] ECR I‑2741, paragraphs 55 and 56). | 13 Next, as stated in the judgment of the Court today in Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others v Paranova, paragraph 40, Article 7 of the directive, like Article 36 of the Treaty, is intended to reconcile the fundamental interest in protecting trade mark rights with the fundamental interest in the free movement of goods within the common market, so that those two provisions, which pursue the same result, must be interpreted in the same way. |
21. According to the general rule stated in Article 11A(1)(a) of the Sixth Directive, the taxable amount for the supply of goods or services for consideration is the consideration actually received for them by the taxable person. That consideration is thus the subjective value, that is to say, the value actually received, and not a value estimated according to objective criteria (see Case 154/80 Coöperatieve Aardappelenbewaarplaats [1981] ECR 445, paragraph 13; Case 230/87 Naturally Yours &
x20; Cosmetics [1988] ECR 6365, paragraph 16; Case C‑126/88 Boots Company [1990] ECR I‑1235, paragraph 19; Case C‑258/95 Fillibeck [1997] ECR I‑5577, paragraph 13; and Case C‑404/99 Commission v France [2001] ECR I‑2667, paragraph 38). Moreover, that consideration must be capable of being expressed in money ( Coöperatieve Aardappelenbewaarplaats , paragraph 13; Naturally Yours Cosmetics , paragraph 16; and Fillibeck , paragraph 14). | 14 Furthermore, according to the same case-law, that consideration must be capable of being expressed in money (judgments in Coöperatieve Aardappelenbewaarplaats, paragraph 13; Naturally Yours Cosmetics, paragraph 16, and Argos Distributors, paragraph 17). | 20 In answering that question it should be observed that in its judgment in McDermott and Cotter the Court held that until such time as the Member State had adopted the necessary implementing measures women were entitled to have the same rules applied to them as were applied to men in the same situation, since in such circumstances those rules remained the only valid point of reference. |
64. As regards the other aspects of the first question referred, 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 (Case C-348/89 Mecanarte [1991] ECR I-3277, paragraph 44, and Case C-173/09 Elchinov [2010] ECR I-8889, paragraph 26). | 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). | 37. With reference to the single market and in order to permit the achievement of its objectives, Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (see Safir , paragraph 23, Commission v Denmark , paragraph 38, and the case‑law cited). |
28 Where those conditions are satisfied, Article 6(1) of Decision No 1/80, which grants Turkish workers the right, after specified periods of legal employment, to continue working for the same employer or in the same occupation for an employer of his choice, or to enjoy free access to any paid employment of his choice, necessarily implies the existence of a right of residence for the person concerned, since otherwise the right of access to the labour force and the right to work as an employed person would be deprived of all effect (see, to that effect, the judgments in Sevince, cited above, paragraph 29, and Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, paragraphs 29 and 30). | 30 The same is also true as regards the first indent of Article 6(1) of Decision No 1/80, since without a right of residence the grant to the Turkish worker, after one year' s legal employment, of the right to renewal of his permit to work for the same employer would likewise be deprived of any effect. | 66. Lastly, it must be noted that the criteria on the basis of which ‘must-carry’ status is awarded must be non-discriminatory. In particular, the award of that status must not, either in law or in fact, be subject to a requirement of establishment in the national territory ( United Pan-Europe Communications Belgium and Others , paragraph 48). |
20. Moreover, contrary to the Irish Government’s contention, a young child can take advantage of the rights of free movement and residence guaranteed by Community law. The capacity of a national of a Member State to be the holder of rights guaranteed by the Treaty and by secondary law on the free movement of persons cannot be made conditional upon the attainment by the person concerned of the age prescribed for the acquisition of legal capacity to exercise those rights personally (to that effect, see, in particular, in the context of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, Series I, 1968 (II), p. 475), Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 21, and Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraphs 52 to 63, and, in relation to Article 17 EC, Garcia Avello , paragraph 21). Moreover, as the Advocate General made clear in points 47 to 52 of his Opinion, it does not follow either from the terms of, or from the aims pursued by, Articles 18 EC and 49 EC and Directives 73/148 and 90/364 that the enjoyment of the rights with which those provisions are concerned should be made conditional upon the attainment of a minimum age.
Directive 73/148 | 52 In circumstances such as those in the Baumbast case, to prevent a child of a citizen of the Union from continuing his education in the host Member State by refusing him permission to remain might dissuade that citizen from exercising the rights to freedom of movement laid down in Article 39 EC and would therefore create an obstacle to the effective exercise of the freedom thus guaranteed by the EC Treaty. | 46. In that regard, according to the settled case-law of the Court, the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is appropriate and necessary in order to achieve those objectives (see, to that effect, Case C‑343/09 Afton Chemical EU:C:2010:419, paragraph 45; Volker und Markus Schecke and Eifert EU:C:2010:662, paragraph 74; Cases C‑581/10 and C‑629/10 Nelson and Others EU:C:2012:657, paragraph 71; Case C‑283/11 Sky Österreich EU:C:2013:28, paragraph 50; and Case C‑101/12 Schaible EU:C:2013:661, paragraph 29). |
29. Furthermore, the Court has already held that where a Member State has a system for preventing or mitigating a series of charges to tax or economic double taxation for dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way (see, to that effect, Case C-315/02 Lenz [2004] ECR I-7063, paragraphs 27 to 49; Manninen , paragraphs 29 to 55, and Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 55). | 34. It is true that, in relation to such legislation, the situation of persons fully taxable in Finland might differ according to the place where they invested their capital. That would be the case in particular where the tax legislation of the Member State in which the investments were made already eliminated the risk of double taxation of company profits distributed in the form of dividends, by, for example, subjecting to corporation tax only such profits by the company concerned as were not distributed. | 11 In order to reply to the first question, it should be noted at the outset that Article 141(1) EC lays down the principle that equal work or work of equal value must be remunerated in the same way, whether it is performed by a man or a woman. |
20. As the Court observed at paragraph 49 in Commission v France , Article 14(3) of Regulation No 659/1999 reflects the requirements of the principle of effectiveness laid down previously by case‑law (see Case 94/87 Commission v Germany [1989] ECR 175, paragraph 12; Case C‑24/95 Alcan Deutschland [1997] ECR I-1591, paragraph 24; and Case C‑209/00 Commission v Germany [2002] ECR I‑11695, paragraphs 32 to 34); that case‑law is therefore relevant to the application of that provision. | 24 In principle the recovery of aid must take place in accordance with the relevant procedural provisions of national law, subject however to the proviso that those provisions are to be applied in such a way that the recovery required by Community law is not rendered practically impossible (Case C-142/87 Belgium v Commission [1990] ECR I-959, paragraph 61; Case C-5/89 Commission v Germany [1990] ECR I-3437, paragraph 12; the same applies as regards recovery of Community aid, see Deutsche Milchkontor, cited above). In particular, the interests of the Community must be taken fully into consideration in the application of a provision which requires the various interests involved to be weighed up before a defective administrative measure is withdrawn (Case 94/87 Commission v Germany, cited above, paragraph 12). | 62 As regards the complaint that the Court of First Instance failed to check whether the Commission had followed its usual administrative practice and had had regard for the rights of the defence, suffice it to observe that that complaint was not raised at first instance. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a dispute of wider ambit than that which came before the Court of First Instance. In an appeal the Court's jurisdiction is confined to review of the findings of law on the pleas argued before the Court of First Instance (see, inter alia, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, and Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 62). |
46 That ruling took account of the fact that it is a characteristic of this form of pay that there is a time-lag between the accrual of entitlement to the pension, which occurs gradually throughout the employee' s working life, and its actual payment, which is deferred until a particular age (paragraph 17). | 44 In those circumstances, overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many contracted-out pension schemes . It is appropriate, however, to provide for an exception in favour of individuals who have taken action in good time in order to safeguard their rights . Finally, it must be pointed out that no restriction on the effects of the aforesaid interpretation can be permitted as regards the acquisition of entitlement to a pension as from the date of this judgment . | 36. Furthermore, the Court has held that the decisive criterion for the customs classification of goods under the common customs tariff must be sought in the objective characteristics and properties of the products at the time of their presentation for customs clearance (Case 175/82 Dinter [1983] ECR 969, paragraph 10, and Case C‑33/92 Gausepohl‑Fleisch [1993] ECR I‑3047, paragraph 9). The objective characteristics and properties of products must be capable of being assessed at the time of customs clearance (see, to that effect, Case C‑233/88 van de Kolk [1990] ECR I‑265, paragraph 12; Case C‑38/95 Foods Import [1996] ECR I‑6543, paragraph 17; and Case C‑14/05 Anagram International [2006] ECR I‑6763, paragraph 26). |
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Those principles and that obligation require, in particular, that the subject matter and the award criteria for the contract concerned are clearly determined from the beginning of the award procedure for that contract and that 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 bids submitted satisfy the criteria applying to the contract in question (see, to that effect, judgments of 10 May 2012, Commission v Netherlands, C‑368/10, EU:C:2012:284, paragraphs 56, 88 and 109; of 6 November 2014, Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 44; and of 14 July 2016, TNS Dimarso, C‑6/15, EU:C:2016:555, paragraph 23). The obligation of transparency also means that the subject matter and the award criteria must be adequately publicised by the contracting authorities (see, to that effect, judgment of 24 January 2008, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraph 40). | 109. The principle of transparency 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 notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract (see, inter alia, Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801). | 26. In this case, as in Francovich and Others , those questions of interpretation have been referred to the Court by national courts pursuant to Article 177 of the Treaty. |
38. It is apparent from the case-law that Community competition law refers to the activities of undertakings (Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 59) and that the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (see, in particular, Joined Cases C‑189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 112; Case C-222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I-289, paragraph 107; and Case C-205/03 P FENIN v Commission [2006] ECR I-6295, paragraph 25). | 112. In that regard, it should be observed that, according to settled case-law, in the field of competition law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, in particular, Case C-309/99 Wouters and Others [2002] ECR I-1577, paragraph 46 and the case-law cited). | 22. Contrary to what is maintained by ASPLA, such an appraisal of the evidence is compatible with a well-established line of authority which has accepted that the existence of unlawful conduct may be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission EU:C:2004:6, paragraph 57, and Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission EU:C:2007:52, paragraph 51). |
145. It went on to note that natural or legal persons may not rely on an alleged breach of that rule, since it is not intended to ensure protection for individuals (see, to that effect, Case C‑69/89 Nakajima v Council [1991] ECR I‑2069, paragraphs 49 and 50). | 49 With regard to this point, it should be noted that the purpose of the rules of procedure of a Community institution is to organize the internal functioning of its services in the interests of good
administration. The rules laid down, particularly with regard to the organization of deliberations and the adoption of decisions, have therefore as their essential purpose to ensure the smooth conduct of the procedure while fully respecting the prerogatives of each of the members of the institution. | 48
The direct application of a regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law, unless the regulation in question leaves it to the Member States themselves to adopt the necessary legislative, regulatory, administrative and financial measures to ensure the effective application of the provisions of that regulation (judgment of 14 June 2012, C‑606/10, Association nationale d’assistance aux frontières pour les étrangers, C‑606/10, EU:C:2012:384, paragraph 72). |
23 In that respect such provisions constitute measures having an effect equivalent to quantitative restrictions on imports within the meaning of Article 30 of the Treaty (Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5). | 5 ALL TRADING RULES ENACTED BY MEMBER STATES WHICH ARE CAPABLE OF HINDERING, DIRECTLY OR INDIRECTLY, ACTUALLY OR POTENTIALLY, INTRA-COMMUNITY TRADE ARE TO BE CONSIDERED AS MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS . | 63 It is clear from Article 168a of the Treaty and Article 51 of the EC Statute of the Court of Justice that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts (see, in particular, Deere v Commission, cited above, paragraph 21, and New Holland Ford v Commission, cited above, paragraph 25). |
19. As regards that weaker position, Article 6(1) of Directive 93/13 provides that unfair terms are not binding on the consumer. That is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (judgment in Sánchez Morcillo and Abril García , C‑169/14, EU:C:2014:2099, paragraph 23 and the case-law cited). | 23. As regards that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on the consumer. That is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (judgment in Banco Español de Crédito , C‑618/10, EU:C:2012:349, paragraph 40 and case-law cited). | 14. In that context, the Directive draws a distinction between, on the one hand, products held for commercial purposes and, on the other hand, products held for private purposes ( Joustra , paragraph 28). |
22. It should also be remembered that the Conditions of Employment, like the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), were adopted by means of a Council regulation, Regulation No 259/68, which, by virtue of the second paragraph of Article 249 EC, has general application, is binding in its entirety and is directly applicable in all Member States. It follows that, in addition to having effects within the EU administration, the Conditions of Employment are also binding on Member States in so far as their cooperation is necessary in order to give effect to those conditions (judgments in Commission v Belgium , EU:C:1981:237, paragraphs 7 and 8; Commission v Belgium , 186/85, EU:C:1987:208, paragraph 21; and Kristiansen , EU:C:2003:652, paragraph 32). | 21 IT MUST BE BORNE IN MIND, FIRST, THAT THE STAFF REGULATIONS AND THE CONDITIONS OF EMPLOYMENT WERE ADOPTED BY MEANS OF COUNCIL REGULATION ( EEC, EURATOM, ECSC ) NO 259/68 OF 29 FEBRUARY 1968 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 30 ) AND THAT, BY VIRTUE OF THE SECOND PARAGRAPH OF ARTICLE 189 OF THE EEC TREATY, THAT REGULATION HAS GENERAL APPLICATION, IS BINDING IN ITS ENTIRETY AND IS DIRECTLY APPLICABLE IN ALL MEMBER STATES . IT FOLLOWS THAT, AS THE COURT POINTED OUT IN PARTICULAR IN ITS JUDGMENT OF 20 OCTOBER 1981 IN CASE 137/80 COMMISSION V BELGIUM (( 1981 )) ECR 2393, IN ADDITION TO HAVING EFFECTS WITHIN THE COMMUNITY ADMINISTRATION, THE STAFF REGULATIONS AND THE CONDITIONS OF EMPLOYMENT ARE ALSO BINDING ON MEMBER STATES IN SO FAR AS THEIR COOPERATION IS NECESSARY IN ORDER TO GIVE EFFECT TO THOSE MEASURES . ACCORDINGLY, IT IS NECESSARY TO CONSIDER WHETHER ARTICLE 67*(2 ) OF THE STAFF REGULATIONS IMPOSES BINDING OBLIGATIONS ON THE MEMBER STATES . | 52. In this respect, in his observations to the Court, Mr Güzeli referred to the interpretation of an analogous provision in the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 and concluded on behalf of the Community by Council Regulation (EEC) No 2211/78 of 26 September 1978 (OJ 1978 L 264, p. 1) which was given by the Court in Case C‑416/96 Eddline El-Yassini [1999] ECR I‑1209, paragraphs 62 to 64. According to that interpretation, although a Member State is not in principle prohibited from refusing to extend the residence permit of a Moroccan national whom it has previously authorised to enter its territory and to work there where the initial reason for the grant of a right of residence no longer exists at the time that his residence permit expires, the situation would be different if the host Member State had granted the Moroccan migrant worker specific rights in relation to employment which were more extensive than the rights of residence conferred on him by that State. |
28
The transaction value must reflect the real economic value of imported goods and take into account all the elements of those goods that have economic value (judgments of 12 December 2013, Christodoulou and Others, C‑116/12, EU:C:2013:825, paragraph 40, and of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 26). | 26
The transaction value must reflect the real economic value of imported goods and take into account all the elements of those goods that have economic value (judgment of 12 December 2013 in Christodoulou and Others, C‑116/12, EU:C:2013:825, paragraph 40 and the case-law cited). | In that respect, the 2002 Leniency Notice provides, first, in point 32, that normally disclosure, at any time, of documents received in the context of that notice would undermine the protection of the purpose of inspections and investigations within the meaning of Article 4(2) of Regulation No 1049/2001 and, secondly, in point 33, that any written statement made vis-à-vis the Commission in relation to that notice, forms part of its file and may not be disclosed or used for any other purpose than the enforcement of Article 101 TFEU (judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 94). |
18. As stated by the Court in Joined Cases C-236/08 to C-238/08 Google France and Google [2010] ECR I-0000, paragraphs 51 and 52, the sign selected by the advertiser as keyword in the context of an internet referencing service is the means used to trigger that ad display and is therefore use ‘in the course of trade’ within the meaning of Article 5(1) of Directive 89/104. | 52. From the advertiser’s point of view, the selection of a keyword identical with a trade mark has the object and effect of displaying an advertising link to the site on which he offers his goods or services for sale. Since the sign selected as a keyword is the means used to trigger that ad display, it cannot be disputed that the advertiser indeed uses it in the context of commercial activity and not as a private matter. | 31 It should be noted at the outset that the provisions of Title II of the Regulation, which include Article 13, constitute, as the Court has consistently held, a complete and uniform system of conflict rules the aim of which is to ensure that workers moving within the Community are subject to the social security scheme of only one Member State, in order to prevent the national legislation of more than one Member State from being applicable and to avoid the attendant complications of such a situation (see, in particular, Case C-202/97 FTS [2000] ECR I-883, paragraph 20, and Case C-404/98 Plum [2000] ECR I-9379, paragraph 18). |
46. So far as concerns, third, the question whether the interests of good industrial relations may be taken into account to justify objectively a prima facie case of indirect gender discrimination in pay, it must be noted that possible objective justifications must correspond to a real need of the employer, in this instance, the Minister (see, to that effect, Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, paragraphs 36 and 37, and Brunnhofer , paragraph 67). | 37 IL Y A LIEU , DES LORS , DE REPONDRE A LA QUESTION 2 , SOUS A ), DE LA JURIDICTION NATIONALE EN CE SENS QUE , AUX TERMES DE L ' ARTICLE 119 , UNE SOCIETE DE GRANDS MAGASINS PEUT JUSTIFIER L ' ADOPTION D ' UNE POLITIQUE SALARIALE COMPORTANT L ' EXCLUSION DES TRAVAILLEURS A TEMPS PARTIEL DU REGIME DE PENSIONS D ' ENTREPRISE , INDEPENDAMMENT DE LEUR SEXE , EN FAISANT VALOIR QU ' ELLE VISE A EMPLOYER LE MOINS POSSIBLE DE TRAVAILLEURS DE CE TYPE , LORSQU ' IL EST CONSTATE QUE LES MOYENS CHOISIS POUR ATTEINDRE CET OBJECTIF REPONDENT A UN VERITABLE BESOIN DE L ' ENTREPRISE , SONT APTES A ATTEINDRE L ' OBJECTIF EN QUESTION ET SONT NECESSAIRES A CET EFFET .
SUR LA QUESTION 2 , SOUS B ) | 36
In that respect, it must be recalled that, according to the case-law of the Court, in most cases the existence of a concerted practice or an agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see, to that effect, judgment in Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 26 and the case-law cited). |
12 It follows that a system of taxation can be considered compatible with Article 95 of the Treaty only if it is so arranged as to exclude any possibility of imported products being taxed more heavily than domestic products (see, in particular, Case C-152/89 Commission v Luxembourg [1991] ECR I-3141, paragraph 21). | 21 It follows that the system of taxation at issue can be considered to be compatible with the first paragraph of Article 95 only if it is proved to be so arranged as to exclude any possibility of imported beer being taxed more heavily than domestic beer. | 51
Second, the provisions featuring under Section 5 of Chapter II of the Brussels I Regulation are not only specific but also exhaustive (see, to that effect, judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 44 and the case-law cited). |
49. Notwithstanding the discretion which Member States have pursuant to Article 5 of that directive, legislation which does not incorporate the principle of recognition of documents issued by other Member States which certify that a vehicle has passed a roadworthiness test, as laid down in Article 3(2) of that directive, cannot be validated on the basis of that directive and must for that reason be assessed in the light of Article 34 TFEU (see, to that effect, Case C-297/05 Commission v Netherlands , paragraphs 67 to 71, and Case C-170/07 Commission v Poland , paragraphs 36 to 42). | 42. Il convient, dès lors, d’apprécier la conformité du contrôle technique litigieux au regard de l’article 28 CE, en vérifiant si l’obligation de soumettre les véhicules d’occasion précédemment immatriculés dans d’autres États membres à un contrôle technique préalablement à leur immatriculation en Pologne constitue une mesure d’effet équivalent à une restriction quantitative à l’importation, interdite par cette disposition. | 19
In that regard, it is necessary to state at the outset that, in accordance with the settled case-law of the Court, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. Consequently, where questions submitted concern the interpretation of EU law, the Court is bound, in principle, to give a ruling (judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 29 and the case-law cited). |
46. According to case-law, that right of access to education implies that the child of a migrant worker or former migrant worker has an independent right of residence when that child wishes to continue his or her education in the host Member State, and that the parent who is the child’s primary carer has a corresponding right of residence (see Case C-480/08 Teixeira [2010] ECR I-1107, paragraphs 36 and 53). | 53. Article 12 of Regulation No 1612/68 must therefore be applied independently of the provisions of European Union law which expressly govern the conditions of exercise of the right to reside in another Member State. | 49. The unlimited jurisdiction conferred on the Courts of the European Union by Article 91(1) of the Staff Regulations entrusts the Courts of the Union with the task of providing a complete solution to the disputes brought before it ( Weißenfels v Parliament , paragraph 67, and Case C‑197/09 RX‑II M v EMEA [2009] ECR I‑0000, paragraph 56). |
25 It is important to note that, as the Court has consistently held (see the judgments in Case 149/77 Defrenne v Sabena III [1978] ECR 1365, paragraph 19, and Case 126/86 Giménez Zaera v Instituto Nacional de la Seguridad Social [1987] ECR 3697, paragraph 13), Article 117 of the EEC Treaty is essentially in the nature of a programme. It relates only to social objectives the attainment of which must be the result of Community action, close cooperation between the Member States and the operation of the Common Market. | 19IN CONTRAST TO THE PROVISIONS OF ARTICLES 117 AND 118 , WHICH ARE ESSENTIALLY IN THE NATURE OF A PROGRAMME , ARTICLE 119 , WHICH IS LIMITED TO THE QUESTION OF PAY DISCRIMINATION BETWEEN MEN AND WOMEN WORKERS , CONSTITUTES A SPECIAL RULE , WHOSE APPLICATION IS LINKED TO PRECISE FACTORS .
| 22. On this point, it must be observed that, contrary to the submissions of the German and Netherlands Governments, the situation of a national of a Member State who, like Mr Schempp, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation (see, to that effect, Case C‑200/02 Zhu and Chen [2004] ECR I‑0000, paragraph 19). |
23. It must be noted at the outset that the cessation of the validity of a parallel import licence following the withdrawal of the marketing authorisation of reference constitutes a restriction on the free movement of goods contrary to Article 28 EC (Case C-172/00 Ferring [2002] ECR I-6891, paragraph 33). | 33 It is common ground that the cessation of the validity of a parallel import licence following the withdrawal of the marketing authorisation of reference constitutes a restriction on the free movement of goods contrary to Article 28 EC, unless it is justified by reasons relating to the protection of public health, in accordance with the provisions of Article 30 EC. | 27
Lastly, it is important to point out that in setting out their NAPs, the Member States have a certain margin for manoeuvre (see, to that effect, judgment of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraphs 51 to 53). At the end of the procedure under Article 9 of Directive 2003/87, an NAP enjoys a presumption of legality, since, after the three-month time limit laid down in Article 9(3) has expired, it is regarded as definitive where the Commission makes no observations, so that the Member State concerned may adopt it (judgment of 3 October 2013, Commission v Latvia, C‑267/11 P, EU:C:2013:624, paragraph 46). |
20. In that regard, according to the Court’s case-law, the need for precision with regard to the factual and legislative context applies in particular in the area of competition, which is characterised by complex factual and legal situations (see Case C-176/96 Lehtonen and Castors Braine [2000] ECR I‑2681, paragraph 22; Viacom Outdoor , paragraph 23; and Case C-238/05 Asnef-Equifax and Administración del Estado [2006] ECR I‑11125, paragraph 23). | 23. Finally, as regards the extent of the indications in the decision for referral relating to a possible effect on trade between Member States, it must be borne in mind that the need for precision with regard to the factual and legislative context applies in particular in the area of competition, which is characterised by complex factual and legal situations (see Case C-176/96 Lehtonen and Castors Braine [2000] ECR I‑2681, paragraph 22, and also the order in Case C-190/02 Viacom [2002] ECR I‑8287, paragraph 22). | 43. According to the Court’s case-law, contracting authorities which have issued an invitation to tender for the supply of medical devices bearing the CE marking cannot reject, on grounds of protection of public health, the tender in respect of such products, directly and without following the safeguard procedure provided for in Articles 8 and 18 of Directive 93/42. If a contracting authority considers that the tender in respect of medical devices bearing the CE marking may compromise public health, it is required to inform the competent authority with a view to setting that safeguard procedure in motion (Case C-6/05 Medipac-Kazantzidis [2007] ECR I-4557, paragraph 55). |
30. As regards the definition of the respective scope of the principles of freedom to provide services and freedom of establishment, it is necessary to establish whether or not the economic operator is established in the Member State in which it offers the services in question (see, to that effect, Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 22). Where that operator is established in the Member State in which it offers the service, it falls within the scope of the principle of freedom of establishment, as defined in Article 43 EC. On the other hand, where the economic operator is not established in the Member State of destination, it is a transfrontier service provider covered by the principle of freedom to provide services laid down in Article 49 EC (see Case C‑171/02 Commission v Portugal [2004] ECR I‑5645, paragraph 24). | 24. As regards the definition of the respective scopes of the principles of freedom to provide services and freedom of establishment, it should be noted that the key element is whether or not the economic operator is established in the Member State in which it offers the services in question (see Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 22). Where it is established (in a principal or secondary establishment) in the Member State in which it offers the service (Member State of destination or host Member State), it falls within the scope of the principle of freedom of establishment, as defined in Article 43 EC. On the other hand, where the economic operator is not established in that Member State of destination, it is a transfrontier service provider covered by the principle of freedom to provide services laid down in Article 49 EC. | 63 In that regard, it is to be remembered that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, Crispoltoni and Others, cited above, paragraph 41, and Case C-157/96 The Queen v MAFF and Another, ex parte National Farmers' Union and Others [1998] ECR I-2211, paragraph 60). |
135. The Court has consistently held that, although it is for the Commission to prove that Community rules have been infringed, once it has established such an infringement it is for the Member State to demonstrate, if appropriate, that the Commission made an error as to the financial consequences to be attached to that infringement (Case C‑5/03 Greece v Commission , paragraph 38, and case-law cited therein). | 38. The second plea must therefore be rejected as unfounded.
The third plea
Arguments of the parties | 43. In that regard, it must be pointed out that the second paragraph of Article 176 of Directive 2006/112 contains a ‘standstill’ clause, which provides for the retention by States acceding to the European Union, of national exclusions from the right to deduct VAT which were applicable before the date of their accession (see, to that effect, Joined Cases C‑177/99 and C‑181/99 Ampafrance and Sanofi [2000] ECR I‑7013, paragraph 5). None the less, the ‘standstill’ clause, provided for in the second paragraph of Article 176 of Directive 2006/112, is not intended to allow a new Member State to amend its domestic legislation on its accession to the European Union in a way which diverts that legislation from the objectives of that directive ( Magoora , paragraph 39). |
33. It is also undisputed that the Framework Decision, based on Articles 31 EU and 34 EU, is one of the acts referred to in Article 35(1) EU on which the Court may rule in a reference for a preliminary ruling and it is accepted that the referring court, acting in proceedings such as those in the main action, must be regarded as a court or tribunal of a Member State for the purposes of Article 35 EU (see, inter alia, Case C-507/10 X [2011] ECR I-14241, paragraph 21). | 21. It is also undisputed that the Framework Decision, based on Articles 31 EU and 34 EU, is one of the acts referred to in Article 35(1) EU on which the Court may rule in a reference for a preliminary ruling and it is accepted that the judge in charge of preliminary investigations, acting in proceedings such as those in the main action, must be regarded as a court or tribunal of a Member State for the purposes of Article 35 EU (see, inter alia, Case C‑467/05 Dell’Orto [2007] ECR I‑5557, paragraph 35). | 32. As the Court has stated, those directives would be deprived of their effectiveness if, solely on the basis of the victim’s contribution to the occurrence of his injuries, national rules, established on the basis of general and abstract criteria, either denied the victim the right to be compensated by the compulsory insurance against civil liability in respect of the use of motor vehicles or limited such a right in a disproportionate manner. It is, therefore, only in exceptional circumstances that that right may be limited on the basis of an assessment of a particular case ( Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 29). |
29. It is clear from the Court’s settled case-law that it is for the party or the authority alleging an infringement of the competition rules to prove it and that it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence (see, to that effect, Aalborg Portland and Others v Commission , paragraph 78). | 78. As the Council very recently stated in the fifth recital of Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), it should be for the party or the authority alleging an infringement of the competition rules to prove the existence thereof and it should be for the undertaking or association of undertakings invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence. | 32. As regards the function of advertising, the Court has held that use of a sign identical with another person’s trade mark in a referencing service such as ‘AdWords’ is not liable to have an adverse effect on the advertising function of the trade mark ( Google France and Google , paragraph 98, and Case C‑278/08 BergSpechte [2010] ECR I‑0000, paragraph 33). |
40 It should be borne in mind that the Court held, in paragraph 90 of the Belgium v Commission judgment cited above, that, despite the undeniable existence of difficulties, there was nothing to show that it was absolutely impossible for recovery of the aid in question to be carried out and that that was already the case when the Commission adopted Decision 97/239. | 90 As regards the administrative and practical difficulties which will incontestably arise owing to the large number of undertakings involved, as was made clear in Case C-280/95 Commission v Italy, cited above, these also do not warrant regarding recovery as technically impossible. Despite the incontestable existence of the difficulties referred to by the Belgian Government at the time when the Commission ordered the aid to be recovered, there is nothing to prove that it is absolutely impossible for recovery to be carried out and that such absolute impossibility already existed when the Commission took its contested decision. To hold, in those circumstances, that recovery is impossible would undermine the effectiveness of Community law in the matter of State aid, which cannot be allowed. | 14. In that context, the Directive draws a distinction between, on the one hand, products held for commercial purposes and, on the other hand, products held for private purposes ( Joustra , paragraph 28). |
33. The term ‘discard’ must be interpreted in the light not only of the fundamental aim of the directive, which, according to the third recital in the preamble thereto, is ‘the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste’, but also of Article 174(2) EC. The latter provision states that ‘Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken … ‘. It follows that the term ‘discard’ – and, accordingly, the concept of ‘waste’, within the meaning of Article 1(a) of the directive – cannot be interpreted restrictively (see, to that effect, inter alia, Joined Cases C‑418/97 and C‑419/97, ARCO Chemie Nederland and Others [2000] ECR I‑4475, paragraphs 36 to 40, and Thames Water Utilities , paragraph 27). | 36 It follows that the scope of the term waste turns on the meaning of the term discard (Case C-129/96 Inter-Environnement Wallonie ASBL v Région Wallonne [1997] ECR I-7411, paragraph 26). | 15 Second, any pecuniary charge which is imposed unilaterally on domestic or foreign 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 Treaty, even if it is not imposed for the benefit of the State and is not discriminatory or protective in effect (Commission v Italy, paragraph 9). |
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). | 26 According to the Court's case-law, however, national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty can be justified only 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, in particular, judgments in Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32, in Gebhard, cited above, paragraph 37, and, most recently, of 4 July 2000 in Case C-424/97 Haim [2000] ECR I-5123, paragraph 57). | 30
Article 23(1) of Regulation No 1008/2008 seeks to ensure, in particular, that there is information and transparency with regard to prices for air services from an airport located in a Member State and accordingly to contribute to safeguarding protection of customers who use those services. In that respect, it lays down information and transparency obligations as regards, in particular, the conditions applicable to air fares, the final price to be paid, the air fare and the unavoidable and foreseeable items that are added to the fare, and the optional price supplements relating to services that supplement the air service itself (judgment of 18 September 2014, Vueling Airlines, C‑487/12, EU:C:2014:2232, paragraph 32). |
20 As far as the right to join an occupational scheme is concerned, it stated that there was no reason to suppose that those concerned could have been mistaken as to the applicability of Article 119. It has been clear since the judgment in Case 170/84 Bilka-Kaufhaus v Karin Weber von Hartz [1986] ECR 1607 that a breach of the rule of equal treatment as regards recognition of such a right is caught by Article 119 (Vroege, paragraphs 28 and 29 and Fisscher, paragraphs 25 and 26). | 23 In those circumstances the Court ruled that the direct effect of Article 119 of the Treaty may be relied upon, for the purpose of claiming equal treatment in the matter of occupational pensions, only in relation to benefits payable in respect of periods of service subsequent to 17 May 1990, except in the case of workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law (paragraph 45 of the Barber judgment, as clarified in the Ten Oever judgment). | 32. Nevertheless, as the Court has already held, the application by analogy of a classification regulation, such as Regulation No 442/2000, to products similar to those covered by that regulation facilitates a coherent interpretation of the CN and the equal treatment of traders (see Krings , paragraph 35). |
34. It would be incompatible with the right of freedom of movement were a worker or a person seeking employment, in the Member State of which he is a national, to receive treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement (see, to that effect, Case C‑224/98 D’Hoop [2002] ECR I-6191, paragraph 30, and Case C‑224/02 Pusa [2004] ECR I-5763, paragraph 18). | 30 In that a citizen of the Union must be granted in all Member States the same treatment in law as that accorded to the nationals of those Member States who find themselves in the same situation, it would be incompatible with the right of freedom of movement were a citizen, in the Member State of which he is a national, to receive treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement. | 33
In this regard, it must be recalled that, in accordance with recital 46 and Article 2 of Directive 2004/18, contracting authorities are required to afford economic operators equal, non-discriminatory and transparent treatment (judgments of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 60, and of 4 May 2017, Esaprojekt, C‑387/14, EU:C:2017:338, paragraph 35). |
69. Moreover, it is apparent from the case‑law that to oblige the Commission to give to undertakings under investigation specific indications of the level of the contemplated fines at the stage of the statement of objections would in effect require it inappropriately to anticipate its final decision (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 21). | 21 THAT PART OF THE SUBMISSION CANNOT BE UPHELD EITHER . IN ITS STATEMENT OF OBJECTIONS , THE COMMISSION EXPRESSLY STATED THAT IT WOULD CONSIDER WHETHER IT WAS APPROPRIATE TO IMPOSE FINES ON THE UNDERTAKINGS AND IT ALSO INDICATED THE MAIN FACTUAL AND LEGAL CRITERIA CAPABLE OF ATTRACTING A FINE , SUCH AS THE GRAVITY AND THE DURATION OF THE ALLEGED INFRINGEMENT AND WHETHER THAT INFRINGEMENT WAS COMMITTED ' ' INTENTIONALLY OR NEGLIGENTLY ' ' . IN DOING SO THE COMMISSION FULFILLED ITS OBLIGATIONS ON THIS POINT INASMUCH AS IT GAVE THE UNDERTAKINGS THE NECESSARY DETAILS TO ENABLE THEM TO DEFEND THEMSELVES NOT MERELY AGAINST THE FINDING OF AN INFRINGEMENT BUT ALSO AGAINST THE IMPOSITION OF FINES . TO GIVE INDICATIONS AS REGARDS THE LEVEL OF THE FINES ENVISAGED , BEFORE THE UNDERTAKINGS HAVE BEEN INVITED TO SUBMIT THEIR OBSERVATIONS ON THE ALLEGATIONS AGAINST THEM , WOULD BE TO ANTICIPATE THE COMMISSION ' S DECISION AND WOULD THUS BE INAPPROPRIATE .
| 42. That conclusion cannot challenged by the argument of the Czech Government that the effects of the legislation at issue are negligible, given that, according to settled case-law, a restriction on a fundamental freedom is prohibited by the Treaty even if it is of limited scope or minor importance ( Commission v France , C‑34/98, EU:C:2000:84, paragraph 49, and X , EU:C:2012:635, paragraph 30).
Justification of a restriction on the freedom to provide services |
58 In that connection, the case-law of the Court of Justice shows that only advantages granted directly or indirectly through State resources are to be considered aid within the meaning of Article 92(1). The distinction made in that provision between aid granted by a Member State and aid granted through State resources does not signify that all advantages granted by a State, whether financed through State resources or not, constitute aid but is intended merely to bring within that definition both advantages which are granted directly by the State and those granted by a public or private body designated or established by the State (see Case 82/77 Van Tiggele [1978] ECR 25, paragraphs 24 and 25; Sloman Neptun, paragraph 19; Case C-189/91 Kirsammer-Hack [1993] ECR I-6185, paragraph 16; Joined Cases C-52/97, C-53/97 and C-54/97 Viscido [1998] ECR I-2629, paragraph 13; Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 35; Case C-295/97 Piaggio [1999] ECR I-3735, paragraph 35). | 25THE ADVANTAGES WHICH SUCH AN INTERVENTION IN THE FORMATION OF PRICES ENTAILS FOR THE DISTRIBUTORS OF THE PRODUCT ARE NOT GRANTED , DIRECTLY OR INDIRECTLY , THROUGH STATE RESOURCES WITHIN THE MEANING OF ARTICLE 92 . | 37. It should also be noted that, pursuant to the principle that the public and private sectors are to be treated equally, capital placed directly or indirectly at the disposal of an undertaking by the State in circumstances which correspond to normal market conditions cannot be regarded as State aid (Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 20). |
52. According to settled case-law, the purpose of those directives is to avert 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 other than economic considerations (see, in particular, Case C-380/98 University of Cambridge [2000] ECR I-8035, paragraph 17; Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 52; and Adolf Truley , paragraph 42). | 52. It has deduced therefrom that the aim of Directive 93/37 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, in particular, both cases cited above, University of Cambridge , paragraph 17, and Commission v France , paragraph 42). | 55. In addition, such a term enables the seller or supplier to deal with all the litigation relating to his trade, business or profession in one court, which is not the one within whose jurisdiction the consumer lives, which makes it easier for the seller or supplier to arrange to enter an appearance and makes it less onerous for him to do so (see, to that effect, Océano Grupo Editorial and Salvat Editores , paragraph 23). |
29. It should be noted at the outset that, where a contract is to be awarded by the best-value-for-money procedure, in accordance with Article 97(2) of the Financial Regulation and Article 138(1) of the implementing rules, the contracting authority must define and specify in the tender specifications the award criteria enabling evaluation of the content of tenders. In addition, those criteria must, in accordance with Article 138(2) of the implementing rules, be justified by the subject of the contract. According to Article 138(3), the contracting authority must also specify, in the contract notice or in the tender specifications, the weighting it will apply to each of the criteria for determining the best value for money. Those provisions seek to ensure compliance with the principles of equal treatment and transparency at the stage of evaluation of tenders with a view to award of the contract (see, by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraphs 21 and 22, and Case C‑470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraphs 90 to 92). | 92. That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed (see Telaustria and Telefonadress , cited above, paragraph 62). | 52. Pursuant to Article 300(7) EC (now Article 216(2) TFEU), international agreements concluded by the European Union bind its institutions and consequently prevail over the acts laid down by those institutions (see, to that effect, judgment in Intertanko and Others , EU:C:2008:312, paragraph 42 and the case-law cited). |
43
According to the Court’s settled case-law, observance of the rights of the defence in a proceeding before the Commission, the aim of which is to impose a fine on an undertaking for infringement of competition rules, requires that the undertaking concerned must have been afforded the opportunity to make known its views on the truth and relevance of the facts and circumstances alleged as well as on the documents used by the Commission to support its claim that there has been an infringement. Those rights are referred to in Article 41(2)(a) and (b) of the Charter of Fundamental Rights of the European Union (judgment of 25 October 2011, Solvay v Commission, C‑110/10 P, EU:C:2011:687, paragraph 48 and the case-law cited). | 48. Observance of the rights of the defence in a proceeding before the Commission, the aim of which is to impose a fine on an undertaking for infringement of the competition rules requires that the undertaking under investigation must have been afforded the opportunity to make known its views on the truth and relevance of the facts alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty ( Aalborg Portland and Others v Commission , paragraph 66). Those rights are referred to in Article 41(2)(a) and (b) of the Charter of Fundamental Rights of the European Union. | 33. It follows that the amount of EUR 798 million must be considered to be the minimum aid amount to be recovered in accordance with Article 2 of the decision in question. The operative part of a decision relating to State aid is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (see, in particular, Case C-355/95 P TWD v Commission [1997] ECR I-2549, paragraph 21). |
34. It should be recalled, as a preliminary point, that the purpose of the Framework Decision, as is apparent in particular from Article 1(1) and (2) and recitals 5 and 7 in the preamble, is to replace the multilateral system of extradition between Member States with a system of surrender between judicial authorities of convicted or suspected persons for the purpose of enforcing judgments or of conducting prosecutions, that system of surrender being based on the principle of mutual recognition (see Case C‑396/11 Radu [2013] ECR I‑0000, paragraph 33, and Case C‑399/11 Melloni [2013] ECR I‑0000, paragraph 36). | 33. It should also be recalled that, as is apparent in particular from Article 1(1) and (2) of Framework Decision 2002/584 and from recitals 5 and 7 in the preamble thereto, the purpose of that decision is to replace the multilateral system of extradition between Member States with a system of surrender, as between judicial authorities, of convicted persons or suspects for the purpose of enforcing judgments or of conducting prosecutions, that system of surrender being based on the principle of mutual recognition (see judgment of 5 September 2012 in Case C-42/11 Lopes Da Silva Jorge , paragraph 28 and the case-law cited). | 84. It likewise follows from settled case-law that a scheme of prior administrative authorisation cannot legitimise discretionary decisions taken by the national authorities, which are liable to negate the effectiveness of provisions of Community law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings (see Joined Cases C-358/93 and C-416/93 Bordessa and Others [1995] ECR I-361, paragraph 25; Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, paragraphs 23 to 28, and Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 37). |
39. By the same token, the Court has stated that the application of that ground for refusal does not depend on there being a real, current or serious need to leave a sign or indication free and that it is therefore of no relevance to know the number of competitors who have an interest, or who might have an interest, in using the sign in question (Joined Cases C-108/97 and C-109/97 Windsurfing Chiemsee [1999] ECR I-2779, paragraph 35, and Case C‑363/99 Koninklijke KPN Nederland [2004] ECR I-1619, paragraph 58). It is, furthermore, irrelevant whether there are other, more usual, signs than that at issue for designating the same characteristics of the goods or services referred to in the application for registration ( Koninklijke KPN Nederland , paragraph 57). | 57. It is irrelevant whether there are other, more usual, signs or indications for designating the same characteristics of the goods or services referred to in the application for registration than those of which the mark concerned consists. Although Article 3(1)(c) of the Directive provides that, if the ground for refusal set out there is to apply, the mark must consist " exclusively" of signs or indications which may serve to designate characteristics of the goods or services concerned, it does not require that those signs or indications should be the only way of designating such characteristics. | 34. OHIM submits that the judgment in Intra-Presse v OHIM (C‑581/13 P and C‑582/13 P, EU:C:2014:2387) on which El Corte Inglés relies in order to develop its arguments must be put into perspective with the judgments in Calvin Klein Trademark Trust v OHIM (C‑254/09 P, EU:C:2010:488) and Ferrero v OHIM (C‑552/09 P, EU:C:2011:177). It takes the view that, in the latter two judgments, the Court of Justice held that the General Court had been right to conclude that Article 8(5) of Regulation No 40/94, the provisions of which were identical to those of Article 8(5) of Regulation No 207/2009, was manifestly inapplicable, even though the General Court had pointed out that the signs at issue had a word or figurative element in common when it examined the conditions for the application of the protection currently provided for in Article 8(1)(b) of Regulation No 207/2009. |
40
The Court has also stated that the more extensive the evidence of the existence of a possible equivalent effect, within the meaning of Article 21(a) of Regulation No 562/2006, apparent from the objective pursued by the checks carried out in a border area, from the territorial scope of those checks and from the existence of a distinction between the basis of those checks and that of those carried out in the remainder of the territory of the Member State concerned, the greater the need for strict detailed rules and limitations laying down the conditions for the exercise by the Member States of their police powers in a border area and for strict application of those detailed rules and limitations, in order not to imperil the attainment of the objective of the abolition of internal border controls set out in Article 3(2) TEU, Article 26(2) TFEU and 67(1) TFEU, and provided for in Article 20 of Regulation No 562/2006 (judgment of 19 July 2012, Adil, C‑278/12 PPU, EU:C:2012:508, paragraph 75). | 75. It must however be stated that, the more extensive the evidence of the existence of a possible equivalent effect, within the meaning of Article 21(a) of Regulation No 526/2006, apparent from the objective pursued by the checks carried out in a border area, from the territorial scope of those checks and from the existence of a distinction between the basis of those checks and that of those carried out in the remainder of the territory of the Member State concerned, the greater the need for strict detailed rules and limitations laying down the conditions for the exercise by the Member States of their police powers in a border area and for strict application of those detailed rules and limitations, in order not to imperil the attainment of the objective of the abolition of internal border controls set out in Articles 3(2) TEU, 26(2) TFEU and 67(1) TFEU, and provided for in Article 20 of Regulation No 562/2006. | 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. |
38
In the judgments, the Court held, first of all, that the definitive regulation was vitiated by an infringement of the obligation imposed upon the Commission to examine the claims of producers for market economy treatment and to adjudicate upon each of those claims within a period of three months from the initiation of its investigation, in accordance with Article 2(7)(b) and (c) of Regulation No 384/96, including where the Commission has decided to use sampling as provided for in Article 17 of that regulation to calculate the dumping margins and the producers which have submitted those claims are not included in the sample selected (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraphs 36 to 40, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraphs 29 to 34). | 36. However, the General Court erred in law in so far as it held that the Commission was not required to examine MET claims under Article 2(7)(b) and (c) of the basic regulation from non-sampled traders. | 36
Next, the Court held that the obligation to interpret strictly the exception laid down in Article 13 of Regulation No 1346/2000 precludes a broad interpretation of the scope of that article which would allow a person who has benefited from an act detrimental to all the creditors to avoid the application of the lex fori concursus by relying solely, in a purely abstract manner, on the unchallengeable character of the act at issue on the basis of a provision of the lex causae (judgment of 15 October 2015, Nike European Operations Netherlands, C‑310/14, EU:C:2015:690, paragraph 21). |
94. It should be noted that, according to settled case-law, the misuse of powers is the adoption by an institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (judgments in United Kingdom v Council , C‑84/94, EU:C:1996:431, paragraph 69; in Windpark Groothusen v Commission , C‑48/96 P, EU:C:1998:223, paragraph 52, and Swedish Match , C‑210/03, EU:C:2004:802, paragraph 75). | 75. As the Court has repeatedly held, a measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 24, and Case C-110/97 Netherlands v Council [2001] ECR I-8763, paragraph 137). | 32. The interpretation of the national legislation in order to determine its content at the date of entry into force of the Sixth Directive and to establish whether the effect of that legislation was to extend, after the entry into force of the Sixth Directive, the scope of existing exclusions is in principle within the jurisdiction of the national court (see Metropol and Stadler , paragraph 47). |
34. It should be noted first of all that the Court has already ruled that the provision of access to roads on payment of a toll constitutes a supply of services for consideration within the meaning of Article 2(1) of the Sixth Directive ( Commission v France , paragraph 36; Case C‑358/97 Commission v Ireland , paragraph 34; Commission v United Kingdom , paragraph 46; Case C‑408/97 Commission v Netherlands , paragraph 30; Commission v Greece , paragraph 31; and Case C-83/99 Commission v Spain [2001] ECR I‑445, paragraph 11). | 46 Accordingly, providing access to roads on payment of a toll constitutes a supply of services for consideration within the meaning of Article 2(1) of the Sixth Directive. | 49
The Court has noted, in that regard, that the purpose of the rule that the addressee of an adverse decision must be placed in a position to submit his observations before that decision is adopted is to enable the competent authority effectively to take into account all relevant information. In order to ensure that the person or undertaking concerned is in fact protected, the purpose of that rule is, inter alia, to enable them to correct an error or submit such information relating to their personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (see, to that effect, judgments of 18 December 2008, Sopropé, C‑349/07, EU:C:2008:746, paragraph 49, and of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 38). |
42
In that regard, it must be observed that, both the general scheme and the purpose of Directive 2003/96 are based on the principle that energy products are taxed in accordance with their actual use (judgment of 2 June 2016, ROZ-ŚWIT, C‑418/14, EU:C:2016:400, paragraph 33). | 33
It follows that both the general scheme and the purpose of Directive 2003/96 are based on the principle that energy products are taxed in accordance with their actual use. | 96. In addition, such a presumption is also justified in the light of the Statute of the Court of Justice of the European Union and the Rules of Procedure of the EU Courts (see, by analogy, Commission v Technische Glaswerke Ilmenau , paragraph 55). |
59. It is appropriate, in that context, to observe that Article 85 of the Treaty refers to the activities of " undertakings" . For that provision to apply, a change in the legal form and name of an undertaking does not necessarily have the effect of creating a new undertaking free of liability for the anti-competitive behaviour of its predecessor when, from an economic point of view, the two are identical (see, to that effect, Joined Cases 29/83 and 30/83 CRAM and Rheinzink v Commission [1984] ECR 1679, paragraph 9). | 9 THE COMMISSION ' S ARGUMENT MUST BE ACCEPTED . RHEINZINK HAS NOT CONTESTED THAT NOT ONLY IS IT THE LEGAL SUCCESSOR OF RHEINISCHES ZINKWALZWERK GMBH & CO ., BUT IT HAS CONTINUED THE ECONOMIC ACTIVITIES OF THAT COMPANY . FOR THE PURPOSES OF ARTICLE 85 OF THE TREATY , A CHANGE IN THE LEGAL FORM AND NAME OF AN UNDERTAKING DOES NOT CREATE A NEW UNDERTAKING FREE OF LIABILITY FOR THE ANTI-COMPETITIVE BEHAVIOUR OF ITS PREDECESSOR , WHEN , FROM AN ECONOMIC POINT OF VIEW , THE TWO ARE IDENTICAL .
A - THE CONCERTED ACTION | 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. |
28. According to the case-law of the Court, the freedom to conduct a business is not absolute. It may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest (see, to that effect, Sky Österreich , paragraphs 45 and 46 and the case-law cited). | 46. On the basis of that case-law and in the light of the wording of Article 16 of the Charter, which differs from the wording of the other fundamental freedoms laid down in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter, the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest. | 52. In that regard, it must be noted that such requirements relating to social housing policy in a Member State can constitute overriding reasons in the public interest and therefore justify restrictions such as those established by the Flemish Decree (see Woningstichting Sint Servatius , paragraphs 29 and 30, and Case C‑400/08 Commission v Spain [2011] ECR I‑1915, paragraph 74). |
55. Normal residence must be regarded as the place where a person has established his permanent centre of interests (see, by analogy, Ryborg , paragraph 19, and Louloudakis , paragraph 51). | 19 It must be stated, first, that the criteria laid down in those provisions refer both to a person' s occupational and personal ties with a place and to the duration of those ties and consequently that they must be examined in conjunction with each other. Normal residence must, according to consistent decisions of the Court in other spheres of Community law, be regarded as the place where a person has established his permanent centre of interests (see judgments in Case 13/73 Angenieux [1973] ECR 935, Case 284/87 Schaeflein v Commission [1988] ECR 4475 and Case C-216/89 Reibold [1990] ECR I-4163). | 112. The Court has consistently held that, where an undertaking that has benefited from unlawful State aid is bought at the market price, that is to say at the highest price which a private investor acting under normal competitive conditions was ready to pay for that company in the situation it was in, in particular after having enjoyed State aid, the aid element was assessed at the market price and included in the purchase price. In such circumstances, the buyer cannot be regarded as having benefited from an advantage in relation to other market operators (see judgment in Germany v Commission , C‑277/00, EU:C:2004:238, paragraph 80 and the case-law cited). |
52. In accordance with well-established case-law, the concept of ‘establishment’ within the meaning of Article 43 EC is a very broad one, allowing a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin (Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 25, and Case C‑470/04 N [2006] ECR I‑7409, paragraph 26). Where a Community national lives in one Member State and has a shareholding in the capital of a company established in another Member State which gives him substantial influence over the company’s decisions and allows him to determine its activities, that may thus fall within the freedom of establishment (see, to that effect, N , paragraph 27; Case C‑347/04 Rewe Zentralfinanz [2007] ECR I‑2647, paragraphs 22 and 70; and Case C‑360/06 Heinrich Bauer Verlag [2008] ECR I‑7333, paragraph 27). | 70. In the light of all the above considerations, the answer to the national court’s question must be that, in circumstances such as those of the main proceedings, in which a parent company holds shares in a non‑resident subsidiary which give it a definite influence over the decisions of that foreign subsidiary and allow it to determine its activities, Articles 52 and 58 of the Treaty preclude legislation of a Member State which restricts the right of a parent company which is resident in that State to deduct for tax purposes losses incurred by that company in respect of write-downs to the book value of its shareholdings in subsidiaries established in other Member States.
The interpretation of the provisions of the Treaty relating to the free movement of capital | 40. 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 (Case C-311/97 Royal Bank of Scotland [1999] ECR I-2651, paragraph 19; Case C-319/02 Manninen [2004] ECR I-7477, paragraph 19; and Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 29). |
51. The reason for this is that, like Regulation No 2580/2001, that inclusion on the list is of general application. It serves, together with that regulation, to impose on an indeterminate number of persons an obligation to comply with specific restrictive measures against DHKP-C (see, by analogy, Kadi and Al Barakaat International Foundation v Council and Commission , paragraphs 241 to 244). | 241. The Court of First Instance rightly held in paragraphs 184 to 188 of Yusuf and Al Barakaat that the fact that the persons and entities who are the subject of the restrictive measures imposed by the contested regulation are expressly named in Annex I thereto, so that they appear to be directly and individually concerned by it, within the meaning of the fourth paragraph of Article 230 EC, does not mean that that act is not of general application within the meaning of the second paragraph of Article 249 EC or that it is not to be classified as a regulation. | 67. Where, however, a Member State has chosen not to tax recipient companies established in its territory in respect of this kind of income, it cannot rely on the argument that there is a need to safeguard the balanced apportionment of the power to tax between the Member States in order to justify the taxation of recipient companies established in another Member State ( Amurta , paragraph 59). |
51 It must, however, also be borne in mind that, according to settled case-law, a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties (see Case 270/80 Polydor and RSO Records [1982] ECR 329, paragraphs 14 to 21; Case 104/81 Kupferberg [1982] ECR 3641, paragraphs 29 to 31; Case C-312/91 Metalsa [1993] ECR I-3751, paragraphs 11 to 20). | 14 THE PROVISIONS OF THE AGREEMENT ON THE ELIMINATION OF RESTRICTIONS ON TRADE BETWEEN THE COMMUNITY AND PORTUGAL ARE EXPRESSED IN TERMS WHICH IN SEVERAL RESPECTS ARE SIMILAR TO THOSE OF THE EEC TREATY ON THE ABOLITION OF RESTRICTIONS ON INTRA-COMMUNITY TRADE . HARLEQUIN AND SIMONS POINTED OUT IN PARTICULAR THE SIMILARITY BETWEEN THE TERMS OF ARTICLES 14 ( 2 ) AND 23 OF THE AGREEMENT ON THE ONE HAND AND THOSE OF ARTICLES 30 AND 36 OF THE EEC TREATY ON THE OTHER .
| 57 It must be noted, first, that it is settled case-law that in a legislative context involving the exercise of a wide discretion, the Community cannot incur liability unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers (see, to that effect, Joined Cases 83/76, 94/76, 4/77, 15/77 and 40/77 HNL and Others v Council and Commission [1978] ECR 1209, paragraphs 4 and 6, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 25). |
162. As regards the Republic of Austria’s argument to the effect that application of the legislation is consistent with the Directive, it need only be stated that mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting valid fulfilment of the obligations to transpose a directive (see, to this effect, Case C-197/96 Commission v France [1997] ECR I‑1489, paragraph 14; Case C-358/98 Commission v Italy [2000] ECR I‑1255, paragraph 17; and Case C-33/03 Commission v United Kingdom [2005] ECR I‑1865, paragraph 25). | 17 The Court has consistently held that the incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty (see, in particular, Case C-197/96 Commission v France [1997] ECR I-1489, paragraph 14). | 19 It must first be noted in this regard that the transactions mentioned in Article 4 of Directive 69/335, to which Article 10(a) and (b) thereof refers, are transactions involving the transfer of capital or assets to a capital company in the taxing Member State or resulting in an effective increase in the company's capital or assets (Case C-4/97 Nonwoven v Direzione Regionale delle Entrate per la Toscana [1998] ECR I-6469, paragraph 20). |
31 It must also be noted that Keck and Mithouard, cited above, is concerned only with domestic provisions which limit or prohibit certain selling arrangements and not national legislation designed to regulate trade in goods between Member States (paragraph 12 of the judgment) or which relate to the requirements to be met by the goods in question (paragraph 15 of the judgment). | 12 National legislation imposing a general prohibition on resale at a loss is not designed to regulate trade in goods between Member States. | 42. As regards, first, the aim of protecting acquired rights alluded to by the referring court, protection of the acquired rights of a category of persons constitutes an overriding reason in the public interest (judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 64 and the case-law cited). |
22. In that regard, it is important to note that Regulation No 258/97 has the twofold objective of ensuring the functioning of the internal market in new foodstuffs and protecting public health against the risks to which they may give rise (see, to that effect, Case C‑236/01 Monsanto Agricoltura Italia and Others [2003] ECR I‑8105, paragraph 74). | 74. The twofold objective of Regulation No 258/97, which is to ensure the functioning of the internal market in new foodstuffs (the first recital in the preamble to the Regulation) and to protect public health against the risks to which they may give rise (the second recital in the preamble to the Regulation and the first indent in Article 3(1)), is an important factor supporting an interpretation according to which the concept of substantial equivalence does not preclude novel foods which display differences in composition that have no effect on public health from being considered substantially equivalent to existing foods. | 26. Subsequently, the Court has made clear that the principal objective of the Brussels Convention is to simplify the procedures in the State where enforcement is sought by laying down a very summary, simple and rapid enforcement procedure, whilst at the same time giving the party against whom enforcement is sought an opportunity to bring an appeal (see, to that effect, Case C-414/92 Solo Kleinmotoren [1994] ECR I-2237, paragraph 20, and Case C-260/97 Unibank [1999] ECR I‑3715, paragraph 14). |
26
Although it is true that, as stated, inter alia, in recital 2 thereof, Directive 2014/24 aims to clarify basic notions and concepts to ensure legal certainty, and to incorporate certain aspects of related well-established case-law of the Court of Justice of the European Union, the fact remains that Article 63 of that directive introduces substantial amendments as regards the right of an economic operator to rely on the capacities of other entities in the context of public contracts (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 90). | 90
Although it is true, as stated, inter alia, by recital 2 of Directive 2014/24, Directive 2014/24 aims to clarify basic notions and concepts to ensure legal certainty and to incorporate certain aspects of related well-established case-law of the Court of Justice of the European Union, the fact remains that Article 63 of that directive introduces substantial amendments as regards the right of an economic operator to rely on the capacities of other entities in the context of public contracts. | 87. Article 17(1) is a specific expression of the obligation of genuine cooperation under Article 10 EC, which requires Member States, when they encounter problems in the application of Community law, to submit those problems to the Commission (see, by analogy, inter alia Case C-499/99 Commission v Spain [2002] ECR I-6031, paragraph 24) and, in addition, does not allow them to introduce national safeguard measures in response to objections, reservations or conditions which the Commission might put forward (see, by analogy, Case 804/79 Commission v United Kingdom [1981] ECR 1045, paragraph 32). In the present case, it is common ground that the Federal Republic of Germany acted unilaterally, even after the Commission had expressed objections. |
9. À cet égard, il convient de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêts du 30 janvier 2002, Commission/Grèce, C‑103/00, Rec. p. I‑1147, point 23, et du 27 octobre 2005, Commission/Luxembourg, C‑23/05, Rec. p. I‑9535, point 9). | 23 It should be observed in this regard that the Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-166/97 Commission v France [1999] ECR I-1719, paragraph 18, and Case C-220/99 Commission v France [2001] ECR I-5831, paragraph 33). | 70
It must be borne in mind that, according to the settled case-law of the Court of Justice, to which the General Court correctly referred in paragraph 99 of the judgment under appeal, in the context of the review conducted by the European Union judicature of complex economic assessments made by the Commission in the field of State aid, it is not for that judicature to substitute its own economic assessment for that of the Commission. However, the European Union judicature must, inter alia, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, inter alia, judgment of 24 October 2013, Land Burgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraphs 78 and 79 and the case-law cited). |
61. Secondly, it must be borne in mind that only the distinguishing criteria for taxing distributed profits established by the national tax legislation at issue in the main proceedings are to be taken into account in determining whether situations subject to differential treatment are objectively comparable (see, to that effect, Santander Asset Management SGIIC and Others , paragraph 28). | 28. Moreover, only the relevant distinguishing criteria established by the legislation in question must be taken into account in determining whether the difference in treatment resulting from that legislation reflects situations which are objectively different. Accordingly, where a Member State chooses to exercise its tax jurisdiction over dividends distributed by resident companies on the sole basis of the place of residence of the recipient UCITS, the tax situation of the latter’s shareholders is irrelevant for the purpose of determining whether or not that legislation is discriminatory. | 16. Il y a toutefois lieu de rappeler que l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé et les changements intervenus par la suite ne sauraient être pris en compte par la Cour (voir, notamment, arrêt du 13 septembre 2007, Commission/Italie, C-260/04, Rec. p. I-7083, point 18). |
33. Further, the general scheme of that regulation does not require that the treatment of ancillary proceedings should necessarily be linked to that of the main proceedings (see, by analogy, judgment in Cavel , 120/79, EU:C:1980:70, paragraphs 7 to 9). | 8 THESE PROVISIONS DEMONSTRATE UNEQUIVOCALLY THAT THE GENERAL SCHEME OF THE CONVENTION DOES NOT NECESSARILY LINK THE TREATMENT OF AN ANCILLARY CLAIM TO THAT OF A PRINCIPAL CLAIM . IN ACCORDANCE WITH THAT PRINCIPLE , AND IN REGARD PRECISELY TO THE CONVENTION ' S SCOPE , A CRIMINAL COURT , THE JUDGMENTS OF WHICH , WHEN GIVEN IN ITS PROPER AREA OF ACTIVITY , ARE CLEARLY EXCLUDED FROM THE SCOPE OF THE CONVENTION , HAS JURISDICTION CONFERRED UPON IT BY ARTICLE 5 ( 4 ) OF THE CONVENTION TO ENTERTAIN AN ANCILLARY CIVIL CLAIM , WITH THE RESULT THAT A JUDGMENT GIVEN ON THAT CLAIM WILL BENEFIT FROM THE CONVENTION AS REGARDS ITS RECOGNITION AND ENFORCEMENT . THAT PROVISION THUS EXPRESSLY PROVIDES THAT A CLAIM ANCILLARY TO CRIMINAL PROCEEDINGS , WHICH ARE OBVIOUSLY EXCLUDED FROM THE SCOPE OF THE CONVENTION , COMES WITHIN IT .
| 243. It follows that, on the one hand, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, that the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly the case where the goods concerned account for only a small part of that figure (see Musique Diffusion française and Others v Commission , paragraph 121, and Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 111). |
25. En outre, la possibilité d’obtenir une exonération fiscale est susceptible d’influer de façon significative sur l’attitude du contribuable et l’absence d’une telle exonération des dons et legs effectués en faveur d’organismes et d’établissements établis dans un État membre autre que la République française est de nature à dissuader les contribuables d’effectuer des dons ou legs à leur profit (voir, en ce sens, arrêts Persche, C‑318/07, EU:C:2009:33, point 38; Commission/Autriche, C‑10/10, EU:C:2011:399, point 26, et Missionswerk Werner Heukelbach, C‑25/10, EU:C:2011:65, point 25). | 26. Consequently, the system of tax deductions in question entails, for taxpayers making gifts to research and teaching institutions established in Member States other than the Republic of Austria, a greater tax burden than for taxpayers making gifts to the institutions listed in Paragraph 4a(1)(a) to (d) of the amended EStG. Since the possibility of obtaining a tax deduction can have a significant influence on the donor’s attitude, the non-deductibility of gifts to research and teaching institutions established in Member States other than the Republic of Austria may discourage taxpayers from making gifts to them (see, to that effect, Case C‑318/07 Persche [2009] ECR I‑359, parag raph 38). | 30. It is, moreover, common ground that the purpose of the right to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure (see Schultz-Hoff and Others , paragraph 25). The positive effect of paid annual leave for the safety and health of the worker continues to be of significance if it is not taken in the reference period but during a later period (Case C‑124/05 Federatie Nederlandse Vakbeweging [2006] ECR I‑3423, paragraph 30). |
79. Furthermore, the precise prohibition laid down by clause 4(1) of the framework agreement does not require the adoption of any further measure of the EU institutions and does not in any way confer on Member States the right, when transposing it into domestic law, to limit the scope of the prohibition laid down in respect of employment conditions ( Impact , paragraph 62). | 62. Furthermore, the precise prohibition laid down by Clause 4(1) of the framework agreement does not require the adoption of any further measure of the Community institutions (see, by analogy, Case 41/74 van Duyn [1974] ECR 1337, paragraph 6). Besides, the provision under consideration does not in any way confer on Member States the right, when transposing it into domestic law, to limit the scope of the prohibition laid down in respect of employment conditions (see, by analogy, Marshall , paragraph 55). | 53. Furthermore, since Article 36 of the EC Treaty (now, after amendment, Article 30 EC) provides for an exception, to be interpreted strictly, to the rule of free movement of goods within the Community, it is for the national authorities which invoke it to show in each case, in the light of national nutritional habits and in the light of the results of international scientific research, that their rules are necessary to give effective protection to the interests referred to in that provision and, in particular, that the marketing of the products in question poses a real risk to public health (see Commission v Denmark , paragraph 46). |
31. As regards imputability to the State, for the purposes of Article 107(1) TFEU, of the provision of those guarantees, it should be noted that that may not be inferred from the mere fact that they have been provided by a public undertaking controlled by the State. Even if the State is in a position to control a public undertaking and to exercise a decisive influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. It is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of those measures (see, to that effect, judgment in France v Commission , EU:C:2002:294, paragraphs 50 to 52). | 50 There is no dispute that, in the contested decision, the Commission inferred the imputability of the financial assistance granted to Stardust by Altus and SBT to the State simply from the fact that those two companies, as subsidiaries of Crédit Lyonnais, were indirectly controlled by the State. | 40. Since the Court of Justice alone has jurisdiction to declare an act, such as an anti-dumping regulation, of the European Union invalid and the purpose of that jurisdiction is to ensure legal certainty through the uniform application of EU law (see Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667, paragraph 54 and the case-law cited), the fact that the DSB has found that an anti-dumping regulation is not in accordance with the anti-dumping agreement does not affect the presumption that such a regulation is lawful. |
27
In the second place, it should be pointed out that an error by the General Court in the assessment of the severability of a provision of an act of EU law is an error of law which is subject to review by the Court of Justice (for such a review, see, inter alia, judgment of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraphs 110 to 122). | 114. With regard in particular to the relationship between, on the one hand, Article 1(1) and (2), Article 2(1) and Article 3(1) of the contested decision and, on the other hand, the remaining provisions of that decision, it must be concluded that, while referring to a number of different aspects of the Estonian NAP and to the various criteria listed in Annex III to Directive 2003/87, those provisions form a non‑severable whole. | 57
Even if the burden of proof rests, according to those principles, on the Commission or on the undertaking or association concerned, the factual elements on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the rules on the burden of proof have been satisfied (see judgment of 17 June 2010, Lafarge v Commission , C‑413/08 P, EU:C:2010:346, paragraph 30 and the case-law cited). |
39
Consequently, review of whether elements of an EU act are severable requires consideration of the scope of those elements in order to assess whether their annulment would alter the spirit and substance of the act (judgments of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraph 112, and of 12 November 2015, United Kingdom v Parliament and Council, C‑121/14, EU:C:2015:749, paragraph 21). | 112. In the present case, review of whether Article 1(1) and (2), Article 2(1) and (2) and Article 3(1) of the contested decision are severable from the remainder of that decision requires consideration of the scope of those provisions, in order to be able to assess whether their annulment would alter the Directive’s spirit and substance (see, to that effect, Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 29). | 33. With respect to the present infringement proceedings, it must be borne in mind that, according to the settled case-law of the Court, that principle prohibits the retroactive application of a new, shorter, and, as the case may be, more restrictive limitation period than that previously applicable, where its application concerns actions for the recovery of domestic taxes contrary to EU law which have already been commenced at the time the new period comes into force (see, to that effect, judgment in Test Claimants in the Franked Investment Income Group Litigation , EU:C:2013:834, paragraph 35 and the case-law cited). |
40. Since this ground of appeal concerns only the third of those conditions, it is appropriate to note that, according to settled case-law, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as State aid ( Enirisorse , paragraph 30; Servizi Ausiliari Dottori Commercialisti , paragraph 59; and Essent Netwerk Noord and Others , paragraph 79). | 30. In this instance, although it is for the national court to make the final assessment in this respect, various aspects of the documents available to the Court indicate that Sotacarbo’s activity is liable to be of an economic nature. | 25 With regard to the conditions under which a Member State is required to make reparation for the loss or damage thus caused, it follows from the case-law cited above that these are three in number, namely that the rule of law infringed must have been intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties (Brasserie du Pêcheur and Factortame, paragraph 51; British Telecommunications, paragraph 39; Hedley Lomas, paragraph 25; and Dillenkofer and Others, paragraph 21). Those conditions are to be applied according to each type of situation (Dillenkofer and Others, paragraph 24). |
59. As regards review of the distortion which the French Republic claims to be present in the General Court’s finding, in paragraph 43 of the judgment under appeal, that the Commission analysed whether Article 2(2) of Directive 93/37 was applicable by examining, in the decision at issue, the project consisting in a complete renovation of the Les Boucaniers complex and that that examination was based not on the works undertaken but on the complex’s overall purpose, it is to be pointed out that, in accordance with the Court of Justice’s settled case-law, distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 54). | 54. In that respect, it should be noted that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (order of 9 July 2004 in Case C‑116/03 P Fichtner v Commission , not published in the ECR, paragraph 34). | 22 In order to decide whether this complaint of the Commission is well founded, it must be recalled that, according to the Court's case-law, the fact that an activity referred to in a directive does not exist in a particular Member State cannot release that State from its obligation to adopt laws or regulations in order to ensure that all the provisions of the directive are properly transposed (see, to that effect, Case C-339/87 Commission v Netherlands [1990] ECR I-851, paragraph 22). |
17 Thus, as the Court has recognized on many occasions, the specific subject-matter of a trade mark is in particular to guarantee to the owner that he has the exclusive right to use that trade mark for the purpose of putting a product on the market for the first time and therefore to protect him against competitors wishing to take advantage of the status and reputation of the trade mark by selling products bearing it illegally (see Case 102/77 Hoffmann-La Roche v Centrafarm [1978] ECR 1139, paragraph 7; Case 1/81 Pfizer v Eurim-Pharm [1981] ECR 2913, paragraph 7; HAG II, paragraph 14; and IHT Internationale Heiztechnik, paragraph 33). | 14 Consequently, as the Court has ruled on numerous occasions, the specific subject-matter of trade marks is in particular to guarantee to the proprietor of the trade mark that he has the right to use that trade mark for the purpose of putting a product into circulation for the first time and therefore to protect him against competitors wishing to take advantage of the status and reputation of the trade mark by selling products illegally bearing that mark . In order to determine the exact scope of this right exclusively conferred on the owner of the trade mark, regard must be had to the essential function of the trade mark, which is to guarantee the identity of the origin of the marked product to the consumer or ultimate user by enabling him without any possibility of confusion to distinguish that product from products which have another origin ( see, in particular, the judgments in Case 102/77 Hoffmann-La Roche v Centrafarm [1978] ECR 1139, paragraph 7, and in Case 3/78 Centrafarm v American Home Products Corporation [1978] ECR 1823, paragraphs 11 and 12 ). | 32. Such an interpretation is not called into question by the fact that the Court held, in paragraph 32 of BLM , that it was for the referring court to determine whether, in a situation such as that at issue in the case before it, a finding could be made that there was a letting of immovable property for the purposes of Article 13(B)(b) of the Sixth Directive. |
21 It should be recalled, at the outset, that according to the settled case-law of the Court, in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, in particular, Case 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12, and C-223/98 Adidas [1999] ECR I-7081, paragraph 23). | 12 IF THE WORDING OF THE CONTESTED REGULATIONS , READ TOGETHER WITH THE ANNEX TO REGULATION NO 1400/78 ONLY , IS REFERRED TO , THEN , AS THE FINANZGERICHT POINTS OUT , THE EXPORT REFUNDS ON MANNITOL AND SORBITOL SHOULD IN ANY EVENT BE GRANTED FOR THE PERIOD IN QUESTION AT THE REDUCED RATES SET OUT IN TABLE I OF THE ANNEX TO THE CONTESTED REGULATIONS . HOWEVER , AS THE COURT HAS EMPHASIZED IN PREVIOUS DECISIONS , IN INTERPRETING A PROVISION OF COMMUNITY LAW IT IS NECESSARY TO CONSIDER NOT ONLY ITS WORDING BUT ALSO THE CONTEXT IN WHICH IT OCCURS AND THE OBJECTS OF THE RULES OF WHICH IT IS PART .
| 87. This concept of ‘objective reasons’ in clause 5(1)(a) of the Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (judgment in Kücük , EU:C:2012:39, paragraph 27 and the case-law cited). |
39
Thus, in the present case, the precautionary measures permitted under national legislation at issue in the main proceedings must 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, to that effect, judgment of 9 February 2012, Urbán, C‑210/10, EU:C:2012:64, paragraphs 24 and 53 and the case-law cited). | 53. Secondly, with regard to the severity of the fine provided for by the system of penalties at issue in the main proceedings, it is appropriate to recall the case-law cited in paragraphs 23 and 24 of the present judgment, according to which the Member States are empowered to choose the sanctions which seem to them to be appropriate. The Member States are, however, required to exercise that power in accordance with European Union law and its general principles, and consequently in accordance with the principle of proportionality. Measures imposing penalties must not, therefore, inter alia, exceed the limits of what is necessary in order to attain the objectives legitimately pursued by the legislation in question or be disproportionate to those aims. | 43. In particular, the question of whether or not any of the grounds for refusal or invalidity set out in Article 3 of the Directive apply to the mark must be assessed specifically by reference to the goods or services in respect of which registration is sought (see Koninklijke KPN Nederland , paragraph 33, and Case C-239/05 BVBA Management, Training en Consultancy [2007] ECR I-1455, paragraph 31). |
39. Thus, it first held, after recalling the central role which the FEU Treaty reserves for the Commission in determining whether aid is incompatible with the internal market, that the third subparagraph of Article 108(2) TFEU covers an exceptional and specific case, meaning that the power conferred upon the Council by that provision is clearly exceptional in character (see, to that effect, Case C‑110/02 Commission v Council [2004] ECR I‑6333, paragraphs 29 to 31) and, accordingly, that the third subparagraph of Article 108(2) TFEU must necessarily be interpreted strictly (see, by analogy, Case C‑510/08 Mattner [2010] ECR I‑3553, paragraph 32, and Case C‑419/11 Česká spořitelna [2013] ECR I‑0000, paragraph 26). | 31. It follows that, as the Commission has rightly pointed out, the power conferred upon the Council by the third subparagraph of Article 88(2) EC is clearly exceptional in character. | 110. The appellant had clearly put forward that plea in law in case the General Court rejected the interpretation of paragraph 88 of ThyssenKrupp v Commission it had put forward in its third plea in law, and no force of res judicata was attached in that respect either to that judgment or to the judgment in Krupp Thyssen Stainless and Acciai speciali Terni v Commission . |
29. The Court has already held that the OCTs are subject to the special association arrangements set out in Part Four of the Treaty, with the result that, failing express reference, the general provisions of the Treaty, whose territorial scope is in principle confined to the Member States, do not apply to them (see Case C‑260/90 Leplat [1992] ECR I‑643, paragraph 10; Case C‑181/97 van der Kooy [1999] ECR I‑483, paragraph 37; Case C‑110/97 Netherlands v Council [2001] ECR I‑8763, paragraph 49; and Case C‑300/04 Eman and Sevinger [2006] ECR I‑8055, paragraph 46). OCTs therefore benefit from the provisions of European Union law in a similar manner to the Member States only when European Union law expressly provides that OCTs and Member States are to be treated in such a manner. | 49 It is useful to begin by recalling the nature of the association with the OCTs laid down by the Treaty. That association is the subject of arrangements defined in Part Four of the Treaty (Articles 131 to 136), with the result that, failing express reference, the general provisions of the Treaty do not apply to the OCTs (see Case C-260/90 Leplat [1992] ECR I-643, paragraph 10). | 19 Moreover, as the Court has repeatedly held, the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure (see, to that effect, Case 149/77 Defrenne v Sabena [1978] ECR 1365, paragraphs 26 and 27, and Joined Cases 75/82 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, paragraph 16). |
20. It is settled case-law that a person who incurs investment expenditure with the intention, confirmed by objective evidence, of engaging in economic activity within the meaning of Article 9(1) of the VAT Directive must be regarded as a taxable person. Acting in that capacity, he has therefore, in accordance with Article 167 et seq. of that directive, the right immediately to deduct the VAT payable or paid on the investment expenditure incurred for the purposes of the transactions which he intends to carry out and which give rise to the right to deduct (see, to that effect, judgment in Gran Via Moineşti , C‑257/11, EU:C:2012:759, paragraph 27 and the case-law cited). That right to deduct arises, in accordance with Articles 63 and 167 of the VAT Directive, at the time when the tax becomes chargeable, namely when the goods are delivered (judgment in Klub , C‑153/11, EU:C:2012:163, paragraph 36 and the case-law cited). | 36. It follows from Article 168 of the VAT Directive that, in so far as the taxable person, acting as such at the time when he acquires goods, uses the goods for the purposes of his taxable transactions, he is entitled to deduct the VAT paid or payable in respect of the goods (see, to that effect, Case C‑97/90 Lennartz [1991] ECR I‑3795, paragraph 8, and Case C‑25/03 HE [2005] ECR I‑3123, paragraph 43). In accordance with Articles 63 and 167 of the VAT Directive, the right to deduct arises at the time when the deductible tax becomes chargeable, namely when the goods are delivered (see, to that effect, Case C‑378/02 Waterschap Zeeuws Vlaanderen [2005] ECR I‑4685, paragraph 31). | 23. According to the settled case-law of the Court, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (judgments in Csonka and Others , C‑409/11, EU:C:2013:512, paragraph 23, and Vnuk , C‑162/13, EU:C:2014:2146, paragraph 42). |
58. However, in accordance with settled case‑law, the existence of a direct link must be established between the tax advantage concerned and the offsetting of that advantage by a particular tax levy ( Commission v Belgium , paragraph 71 and the case‑law cited), the direct nature of that link falling to be examined in the light of the objective pursued by the rules in question (Case C‑418/07 Papillon [2008] ECR I‑8947, paragraph 44, and Case C‑303/07 Aberdeen Property Fininvest Alpha [2009] ECR I‑5145, paragraph 72). | 71. However, according to settled case-law, in order for an argument based on such a justification to succeed, a direct link must be established between the tax advantage concerned and the offsetting of that concession by a particular tax levy (see, inter alia, Verkooijen , paragraph 57; Case C‑168/01 Bosal [2003] ECR I‑9409, paragraph 29; and Manninen , paragraph 42 and the case-law cited). | 70. Further, in regard to the failure to make certain local authority discharges, such as drainage discharges and storm water overflows, subject to authorisation, it should be noted that the Urban Waste Water Treatment Regulations 2001 were adopted on 14 June 2001, that is to say, almost one year after the date of the supplementary reasoned opinion sent by the Commission. The question whether there has been a failure to fulfil obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see Commission v Italy , cited above, paragraph 20). It must be declared that Ireland has failed to fulfil its obligations in this regard. |
48. It is true that the Court has also held that, where the European Union intends to implement a particular obligation assumed in the context of the agreements concluded in the context of the World Trade Organization (‘the WTO agreements’) or where the EU act at issue refers explicitly to specific provisions of those agreements, the Court should review the legality of the act at issue and the acts adopted for its implementation in the light of the rules of those agreements (see judgments in Fediol v Commission , EU:C:1989:254, paragraphs 19 to 23; Nakajima v Council , EU:C:1991:186, paragraphs 29 to 32; Germany v Council , C‑280/93, EU:C:1994:367, paragraph 111, and Italy v Council , C‑352/96, EU:C:1998:531, paragraph 19) | 29 It ought to be noted in this regard that, in its judgment in Joined Cases 21 to 24/72 International Fruit Company NV and Others v Produktschap voor Groenten en Fruit [1972] ECR 1219, the Court ruled (at paragraph 18) that the provisions of the General Agreement had the effect of binding the Community. The same conclusion must be reached in the case of the Anti-Dumping Code, which was adopted for the purpose of implementing Article VI of the General Agreement and the recitals in the preamble to which specify that it is designed to "interpret the provisions of ... the General Agreement" and to "elaborate rules for their application in order to provide greater uniformity and certainty in their implementation". | 48. The pecuniary nature of the contract means that the contracting authority which has concluded a public works contract receives a service pursuant to that contract in return for consideration. That service consists in the realisation of works from which the contracting authority intends to benefit (see Case C-399/98 Ordine degli Architetti and Others [2001] ECR I‑5409, paragraph 77, and Case C-220/05 Auroux and Others [2007] ECR I‑385, paragraph 45). |