sent0
stringlengths 36
32.8k
⌀ | sent1
stringlengths 8
29.9k
| hardneg
stringlengths 8
32.8k
|
|---|---|---|
33. As regards, first, the basis for calculation of the taxable value, the Court considers that while, as suggested by the Commission, the authorities of a Member State may refer to a guide indicating the average prices of second-hand vehicles in the national market or to a list of average current prices used as a reference in the sector ( Gomes Valente , paragraph 25, and Weigel , paragraph 74), the Hellenic Republic cannot be criticised for taking as a basis the wholesale price of the corresponding vehicle current at the time when the imported vehicle was put into circulation on the international market. | 25 In drawing up those scales, the authorities of a Member State might refer to a guide indicating the average prices of second-hand vehicles in the national market or to a list of average current prices used as a reference in the sector. | 35. Since the FEU Treaty abolished the reasoned opinion stage in infringement proceedings under Article 260(2) TFEU, the reference date for assessing whether there has been an infringement for the purpose of Article 260 TFEU is the date of expiry of the period prescribed in the letter of formal notice issued in accordance with the first subparagraph of Article 260(2) (Case C‑610/10 Commission v Spain EU:C:2012:781, paragraph 67, and Case C‑576/11 Commission v Luxembourg EU:C:2013:773, paragraph 29). |
37 The reason for this mitigation of the burden of proof on the Commission is that it is the State which is best placed to collect and check the data required for the clearance of EAGGF accounts, and which is consequently required to adduce the most detailed and comprehensive evidence that its figures are accurate and, if appropriate, that the Commission's calculations are incorrect (Netherlands v Commission, cited above, paragraph 17; Case C-59/97 Italy v Commission [1999] ECR I-1683, paragraph 55). In the event of a dispute, it is for the Commission to prove that the rules of the common organisation of the agricultural markets have been infringed and, once it has established such an infringement, the Member State concerned must then, if appropriate, demonstrate that the Commission made an error as to the financial consequences to be inferred from that infringement (Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 19, Netherlands v Commission, cited above, paragraph 18, and Case C-59/97 Italy v Commission, cited above, paragraph 55). | 17 The Commission is required not to demonstrate exhaustively that there are irregularities in the data submitted by the Member States but to adduce evidence of serious and reasonable doubt on its part regarding the figures submitted by the national authorities. The reason for this mitigation of the burden of proof on the Commission is that, as pointed out above (paragraph 11), it is the State which is best placed to collect and verify the data required for the clearance of EAGGF accounts; consequently, it is for the State to adduce the most detailed and comprehensive evidence that its figures are accurate and, if appropriate, that the Commission' s calculations are incorrect. | 126. The rules on which both Decision 91/1 and the judgment in Commission v Spain are based are the expression of one of the essential tasks with which the European Union is entrusted under Article 3(3) TEU – namely the establishment of an internal market – and under Protocol No 27 on the internal market and competition, which, pursuant to Article 51 TEU, forms an integral part of the Treaties and under which the internal market is to include a system ensuring that competition is not distorted (see Case C-496/09 Commission v Italy , paragraph 60). |
21. It has been consistently held that, in applying national law, in particular national legislative provisions which were specially introduced in order to transpose a directive, the national court is required to interpret its national law, so far as possible, in the light of the wording and the purpose of the directive (see, in particular, Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26; Case 79/83 Harz [1984] ECR 1921, paragraph 26, and Case C-185/97 Coote [1998] ECR I-5199, paragraph 18). | 26 HOWEVER , THE MEMBER STATES ' OBLIGATION ARISING FROM A DIRECTIVE TO ACHIEVE THE RESULT ENVISAGED BY THE DIRECTIVE AND THEIR DUTY UNDER ARTICLE 5 OF THE TREATY TO TAKE ALL APPROPRIATE MEASURES , WHETHER GENERAL OR PARTICULAR , TO ENSURE THE FULFILMENT OF THAT OBLIGATION , IS BINDING ON ALL THE AUTHORITIES OF MEMBER STATES INCLUDING , FOR MATTERS WITHIN THEIR JURISDICTION , THE COURTS . IT FOLLOWS THAT , IN APPLYING THE NATIONAL LAW AND IN PARTICULAR THE PROVISIONS OF A NATIONAL LAW SPECIFICALLY INTRODUCED IN ORDER TO IMPLEMENT DIRECTIVE NO 76/207 , NATIONAL COURTS ARE REQUIRED TO INTERPRET THEIR NATIONAL LAW IN THE LIGHT OF THE WORDING AND THE PURPOSE OF THE DIRECTIVE IN ORDER TO ACHIEVE THE RESULT REFERRED TO IN THE THIRD PARAGRAPH OF ARTICLE 189 . | 84 It has further observed that working conditions in the different Member States are governed sometimes by provisions laid down by law or regulation and sometimes by agreements and other acts concluded or adopted by private persons. Accordingly, if the scope of Article 48 of the Treaty were confined to acts of a public authority there would be a risk of creating inequality in its application (see Walrave, cited above, paragraph 19). That risk is all the more obvious in a case such as that in the main proceedings in this case in that, as has been stressed in paragraph 24 above, the transfer rules have been laid down by different bodies or in different ways in each Member State. |
82. It should also be recalled that, where an individual is able to rely on a directive as against the State, he may do so regardless of the capacity in which the latter is acting, whether as employer or as public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with EU law (see, to that effect, Marshall , paragraph 49, and Case C‑188/89 Foster and Others [1990] ECR I‑3313, paragraph 17). | 49 IN THAT RESPECT IT MUST BE POINTED OUT THAT WHERE A PERSON INVOLVED IN LEGAL PROCEEDINGS IS ABLE TO RELY ON A DIRECTIVE AS AGAINST THE STATE HE MAY DO SO REGARDLESS OF THE CAPACITY IN WHICH THE LATTER IS ACTING , WHETHER EMPLOYER OR PUBLIC AUTHORITY . IN EITHER CASE IT IS NECESSARY TO PREVENT THE STATE FROM TAKING ADVANTAGE OF ITS OWN FAILURE TO COMPLY WITH COMMUNITY LAW .
| 40. In the context of the reincorporation of losses of a non-resident permanent establishment which have previously been deducted, the Court has made clear that the reincorporation of those losses cannot be dissociated from their having earlier been taken into account. Thus, the Court has held that that reincorporation, in the case of a company with a permanent establishment in a Member State other than that in which it is established and in relation to which that company’s Member State of residence has no power of taxation reflects a logical symmetry. There was thus a direct, personal and material link between the two elements of that tax mechanism, the said reincorporation being the indissociable complement of the deduction previously granted (see, to that effect, judgment in Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt , C‑157/07, EU:C:2008:588, paragraph 42). |
23. Thus, the Court has held that agreements entered into within the framework of collective bargaining between employers and employees and intended to improve employment and working conditions must, by virtue of their nature and purpose, be regarded as not falling within the scope of Article 101(1) TFEU (see, to that effect, judgments in Albany , EU:C:1999:430, paragraph 60; Brentjens’ , EU:C:1999:434, paragraph 57; Drijvende Bokken , EU:C:1999:437, paragraph 47; Pavlov and Others , C‑180/98 to C‑184/98, EU:C:2000:428, paragraph 67; van der Woude , EU:C:2000:475, paragraph 22; and AG2R Prévoyance , C‑437/09, EU:C:2011:112, paragraph 29). | 67 It should be borne in mind that, at paragraphs 64, 61 and 51 respectively of the judgments in Albany, Brentjens' and Drijvende Bokken, the Court held that agreements concluded in the context of collective bargaining between employers and employees and aimed at improving employment conditions are not, by reason of their nature and purpose, to be regarded as falling within the scope of Article 85(1) of the Treaty. | 105. It should also be noted, as the French Republic has pointed out, that the mere fact that one Member State imposes less strict rules than those applicable in another Member State does not mean that the latter are incompatible with Articles 28 EC and 30 EC (see, to that effect, Case C‑514/03 Commission v Spain [2006] ECR I-963, paragraph 49). However, the absence of a prior authorisation scheme with regard to the use of processing aids in the preparation of foodstuffs in all or nearly all of the other Member States may be relevant when assessing the objective justification put forward in relation to the French legislation, and, particularly, with regard to the assessment of its proportionality. |
58 As the Court has already observed, only intervention undertaken in accordance with the Community rules within the framework of the common organisation of agricultural markets is to be financed by the EAGGF (see Case C-48/91 Netherlands v Commission [1993] ECR I-5611, paragraph 14). In that context, it is for the Commission to prove an infringement of the rules on the common organisation of the agricultural markets (see Case 347/85 United Kingdom v Commission [1988] ECR 1749, paragraph 16; Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 13; Case C-55/91 Italy v Commission [1993] ECR I-4813, paragraph 13; and Case C-48/91, cited above, paragraph 18). Accordingly, the Commission is obliged to give reasons for its decision finding an absence of, or defects in, inspection procedures operated by the Member State in question (Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraph 23). | 23 Nevertheless, it should be stated that the Commission is obliged on each occasion to give reasons for its decision finding an absence of, or defects in, inspection procedures operated by the Member State in question . | 22 Furthermore, a reference by a national court can be rejected only if it appears that the procedure laid down by Article 177 of the Treaty has been misused and a ruling from the Court elicited by means of a contrived dispute, or it is obvious that Community law cannot apply, either directly or indirectly, to the circumstances of the case referred to the Court (Case C-28/95 Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2 [1997] ECR I-4161, paragraph 26). |
28. This also constitutes a use in relation to the goods and services of the advertiser ( Google France and Google , paragraphs 67 to 69). That finding is not invalidated by the fact, emphasised in the observations submitted to the Court, that the sign which is identical to the mark – in the present case, the sign ‘portakabin’ – is used not only in relation to the goods under that mark – that is to say, for the resale of units manufactured by Portakabin – but also for goods from other manufacturers, such as, in this instance, units manufactured by Primakabin or by other competitors of Portakabin. On the contrary, use by an advertiser of a sign, which is identical with another person’s trade mark, to suggest to internet users an alternative to the offer from the proprietor of that mark, is use ‘in relation to goods and services’ within the meaning of Article 5(1)(a) of Directive 89/104 ( Google France and Google , paragraphs 70 to 73). | 69. In that situation, characterised by the fact that a sign identical with a trade mark is selected as a keyword by a competitor of the proprietor of the mark with the aim of offering internet users an alternative to the goods or services of that proprietor, there is a use of that sign in relation to the goods or services of that competitor. | 34. That interpretation is confirmed by the judgment in Case C‑467/03 Ikegami [2005] ECR I‑2389, paragraphs 25 and 26, in which the Court held that a machine whose basic equipment enables it to perform automatic data processing must nevertheless be considered to have a specific function within the meaning of Note 5(E) to Chapter 84 of the CN since, as equipped, it cannot be used for purposes other than the recording and reproduction of images and sounds in the course of video surveillance, as it lacks sufficient software. |
30. Therefore, the power of national law, recognised by that directive, to specify the benefits payable by the guarantee institution is conditional upon the requirements flowing from the general principle of equality and non‑discrimination (Case C‑442/00 Rodríguez Caballero [2002] ECR I‑11915, paragraphs 29 to 33, and Case C‑520/03 Olaso Valero [2004] ECR I‑12065, paragraphs 34 and 35). | 30. As regards the existence of such requirements, it should be remembered, first, that according to settled case-law fundamental rights form an integral part of the general principles of law whose observance the Court ensures and, second, that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules. Consequently, Member States must, as far as possible, apply those rules in accordance with those requirements (see Case C-2/92 Bostock [1994] ECR I-955, paragraph 16, and Case C-292/97 Karlsson and Others [2000] ECR I-2737, paragraph 37). | 48. It is for the national court, which alone has jurisdiction to assess the facts and to interpret the national legislation, to determine whether such a justification exists. It is necessary in that regard to ascertain, in light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether those aims appear to be unrelated to any discrimination on grounds of sex and whether those provisions, as a means to the achievement of certain aims, are capable of advancing those aims (see, to this effect, Rinner-Kühn , cited above, paragraph 15, and Steinicke , cited above, paragraph 58). |
17 The Court has consistently held that the duty to consult the Parliament in the cases provided for by the Treaty includes a requirement that the Parliament be reconsulted on each occasion on which the text finally adopted, viewed as a whole, departs substantially from the text on which the Parliament has already been consulted (Case C-65/90 Parliament v Council [1992] ECR I-4593, paragraph 16, and Case C-388/92 Parliament v Council [1994] ECR I-2067). Each amendment referred to by the applicant must therefore be considered. | 16 The case-law of the Court indicates that the duty to consult the European Parliament in the course of the legislative procedure, in the cases provided for by the Treaty, includes the requirement that the Parliament be reconsulted on each occasion when the text finally adopted, viewed as a whole, departs substantially from the text on which the Parliament has already been consulted, except in cases where the amendments essentially correspond to the wishes of the Parliament itself (see the judgments in Case 41/69 Chemiefarma v Commission [1970] ECR 661 and Case 817/79 Buyl v Commission [1982] ECR 245). | 26
In this regard, it must be borne in mind that Directive 77/249, the purpose of which is to facilitate the effective exercise by lawyers of the freedom to provide services (judgment of 19 January 1988, Gullung, 292/86, EU:C:1988:15, paragraph 15), applies, in accordance with the wording of Article 1(1) thereof, to the activities of lawyers pursued by way of provision of services. |
62. Although a public administration following a general practice may be bound by that practice (see, to that effect, Case 268/84 Ferriera Valsabbia v Commission [1987] ECR 353, paragraphs 14 and 15, and 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 211), the fact remains that the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (see, to that effect, Case 188/83 Witte v Parliament [1984] ECR 3465, paragraph 15; Case 134/84 Williams v Court of Auditors [1985] ECR 2225, paragraph 14, and Case C‑51/10 P Agencja Wydawnicza Technopol v OHIM [2011] ECR I‑0000, paragraphs 75 and 76). | 76. Consequently, a person who files an application for registration of a sign as a trade mark cannot rely, to his advantage and in order to secure an identical decision, on a possibly unlawful act committed to the benefit of someone else (see, to that effect, order in Bild digital and ZVS , paragraph 18). | 30. Therefore, the power of national law, recognised by that directive, to specify the benefits payable by the guarantee institution is conditional upon the requirements flowing from the general principle of equality and non‑discrimination (Case C‑442/00 Rodríguez Caballero [2002] ECR I‑11915, paragraphs 29 to 33, and Case C‑520/03 Olaso Valero [2004] ECR I‑12065, paragraphs 34 and 35). |
41. The objective of the provisions of Title II is to ensure, in particular, that the persons concerned are subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and to avoid the complications which may result from that situation (see judgments in Ten Holder , 302/84, EU:C:1986:242, paragraph 19; Luijten , 60/85, EU:C:1986:307, paragraph 12; Bosmann , C‑352/06, EU:C:2008:290, paragraph 16; and Hudzinski and Wawrzyniak , C‑611/10 and C‑612/10, EU:C:2012:339, paragraph 41). | 41. That being so, it should be recalled that, according to settled case-law, the objective of the provisions of Title II of Regulation No 1408/71, which determine the legislation applicable to workers moving within the European Union, is to ensure, in particular, that the persons concerned are, in principle, subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and to avoid the complications which may result from that situation. That principle is expressed, in particular, in Article 13(1) of Regulation No 1408/71 (see, inter alia, Case C-16/09 Schwemmer [2010] ECR I-9717, paragraph 40 and the case-law cited. | 36. It is also settled case-law that all measures which prohibit, impede or render less attractive the exercise of the freedom of establishment must be regarded as restrictions on that freedom (see Case C‑442/02 Caixa Bank France [2004] ECR I‑8961, paragraph 11; Columbus Container Services , paragraph 34; Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt , paragraph 30; and CIBA , paragraph 19). |
42. It must be noted that, according to settled case-law of the Court of Justice, the need for a uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union (Joined Cases C-424/10 and C-425/10 Ziolkowski and Szeja [2011] ECR I-14035, paragraph 32 and the case-law cited). | 32. It must be noted, first, that, according to settled case-law, the need for a uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union (Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43, and Case C‑34/10 Brüstle [2011] ECR I‑0000, paragraph 25). | 21. In fact, the expression ‘paid annual leave’, used by the EU legislature, in, inter alia, Article 7 of Directive 2003/88, means that, for the duration of annual leave within the meaning of that directive, the worker’s remuneration must be maintained. In other words, workers must continue to receive their normal remuneration throughout that period of rest and relaxation (see, Robinson-Steele and Others , C‑131/04 and C‑257/04, EU:C:2006:177, paragraph 50; Schultz-Hoff and Others , EU:C:2009:18, paragraph 58; and Lock , C‑539/12, EU:C:2014:351, paragraph 16). |
59. The activities of collecting societies are subject to the provisions of Article 56 TFEU et seq. relating to the freedom to provide services (see, to that effect, Case 22/79 Greenwich Film Production [1979] ECR 3275, paragraph 12, Case 7/82 GVL v Commission [1983] ECR 483, paragraph 38; and Joined Cases C‑92/92 and C‑326/92 Phil Collins and Others [1993] ECR I‑5145, paragraph 24). | 12 IN FACT , IT IS WELL KNOWN THAT IN CERTAIN MEMBER STATES THE MANAGEMENT OF COMPOSERS ' COPYRIGHTS IS USUALLY ENTRUSTED BY COMPOSERS TO ASSOCIATIONS WHOSE OBJECT IS TO SUPERVISE THE EXERCISE OF SUCH RIGHTS AND TO COLLECT THE CORRESPONDING ROYALTIES OF BEHALF OF ANY COMPOSER WORKING WITHIN THE TERRITORY OF THE MEMBER STATE IN QUESTION . IT IS POSSIBLE IN THOSE CIRCUM STANCES THAT THE ACTIVITIES OF SUCH ASSOCIATIONS MAY BE CONDUCTED IN SUCH A WAY THAT THEIR EFFECT IS TO PARTITION THE COMMON MARKET AND THEREBY RESTRICT THE FREEDOM TO PROVIDE SERVICES WHICH CONSTITUTES ONE OF THE OBJECTIVES OF THE TREATY . SUCH ACTIVITIES ARE THUS CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY , EVEN IF THE MANAGEMENT OF COPYRIGHTS , IN CERTAIN CASES , RELATES ONLY TO THE PERFORMANCE OF MUSICAL WORKS IN NON-MEMBER COUNTRIES . IN CONSIDERING WHETHER ARTICLE 86 IS APPLICABLE THE PERFORMANCE OF CERTAIN CONTRACTS CANNOT BE ASSESSED IN ISOLATION BUT MUST BE VIEWED IN THE LIGHT OF THE ACTIVITIES OF THE UNDERTAKING IN QUESTION AS A WHOLE .
| 6 Regulation No 652/76 was also declared invalid in so far as it fixed the MCAs applicable to maize starch on a basis other than that of the intervention price of maize after deduction of the production refund on starch (see the Roquette Frères judgment, cited above, paragraph 48). |
66. On this point, it should be recalled, first, that in view of the objectives pursued by Regulation No 1049/2001, in particular the fact noted in recital 2 in the preamble that the public right of access to the documents of the institutions is connected with the democratic nature of those institutions and the fact that, as stated in recital 4 in the preamble and in Article 1, the purpose of the regulation is to give the public the widest possible right of access, the exceptions to that right set out in Article 4 of the regulation must be interpreted and applied strictly (see, to that effect, in relation to the legislation prior to Regulation No 1049/2001, Joined Cases C‑174/98 P and C‑189/98 P Netherlands and van der Wal v Commission [2000] ECR I‑1, paragraph 27; Council v Hautala , paragraphs 24 and 25; and, with reference to Regulation No 1049/2001, Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 63). | 63. As they derogate from the principle of the widest possible public access to documents, such exceptions must, as the appellant has correctly observed, be interpreted and applied strictly (see, to that effect, Netherlands and van der Wal v Commission , paragraph 27). | 53. The Court has also held that, on a proper construction, Article 49 EC covers services which the provider offers by telephone to potential recipients established in other Member States and provides without moving from the Member State in which he is established (Case C-384/93 Alpine Investments [1995] ECR I-1141, paragraph 22). |
34 According to the Court's case-law, where a Community authority is called upon, in the performance of its duties, to make complex assessments, it enjoys a wide measure of discretion, the exercise of which is subject to a limited judicial review in the course of which the Community judicature may not substitute its assessment of the facts for the assessment made by the authority concerned. Thus, in such cases, the Community judicature must restrict itself to examining the accuracy of the findings of fact and law made by the authority concerned and to verifying, in particular, that the action taken by that authority is not vitiated by a manifest error or a misuse of powers and that it did not clearly exceed the bounds of its discretion (see, in particular, Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, Case 55/75 Balkan-Import Export v Hauptzollamt Berlin-Packhof [1976] ECR 19, paragraph 8, Case 9/82 hrgaard and Delvaux v Commission [1983] ECR 2379, paragraph 14, Case C-225/91 Matra v Commission [1993] ECR I-3203, paragraphs 24 and 25, and Case C-157/96 National Farmers' Union and Others [1998] ECR I-2211, paragraph 39). | 8 AS THE EVALUATION OF A COMPLEX ECONOMIC SITUATION IS INVOLVED , THE COMMISSION AND THE MANAGEMENT COMMITTEE ENJOY , IN THIS RESPECT , A WIDE MEASURE OF DISCRETION . IN REVIEWING THE LEGALITY OF THE EXERCISE OF SUCH DISCRETION , THE COURT MUST CONFINE ITSELF TO EXAMINING WHETHER IT CONTAINS A MANIFEST ERROR OR CONSTITUTES A MISUSE OF POWER OR WHETHER THE AUTHORITY DID NOT CLEARLY EXCEED THE BOUNDS OF ITS DISCRETION .
| 46. It is true that, when ruling in the context of a reference for a preliminary ruling, the Court of Justice may not rule on the interpretation of national laws or regulations (Case 32/76 Saieva [1976] ECR 1523, paragraph 7; Joined Cases 91/83 and 127/83 Heineken Brouwerijen [1984] ECR 3435, paragraph 10; and Joined Cases C‑92/92 and C‑326/92 Phil Collins and Others [1993] ECR I‑5145, paragraph 13). |
32. Nor is that conclusion affected by the fact that the Member State where the unemployed person was last employed, the obligations of which are suspended and not extinguished for so long as he continues to reside in another Member State, recovers its fundamental competence in the matter should the worker concerned take up residence there ( Cochet , cited above, paragraphs 15 and 16, and Huijbrechts , cited above, paragraph 24). It is moreover to be remembered that in such a situation the factor which determines whether Article 71 of Regulation No 1408/71 applies at all, namely the residence of the person concerned in a Member State other than that to whose legislation he was subject during his last employment (see, in particular, Case C-454/93 Van Gestel [1995] ECR I-1707, paragraph 24), necessarily no longer pertains, so that Article 71(1)(a)(ii) ceases to be applicable ( Huijbrechts , paragraph 28). | 24 According to the wording of Article 71(1)(a)(ii), the Member State in whose territory a frontier worker resides is responsible for paying those benefits `as though' it were the State where he was last employed. While that legal fiction suspends the obligations of the State where the unemployed person was last employed for so long as he continues to reside in another Member State, it does not have the effect of extinguishing them. | 34. Second, where a patent protects a product, in accordance with Article 3(c) of Regulation No 469/2009, only one certificate may be granted for that basic patent (see Biogen , paragraph 28, and Medeva , paragraph 41). |
15. It is only during the phase in which rights are acquired on an incremental basis in accordance with the length of the paid legal employment as set out in the three indents of Article 6(1) of Decision No 1/80 and, therefore, only for the purpose of calculating the various periods of employment necessary for that purpose, that Article 6(2) lays down the effects on those periods of the various causes of interruption of employment (see, to that effect, Case C-434/93 Bozkurt [1995] ECR I‑1475, paragraph 38; Tetik , paragraphs 36 to 39; and Nazli , paragraph 40). | 39 The sole purpose of this latter provision is therefore to prevent a Turkish worker who recommences employment after having been forced to stop working because of long-term illness or unemployment through no fault of his own from being required, in the same way as a Turkish national who has never previously been in paid employment in the Member State in question, to recommence the periods of legal employment envisaged by the three indents of Article 6(1). | 30. With regard to companies, it should be noted that it is their registered office, central administration or principal place of business, within the meaning of Article 48 EC, that serves as the connecting factor with the legal system of a particular Member State, like nationality in the case of natural persons. To accept that the Member State of establishment may freely apply different treatment solely because the registered office, central administration or principal place of business of a company is situated in another Member State would deprive Article 43 EC of its substance (see, to that effect, Case 270/83 Commission v France [1986] ECR 273, paragraph 18; Case C-330/91 Commerzbank [1993] ECR I-4017, paragraph 13; Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 42; Marks & Spencer , paragraph 37; and Test Claimants in Class IV of the ACT Group Litigation , paragraph 43). Freedom of establishment is thus designed to guarantee the benefit of national treatment in the host Member State, by prohibiting all discrimination based on the place where the registered office, central administration or principal place of business of a company is situated ( Commission v France , paragraph 14; Saint-Gobain ZN , paragraph 35; and Test Claimants in Class IV of the ACT Group Litigation , paragraph 43). |
55 In that regard the Court has held that an activity carried on by a private individual is not excluded from the scope of VAT merely because it consists in the performance of acts falling within the prerogatives of the public authority (Case 235/85 Commission v Netherlands, cited above, paragraph 21, and Ayuntamiento de Sevilla, cited above, paragraph 19). The Court held, in paragraph 20 of the latter judgment, that it follows that if a commune entrusts the activity of collecting taxes to an independent third party the exclusion from VAT provided for by Article 4(5) of the Sixth Directive is not applicable. Similarly, the Court held in paragraph 22 of the judgment in Case 235/85 Commission v Netherlands, cited above, that even assuming that in performing their official services notaries and bailiffs in the Netherlands exercise the powers of a public authority by virtue of their appointment to public office, they cannot enjoy the exemption provided for in Article 4(5) of the Sixth Directive because they pursue those activities, not in the form of a body governed by public law, since they are not part of the public administration, but in the form of an independent economic activity carried out in the exercise of a liberal profession. | 19 With regard to the first of those two conditions, the Court has already held in its judgment in Commission v Netherlands (at paragraph 21) that an activity carried on by a private individual is not excluded from the scope of VAT merely because it consists in the performance of acts falling within the prerogatives of the public authority. | 90. In order to determine whether treatment which is equally effective for the patient can be obtained without undue delay in an establishment having an agreement with the insured person's fund, the national authorities are required to have regard to all the circumstances of each specific case and to take due account not only of the patient's medical condition at the time when authorisation is sought and, where appropriate, of the degree of pain or the nature of the patient's disability which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history (see, to that effect, Smits and Peerbooms , paragraph 104). |
24. There could be discrimination within the meaning of the EC Treaty between residents and non-residents only if, notwithstanding their residence in different Member States, it were established that, having regard to the purpose and content of the national provisions in question, the two categories of taxpayers are in a comparable situation (see judgment in Gschwind , C‑391/97, EU:C:1999:409, paragraph 26). | 26 In those circumstances, there could be discrimination within the meaning of the Treaty between residents and non-residents only if, notwithstanding their residence in different Member States, it was established that, having regard to the purpose and content of the national provisions in question, the two categories of taxpayers are in a comparable situation. | 28. As the Court held in paragraph 25 of the judgment in Gravier , the conditions of access to vocational training fall within the scope of the EC Treaty (see also Case C‑65/03 Commission v Belgium [2004] ECR I‑6427, paragraph 25, and Case C‑147/03 Commission v Austria [2005] ECR I‑5969, paragraph 32). |
18. In that connection, it must be recalled that, in accordance with settled case-law, the purpose of the first paragraph of Article 307 EC is to make it clear, in accordance with the principles of international law, that application of the Treaty is not to affect the duty of the Member State concerned to respect the rights of third countries under a prior agreement and to perform its obligations (see Case 812/79 Burgoa [1980] ECR 2787, paragraph 8; Case C-216/01 Budĕjovický Budvar [2003] ECR I‑13617, paragraphs 144 and 145; Case C-205/06 Commission v Austria [2009] ECR I-0000, paragraph 33; and Case C‑249/06 Commission v Sweden [2009] ECR I-0000, paragraph 34). | 144. It follows from the first paragraph of Article 307 EC that rights and obligations under an agreement concluded between a Member State and a non-member country before the date of accession of that Member State are not affected by the Treaty provisions. | 40. The Court has held that the amount of the import duties or export duties remains ‘legally owed’ for the purposes of the first subparagraph of Article 236(1) of the Customs Code even where that amount has not been communicated to the debtor in accordance with Article 221(1) of the code ( Transport Maatschappij Traffic , paragraph 29). |
50 In the event, the Court has already held in Francovich I, cited above, paragraph 46, that the Member State concerned was required to make good loss or damage caused to individuals by the failure to transpose the Directive within the prescribed period. | 42 Subject to that reservation, it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss and damage caused. In the absence of Community legislation, it is for the internal legal order of each Member State to designate the competent courts and lay down the detailed procedural rules for legal proceedings intended fully to safeguard the rights which individuals derive from Community law (see the judgments in Case 60/75 Russo v AIMA [1976] ECR 45, Case 33/76 Rewe v Landwirstschaftskammer Saarland [1976] ECR 1989 and Case 158/80 Rewe v Hauptzollamt Kiel [1981] ECR 1805). | 30 It should also be borne in mind that, according to the fundamental principle which underlies the VAT system, and which follows from Article 2 of the First Directive and Article 2 of the Sixth Directive, VAT applies to each transaction by way of production or distribution after deduction of the VAT directly borne by the various cost components (Midland Bank, paragraph 29, and Abbey National, paragraph 27). |
33. In accordance with settled case‑law, the rights conferred by Directive 2004/38 on third‑country nationals are not autonomous rights of those third‑country nationals, but derived rights, acquired through their status as family members, as defined in Article 2(2) of that directive, of a Union citizen (see McCarthy , paragraph 42; Dereci and Others , paragraph 55; and Case C‑87/12 Ymeraga and Ymeraga-Tafarshiku [2013] ECR, paragraph 31). | 42. Lastly, it should also be noted that, since a Union citizen such as Mrs McCarthy is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, her spouse is not covered by that concept either, given that the rights conferred by that directive on the family members of a beneficiary of that directive are not autonomous rights of those family members, but derived rights, acquired through their status as members of the beneficiary’s family (see, in relation to instruments of European Union law prior to Directive 2004/38, Case C‑243/91 Taghavi [1992] ECR I‑4401, paragraph 7, and Eind , paragraph 23). | 40 A Member State may invoke reasons of public interest to justify a national measure which is likely to obstruct the exercise of the freedom to provide services only if that measure is compatible with the fundamental rights whose observance the Court ensures (see, to that effect, Case C-260/89 ERT [1991] ECR I-2925, paragraph 43, and Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 24). |
44
However, the Court has noted that the exceptions provided for in Article 5 of Directive 2001/29 must be applied in a manner consistent with the principle of equal treatment, affirmed in Article 20 of the Charter of Fundamental Rights of the European Union, which, according to the Court’s established case-law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraphs 31 and 32 and the case-law cited). | 31. It should be noted in that regard that the exceptions provided for in Article 5 of Directive 2001/29 are to be applied in a manner that is consistent with the principle of equal treatment, which is a general principle of EU law, enshrined in Article 20 of the Charter of Fundamental Rights of the European Union (see, with regard to the latter point, judgment in Glatzel , C‑356/12, EU:C:2014:350, paragraph 43). | 115. Having regard to the information provided by the Verwaltungsgericht Gießen and set out in paragraph 19 of this judgment, it should also be noted that, according to consistent case-law, a Member State may not apply a criminal penalty for failure to complete an administrative formality where such completion has been refused or rendered impossible by the Member State concerned, in infringement of EU law ( Placanica and Others , paragraph 69). |
29. It is settled case-law that the provisions of the regulation must be interpreted independently, by reference to its scheme and purpose (see, in relation to the Brussels Convention, Case C-433/01 Blijdenstein [2004] ECR I-981, paragraph 24 and the case-law cited). | 24. It should be remembered that the Convention must be interpreted independently, by reference to its system and objectives (see, in particular, Case C-89/91 Shearson Lehman Hutton [1993] ECR I-139, paragraph 13; Case C-295/95 Farrell [1997] ECR I-1683, paragraphs 12 and 13; Case C-269/95 Benincasa [1997] ECR I-3767, paragraph 12, and Baten , cited above, paragraph 28). | 4 THE REGULATIONS IN FORCE AT THE TIME WERE SILENT IN THIS RESPECT .
THE RULES OF THE COMMON ORGANIZATION OF THE MARKET IN SUGAR MUST BE REGARDED AS FORMING A COMPLETE SYSTEM IN THE SENSE THAT IT DOES NOT LEAVE THE MEMBER STATES THE POWER TO FILL SUCH A LACUNA BY RESORTING TO THEIR NATIONAL LAW .
IT IS THUS PROPER TO SEEK A SOLUTION IN THE LIGHT OF THE AIMS AND OBJECTIVES OF THE COMMON ORGANIZATION OF THE MARKET, TAKING ACCOUNT OF CONSIDERATIONS OF A PRACTICAL AND ADMINISTRATIVE NATURE . |
62. According to settled case-law, the status of citizen of the European Union is destined to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to receive the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard (see, in particular, Case C-224/02 Pusa [2004] ECR I‑5763, paragraph 16; Case C-76/05 Schwarz and Gootjes-Schwarz [2007] ECR I‑6849, paragraph 86; and Case C-524/06 Huber [2008] ECR I‑0000, paragraph 69). | 69. As a preliminary point, it should be noted that, according to settled case-law, citizenship of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to receive the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (see, to that effect, Grzelczyk , paragraphs 30 and 31; Case C‑148/02 Garcia Avello [2003] ECR I‑11613, paragraphs 22 and 23; and Bidar , paragraph 31). | 20. That certificate is – like the substantive rules in Article 14(1)(a) of Regulation No 1408/71 – aimed at facilitating freedom of movement for workers and freedom to provide services (see to that effect FTS , paragraph 48). |
51. None the less, it must be stated that by directing, in the course of proceedings, its action against the provisions of the order of 19 December 2011 which do no more than reproduce the periods of prohibition imposed in the order of 6 March 2001 on the land application of type II and III fertilisers on grasslands planted for more than six months, the Commission did not alter the subject-matter of the dispute (see, to that effect, the judgments in Commission v Belgium , C‑221/03, EU:C:2005:573, paragraph 39, and Commission v France , C‑197/12, EU:C:2013:202, paragraph 26). The Commission’s request for a declaration of failure to fulfil obligations with reference to the provisions of the order of 19 December 2011 which do no more than reproduce the prohibition periods established by the order of 6 March 2001 is admissible.
– Substance | 26. Dans la mesure où le recours de la Commission vise également la version de l’article 262, II, point 2, du CGI résultant de la modification introduite par l’article 70 de la loi n° 2010‑1658 avec effet au 1 er janvier 2011, version entrée en vigueur après l’expiration du délai fixé dans l’avis motivé de la Commission, il convient de rappeler que, en principe, l’existence d’un manquement doit être appréciée en fonction de la situation telle qu’elle se présentait au terme du délai fixé dans cet avis motivé et qu’il ne saurait être tenu compte de l’adoption de mesures législatives, réglementaires ou administratives postérieurement à la date d’expiration dudit délai. Toutefois, il ressort également de la jurisprudence de la Cour que, en cas de modification postérieure de la réglementation nationale mise en cause dans le cadre d’une procédure en manquement, la Commission ne modifie pas l’objet de son recours en imputant les griefs formulés à l’encontre de la réglementation antérieure à celle résultant de la modification adoptée, lorsque les deux versions de la réglementation nationale ont un contenu identique (voir, en ce sens, arrêt du 5 juillet 1990, Commission/Belgique, C‑42/89, Rec. p. I-2821, point 11). Au demeurant, la République française n’a soulevé aucune exception d’irrecevabilité à l’encontre du recours de la Commission. | 103. The concept of an undertaking has been defined by the European Union judicature and designates an economic unit even if in law that economic unit consists of several natural or legal persons (see, to this effect, Akzo Nobel and Others v Commission , paragraph 55, and Elf Aquitaine v Commission , paragraph 53 and the case-law cited). |
105. In that regard, it is important to note, first, that it is settled case-law that, when adopting measures to implement EU legislation, national authorities must exercise their discretion in compliance with the general principles of EU law, which include the principle of proportionality (see, inter alia, Case C‑313/99 Mulligan and Others [2002] ECR I‑5719, paragraphs 35 and 36; Joined Cases C‑231/00, C‑303/00 and C‑451/00 Cooperativa Lattepiú and Others [2004] ECR I‑2869, paragraph 57; and Case C‑496/04 Slob [2006] ECR I‑8257, paragraph 41). | 35 Third, it is settled case-law that where Community rules leave Member States to choose between various methods of implementation, the Member States must exercise their discretion in compliance with the general principles of Community law (Joined Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, paragraph 10). | 37. Jurisdiction based solely on the factual criteria set out by the national court would lead to a multiplication of the potential heads of jurisdiction and would therefore be liable to undermine the predictability of the rules of jurisdiction laid down by the Convention, and consequently to undermine the principle of legal certainty, which is the basis of the Convention (see Case C-256/00 Besix [2002] ECR I‑1699, paragraphs 24 to 26, Case C-281/02 Owusu [2005] ECR I-1383, paragraph 41, and Case C-4/03 GAT [2006] ECR I-0000, paragraph 28). |
65. The Court has already held that that principle is also applicable to infringement proceedings ( Commission v Luxembourg , paragraph 27). | 27. It follows from the case-law that that principle is also applicable to infringement proceedings and that res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question (Case C‑462/05 Commission v Portugal [2008] ECR I‑4183, paragraph 23 and the case-law cited). | 24. S’agissant des taxes frappant les véhicules automobiles, il est constant que les véhicules présents sur le marché dans un État membre sont des «produits nationaux» de celui-ci, au sens de l’article 110 TFUE. Lorsque ces produits sont mis en vente sur le marché des véhicules d’occasion de cet État membre, ils doivent être considérés comme des «produits similaires» aux véhicules d’occasion importés de même type, de mêmes caractéristiques et de même usure. En effet, les véhicules d’occasion achetés sur le marché dudit État membre et ceux achetés, aux fins de l’importation et de la mise en circulation dans celui-ci, dans d’autres États membres, constituent des produits concurrents (arrêt Tatu, précité, point 55 et jurisprudence citée). |
59. It should be recalled that Article 77(1)(a) TFEU states that the European Union is to develop a policy with a view to ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders of the European Union. The abolition of internal border controls forms part of the European Union’s objective, stated in Article 26 TFEU, of establishing an area without internal frontiers in which the free movement of persons is ensured. That aspect of the absence of internal border controls was implemented by the EU legislature by adopting, on the basis of Article 62 EC (now Article 77 TFEU), Regulation No 562/2006 which seeks to build on the Schengen acquis (see, to this effect, judgment in Adil , C‑278/12 PPU, EU:C:2012:508, paragraphs 48 to 50). | 48. It should be recalled that Article 67(2) TFEU, which falls within Title V of the FEU Treaty concerning the area of freedom, security and justice, provides that the Union is to ensure the absence of internal border controls for persons. Article 77(1)(a) TFEU states that the Union is to develop a policy with a view to ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders. | 49. As regards the principle of effectiveness, it is the Court’s settled case-law that every case in which the question arises as to whether a national procedural provision makes the application of European Union law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies (see Asturcom Telecomunicaciones , paragraph 39 and the case-law cited). |
47. Finally, according to consistent case-law, even if the ‘standstill’ clause set out in Article 41(1) of the Additional Protocol is not, in itself, capable of conferring on Turkish nationals – on the basis of Community legislation alone – a right of establishment or, as a corollary, a right of residence, nor a right to freedom to provide services or to enter the territory of a Member State (see Savas , paragraphs 64 and 71, third indent; Abatay and Others , paragraph 62; and Tum and Dari , paragraph 52), the fact remains that such a clause prohibits generally the introduction of any new measures having the object or effect of making the exercise by a Turkish national of those economic freedoms on the territory of that Member State subject to stricter conditions than those which applied to him at the time when the Additional Protocol entered into force with regard to the Member State concerned (see Savas , paragraphs 69 and 71, fourth indent; Abatay and Others , paragraphs 66 and 117, second indent; and Tum and Dari , paragraphs 49 and 53). | 117. In the light of the foregoing considerations, the answer to be given to the referring court is that Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 must be interpreted as meaning that:
─ those two provisions have direct effect in the Member States so that Turkish nationals to whom they apply are entitled to rely on them before the national courts to prevent the application of inconsistent rules of national law;
─ Article 41(1) and Article 13 prohibit generally the introduction of new national restrictions on the right of establishment and the freedom to provide services and freedom of movement for workers from the date of the entry into force in the host Member State of the legal measure of which those articles are part;
─ Article 13 of Decision No 1/80 is applicable to Turkish nationals only if their residence in the territory of the host Member State is not only lawful but for a sufficient period to allow them progressively to become integrated there;
─ in circumstances such as those in the cases in the main proceedings, Article 41(1) of the Additional Protocol is applicable to international road haulage of goods originating in Turkey, where those services are carried out in the territory of a Member State;
─ the protection of Article 41(1) can be relied on not only by an undertaking established in Turkey which performs services in a Member State, but also by the employees of such an undertaking, to preclude a new restriction on the freedom to provide services; however, it may not be relied on to that end by an undertaking established in a Member State where those using the services are established in the same Member State;
─ Article 41(1) precludes the introduction into the national legislation of a Member State of a requirement of a work permit in order for an undertaking established in Turkey to provide services in the territory of that State, if such a permit was not already required at the time of the entry into force of the Additional Protocol;
─ it is for the national court to determine whether the national legislation applied to Turkish nationals such as the applicants in the main proceedings is less favourable than that applicable at the time of the entry into force of the Additional Protocol. | 60
It should be added that Article 27(2) of the directive makes clear that previous criminal convictions cannot in themselves constitute grounds for taking public policy or public security measures, that the personal conduct of the individual concerned must represent a genuine and present threat affecting one of the fundamental interests of society or of the Member State concerned, and that justifications that are isolated from the particulars of the case or that rely on considerations of general prevention cannot be accepted (see, to this effect, judgments of 10 July 2008, Jipa, C‑33/07, EU:C:2008:396, paragraph 23 and 24, and of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 48). |
44. It is not a priori inconceivable that those shareholders may be able to provide relevant documentary evidence enabling the tax authorities of the Member State of taxation to ascertain, clearly and precisely, the reality and nature of tax deductions made in other Member States (see, by analogy, Laboratoires Fournier , paragraph 25 and Persche , paragraph 53). | 53. In that context, the Court has decided that the possibility cannot be excluded a priori that the taxpayer is able to provide relevant documentary evidence enabling the tax authorities of the Member State of taxation to ascertain, clearly and precisely, the nature and genuineness of the expenditure incurred in other Member States (see Case C‑254/97 Baxter and Others [1999] ECR I‑4809, paragraph 20, and Case C‑39/04 Laboratoires Fournier [2005] ECR I‑2057, paragraph 25). | 59. Even if judgments delivered under Article 226 EC were to have the same effects as those delivered under Article 234 EC and, therefore, considerations of legal certainty might, exceptionally, make it necessary to limit their temporal effects (see Case C‑178/05 Commission v Greece [2007] ECR I‑4185, paragraph 67; Case C‑475/07 Commission v Poland [2009] ECR I‑0000, paragraph 61; and Case C‑559/07 Commission v Greece [2009] ECR I‑0000, paragraph 78), it must be stated, in the present case, that the Commission did not at any stage abandon its position in principle. In the declaration which the Commission made during the negotiations relating to Regulation No 150/2003, it expressed its firm intention to maintain its claim to the collection of customs duties which should have been paid for periods prior to the entry into force of that regulation and reserved the right to take the appropriate action in that regard. |
44. It follows unambiguously from the context of the grounds of the judgment in Dellas and Others and of the Order in Vorel that, in the cases giving rise to those decisions, the issue which arose was the effect which the interpretation of ‘working time’ and ‘rest periods’ within the meaning of Directive 93/104 can have on the ‘level’ of pay received by employees performing on-call duties ( Dellas and Others , paragraphs 37 and 38, and the Order in Vorel , paragraph 32). | 38. However, as regards the latter aspect, it must be pointed out at the outset that, as follows from both the purpose and the actual wording of its provisions, Directive 93/104 does not apply to the remuneration of workers. | 23. Il y a, en effet, violation de l’article 90, premier alinéa, CE, lorsque l’imposition frappant le produit importé et celle frappant le produit national similaire sont calculées de façon différente et suivant des modalités différentes aboutissant, ne fût-ce que dans certains cas, à une imposition supérieure du produit importé (arrêt du 18 janvier 2007, Brzeziński, C‑313/05, Rec. p. I‑513, point 29 et jurisprudence citée). |
30 That solution is consistent not only with the approach taken by the Court in Effer v Kanter, cited above, in which it ruled that the plaintiff may invoke the jurisdiction of the courts of the place of performance in accordance with Article 5(1) of the Convention even when the existence of the contract on which the claim is based is in dispute between the parties, but also with the judgment in Case 73/77 Sanders v Van der Putte [1977] ECR 2383, paragraph 15, in which the Court held, in connection with Article 16(1) of the Convention, that, in the matter of tenancies of immovable property, the courts of the State in which the immovable property is situated continue to have jurisdiction even where the dispute is concerned with the existence of the lease. | 15 THE FOREGOING CONSIDERATIONS EXPLAIN THE ASSIGNMENT OF EXCLUSIVE JURISDICTION TO THE COURTS OF THE STATE IN WHICH THE IMMOVABLE PROPERTY IS SITUATED IN THE CASE OF DISPUTES RELATING TO TENANCIES OF IMMOVABLE PROPERTY PROPERLY SO-CALLED , THAT IS TO SAY , IN PARTICULAR , DISPUTES BETWEEN LESSORS AND TENANTS AS TO THE EXISTENCE OR INTERPRETATION OF LEASES OR TO COMPENSATION FOR DAMAGE CAUSED BY THE TENANT AND TO GIVING UP POSSESSION OF THE PREMISES .
| 29. The special regime in dispute cannot be justified by the objective of combating tax avoidance and evasion. According to the Court’s settled case-law, since Directive 69/335 harmonises exhaustively the cases in which the Member States may impose capital duty and does not contain any provision expressly authorising the Member States to take general measures to prevent tax avoidance, the Member States can prevent the application of Community law only in specific circumstances entailing an abusive or fraudulent practice (Case C‑178/05 Commission v Greece [2007] ECR I‑4185, paragraph 32). |
66 In that connection, it is sufficient to note that the Court held in Case C-97/96 Daihatsu Deutschland [1997] ECR I-6843, at paragraphs 14 and 15, that the legislative lacuna left by the First Directive was filled by the Fourth Directive. The Fourth Directive coordinated the national provisions concerning the presentation and content of annual accounts and reports, the valuation methods used therein and their publication in respect of companies limited by shares, including inter alia German limited liability companies. | 14 In that connection, it is sufficient to note that the legislative lacuna left by the First Directive was filled by the Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11, hereinafter `the Fourth Directive'). | 24 It follows that it is not possible to state in general terms, for example by referring to given percentages relating to the degree of recognition attained by the mark within the relevant section of the public, when a mark has a strong distinctive character (see, to that effect, Windsurfing Chiemsee, paragraph 52). |
29 It is thus settled law that that prohibition covers not only charges paid for the registration of new companies, but also those payable by companies for the registration of increases in capital since these, too, are levied on account of an essential formality connected with the legal form of the companies in question. While registration of an increase in capital is not, strictly speaking, a formality required before the commencement of business by a capital company, it is none the less necessary for the carrying on of that business (see, in particular, Case C-134/99 IGI [2000] ECR I-7717, paragraph 23). | 23 The prohibition covers not only charges paid for the registration of new companies, but also duties payable by companies for the registration of increases in capital since these, too, are levied on account of an essential formality connected with the legal form of the companies in question. While registration of an increase in capital is not, strictly speaking, a formality required before the commencement of business by a capital company, it is none the less necessary for the carrying on of that business (Case C-188/95 Fantask and Others v Industriministeriet [1997] ECR I-6783, paragraph 22, and Modelo I, paragraph 25). | 25. However, it is also settled case‑law that, since force majeure does not have the same scope in the various spheres of application of Community law, its meaning must be determined by reference to the legal context in which it is to operate (see, Case C‑124/92 An Bord Bainne Co-operative and Compagnie Inter-Agra [1993] ECR I‑5061, paragraph 10, and Case C‑263/97 First City Trading and Others [1998] ECR I‑5537, paragraph 41). |
40. As is apparent from the very wording of the first paragraph of Article 7 of Decision No 1/80, the acquisition of the rights provided for in that provision is made subject to two prior cumulative conditions, namely, first, that the person concerned must be a member of the family of a Turkish worker who is already duly registered as belonging to the labour force of the host Member State and, second, that he has been authorised by the competent authorities of that State to join that worker there ( Bozkurt , paragraph 26). As stated in paragraphs 21 to 23 of the present judgment, it is common ground that, in the present case, Ms Pehlivan satisfied those conditions. | 26. In order to answer that question, it must be observed, in the first place, that, as is apparent from the very wording of the first paragraph of Article 7 of Decision No 1/80, the acquisition of the rights provided for in that provision is made subject to two prior cumulative conditions, namely, first, that the person concerned must be a member of the family of a Turkish worker who is already duly registered as belonging to the labour force of the host Member State and, secondly, that he has been authorised by the competent authorities of that State to join that worker there. It is common ground that, in the present case, those conditions were met both by Mr Bozkurt and by his spouse. | 30. As the Court has observed, Member States are no longer entitled to attach conditions to the residence of a member of a Turkish worker’s family beyond the period of three years provided for in the first indent of the first paragraph of Article 7 of Decision No 1/80 during which the person concerned must, in principle, actually live with that worker; and that must a fortiori be the case for a migrant Turkish person who satisfies the conditions laid down in the second indent of the first paragraph of Article 7 of Decision No 1/80 (see, in particular, Case C‑329/97 Ergat [2000] ECR I-1487, paragraphs 37 to 39). |
43. In adopting national measures to protect public health within the meaning of Article 30 EC, it is for the Member States to decide what degree of protection they intend to assure thereto (see, to that effect, Case 272/80 Frans-Nederlandse Maatschappij voor Belgische Producten [1981] ECR 3277, paragraph 12, Case C-293/94 Brandsma [1996] ECR I-3159, paragraph 11, and Case C-400/96 Harpegnies [1998] ECR I-5121, paragraph 33). However, those national rules must be proportionate to the objectives pursued (Case 174/82 Sandoz [1983] ECR 2445, paragraph 18, and Harpegnies , paragraph 34). | 34 Nevertheless, the principle of proportionality which underlies the last sentence of Article 36 of the Treaty requires that the power of the Member States to prohibit imports of products from other Member States should be restricted to what is necessary to achieve the objectives of protection being legitimately pursued (see, to that effect, Case 174/82 Sandoz [1983] ECR 2445, paragraph 18). | 52
In the second place, it is clear from the case-law of the Court that Article 101 TFEU does not preclude the Commission, in the exercise of its competence in competition law matters, from finding that there has been an infringement of that article without imposing a fine, although such treatment can be accorded in strictly exceptional situations only, such as where an undertaking’s cooperation has been decisive in detecting and actually suppressing the cartel (see, to that effect, judgment of 18 June 2013, Schenker & Co. and Others, C‑681/11, EU:C:2013:404, paragraphs 48 and 49). |
41. Secondly, with regard to freedom of movement for workers, salaried workers who have carried on an occupation in a Member State other than the Kingdom of Denmark and who are subsequently employed, or seek employment, in the latter Member State will normally have concluded their pension and life assurance contracts or invalidity and sickness insurance contracts with insurers established in the first State. It follows that there is a risk that the provisions in question may operate to the particular detriment of these workers who are, as a general rule, nationals of other Member States (see, to that effect, Case C‑204/90 Bachmann [1992] ECR I‑249, paragraph 9, and Case C‑300/90 Commission v Belgium [1992] ECR I‑305, paragraph 7). | 7 However, it should be noted that workers who have carried on an occupation in one Member State and who are subsequently employed, or seek employment, in another Member State will normally have concluded their life assurance contracts with insurers established in the first State. It follows that there is a risk that the provisions in question may operate to the particular detriment of those workers who are, as a general rule, nationals of other Member States. | 93. Indeed, the Court has taken that step only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that both individuals and national authorities had been led into adopting practices which did not comply with European Union law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the Commission may even have contributed ( Grzelczyk , paragraph 53). |
23
In reliance on the Court’s case-law stemming from the judgment of 23 March 2004 in France v Commission (C‑233/02, EU:C:2004:173, paragraph 40), the Council submits that the fact that a measure is not binding is not sufficient to confer on the Commission the power to adopt it. The Commission does not have the power under Article 17 TEU to sign a non-binding international agreement, such as the 2013 Addendum, on behalf of the Union without the Council’s prior approval. Thus, the Commission has taken upon itself the power to decide on the policy of the Union and infringed the principle of conferral of powers set out in the second sentence of Article 13(2) TEU and, therefore, the principle of institutional balance. | 40. Nevertheless, this judgment cannot be construed as upholding the Commission’s argument that the fact that a measure such as the Guidelines is not binding is sufficient to confer on that institution the competence to adopt it. Determining the conditions under which such a measure may be adopted requires that the division of powers and the institutional balance established by the Treaty in the field of the common commercial policy be duly taken into account, since in this case the measure seeks to reduce the risk of conflict related to the existence of technical barriers to trade in goods. | 12. The legitimacy of pursuing such an objective has also been recognised by the Court, which has stated that the marketing on an exclusive basis of events of high interest to the public is liable to restrict considerably the access of the general public to information relating to those events. However, in a democratic and pluralistic society, the right to receive information is of particular importance, and its importance is all the more evident in the case of such events (see Case C‑283/11 Sky Österreich [2013] ECR I‑0000, paragraphs 51 and 52). |
54. As regards, lastly, the fact that, under the provisions of a DTC, an increase in taxable profits resulting from a re-characterisation of interest may be matched by a corresponding reduction in taxable profits in the State in which the lending company is resident, it is true that, since the tax regime resulting from a DTC forms part of the legal framework applying in the main proceedings and has been presented as such by the national court, the Court must take it into account in order to provide an interpretation of Community law that is relevant to the national court (see, to that effect, Case C-319/02 Manninen [2004] ECR I‑7477, paragraph 21; Case C-265/04 Bouanich [2006] ECR I-923, paragraphs 51 to 55; Test Claimants in Class IV of the ACT Group Litigation , paragraph 71; and Case C-170/05 Denkavit Internationaal and Denkavit France [2006] ECR I-0000, paragraph 45). | 52. With regard to tax treatment under the Franco-Swedish agreement, it should be recalled that a non-resident shareholder such as Ms Bouanich is permitted, under that agreement, as interpreted in the light of the commentaries on the OECD Model Tax Convention, to deduct the nominal value of the shares from the taxable amount payable on the occasion of a repurchase of those shares. The remaining amount is then taxed at the rate of 15%. | 64. According to that judgment, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements, within the Member State of importation, is not such as to hinder trade between Member States so long as, first, those provisions apply to all relevant traders operating within the national territory and, secondly, they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. The reason is that the application of such provisions is not such as to prevent access by the latter products to the market of the Member State of importation or to impede such access more than it impedes access by domestic products (Case C‑384/93 Alpine Investments [1995] ECR I‑1141, paragraph 37). |
70. Secondly, it is nevertheless necessary to recall that Paragraph 2(3) of the AEntG pursues a general-interest objective linked to the social protection of workers in the construction industry and the monitoring of that protection. The Court has already recognised this objective as among the overriding requirements which justify such restrictions on the freedom to provide services (Joined Cases 62/81 and 63/81 Seco and Desquenne & Giral [1982] ECR 223, paragraph 14; Case C-113/89 Rush Portuguesa [1990] ECR I-1417, paragraph 18; Guiot , paragraph 16, and Arblade and Others , paragraph 51). | 16. The public interest relating to the social protection of workers in the construction industry may however, because of conditions specific to that sector, constitute an overriding requirement justifying such a restriction on the freedom to provide services. | 19 Furthermore, pursuant to Article 2(1) of Regulation No 3950/92, read in conjunction with the eighth recital in the preamble to that regulation, it is the producer who owes any additional levy due on all milk that is marketed, that is to say, in accordance with Article 1 of Regulation No 536/93, on quantities of milk which leave any holding and which exceed the reference quantity for direct sales or deliveries. That distinction is taken up again in Article 9(c) of Regulation No 3950/92 where it is used in the definition of a producer as a party selling milk or milk products directly to the consumer or supplying a purchaser or doing both together (Case C-341/89 Ballmann v Hauptzollamt Osnabrück [1991] ECR I-25, paragraph 12). |
76. In that regard, it is necessary to state at the outset that, in accordance with settled case-law, 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 the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (Case C-145/03 Keller [2005] ECR I-2529, paragraph 33; Case C-119/05 Lucchini [2007] ECR I-6199, paragraph 43; and Case C-11/07 Eckelkamp and Others [2008] ECR I-6845, paragraphs 27 and 32). | 43. In this regard, it must be recalled that, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C-326/00 IKA [2003] ECR I-1703, paragraph 27; Case C-145/03 Keller [2005] ECR I-2529, paragraph 33; and Case C-419/04 Conseil général de la Vienne [2006] ECR I-5645, paragraph 19). | 22. The relevant public is that concerned by the Community trade mark, that is to say, depending on the product or service marketed, either the public at large or a more specialised public, for example traders in a specific sector (see, by way of analogy, General Motors , paragraph 24, with regard to Article 5(2) of the directive). |
65. It must be observed in that regard that the obligation to state reasons constitutes an essential procedural requirement which must be distinguished from the question of the merits of those reasons, which concern the substantive legality of the contested measure. The Court has consistently held that the statement of reasons required by Article 253 EC must be adapted to the nature of the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to make the persons concerned aware of the reasons for the measure and the Court to exercise its supervisory jurisdiction (see, inter alia, Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19, Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraph 15, Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 86 and Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63). | 19 THE COURT HAS CONSISTENTLY HELD THAT THE STATEMENT OF REASONS FOR A DECISION ADVERSELY AFFECTING AN UNDERTAKING MUST BE SUCH AS TO ALLOW THE COURT TO REVIEW ITS LEGALITY AND TO PROVIDE THE UNDERTAKING CONCERNED WITH THE INFORMATION NECESSARY TO ENABLE IT TO ASCERTAIN WHETHER OR NOT THE DECISION IS WELL-FOUNDED . THE REQUIREMENTS TO BE SATISFIED BY THE STATEMENT OF REASONS DEPEND ON THE CIRCUMSTANCES OF EACH CASE , IN PARTICULAR THE CONTENT OF THE MEASURE IN QUESTION , THE NATURE OF THE REASONS GIVEN AND THE NEED FOR INFORMATION OF THE UNDERTAKINGS TO WHOM THE MEASURE IS ADDRESSED OR OF OTHER PARTIES TO WHOM IT IS OF DIRECT AND INDIVIDUAL CONCERN WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .
| 79. If it were open to the national court to revise the content of unfair terms included in such contracts, such a power would be liable to compromise attainment of the long-term objective of Article 7 of Directive 93/13. That power would contribute to eliminating the dissuasive effect for sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms, in so far as those sellers or suppliers would still be tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could nevertheless be adjusted, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers ( Banco Español de Crédito EU:C:2012:349, paragraph 69). |
33. The financial resources of a private-law company such as Friulia, 87% of which is held by a public authority such as the Region of Friulia-Venezia Giulia and which acts under the control of that authority, may be regarded as State resources within the meaning of Article 87(1) EC (see, to that effect, Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 32, and Joined Cases 67/85, 68/85 and 70/85 Van der Kooy v Commission [1988] ECR 219, paragraphs 36 and 38). The fact that Friulia participated using its own funds is irrelevant in that regard. For those funds to be categorised as State resources, it is sufficient that, as in the present case, they constantly remain under public control and therefore available to the competent national authorities (see, to that effect, Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 37). | 32 AS THE COMMISSION HAS ITSELF ACKNOWLEDGED , THE GRANTING OF AID , ESPECIALLY IN THE FORM OF CAPITAL HOLDINGS ACQUIRED BY THE STATE OR BY PUBLIC AUTHORITIES , CANNOT BE REGARDED AS BEING AUTOMATICALLY CONTRARY TO THE PROVISIONS OF THE TREATY . THUS , IRRESPECTIVE OF THE FORM IN WHICH AID IS GRANTED , BE IT AS A LOAN OR AS A CAPITAL HOLDING , IT IS THE COMMISSION ' S TASK TO EXAMINE WHETHER IT IS CONTRARY TO ARTICLE 92 ( 1 ) AND , IF SO , TO ASSESS WHETHER THERE IS ANY POSSIBILITY OF ITS BEING EXEMPT UNDER ARTICLE 92 ( 3 ), GIVING THE GROUNDS ON WHICH ITS DECISION IS BASED ACCORDINGLY .
| 36
In that regard, it must be noted that the Court has already held that, in carrying out those regulatory functions, the NRAs have a broad discretion in order to be able to determine the need to regulate a market according to each situation on a case-by-case basis (judgment of 3 December 2009, Commission v Germany, C‑424/07
EU:C:2009:749, paragraph 61 and the case-law cited). This is the case in the context of price control, since recital 20 of the Access Directive states that the method of cost recovery should be appropriate to the circumstances taking account of the need to promote efficiency and sustainable competition and maximise consumer benefits. |
34
Thus, first, the principles of equal treatment and non-discrimination require tenderers to be afforded equality of opportunity when formulating their bids, which therefore implies that the bids of all tenderers must be subject to the same conditions. Secondly, the obligation of transparency is intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. That obligation implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications 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 contract in question (judgments of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 61 and the case-law cited, and of 4 May 2017, Esaprojekt, C‑387/14, EU:C:2017:338, paragraph 36). | 36
Thus, first, the principles of equal treatment and non-discrimination require tenderers to be afforded equality of opportunity when formulating their bids, which therefore implies that the bids of all tenderers must be subject to the same conditions. Second, the principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. That obligation implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 61 and the case-law cited). | 16. In its judgment in Case C-368/96 Generics (UK) and Others [1998] ECR I-7967, paragraph 36, the Court held that a medicinal product is essentially similar to an original medicinal product, for the purposes of Article 4.8(a)(iii) of Directive 65/65, where it satisfies the criteria of having the same qualitative and quantitative composition in terms of active principles, of having the same pharmaceutical form and of being bioequivalent, unless it is apparent in the light of scientific knowledge that it differs significantly from the original product as regards safety or efficacy. |
39. In any event, the decision to refer does not provide sufficient information regarding the main proceedings, in particular regarding the relevant facts, for the Court to determine the relevance of Article 6 of Regulation No 562/2006 for the purposes of examination of that action. Consequently, the Court is not in a position to determine whether the situation of the claimant in the main proceedings is governed by European Union law within the meaning of Article 51(1) of the Charter, whose provisions are addressed to the Member States only when they are implementing European Union law (see, to that effect, Case C-400/10 PPU McB. [2010] ECR I-8965, paragraph 51, and Case C-40/11 Iida [2012] ECR, paragraphs 79 to 81). | 79. To determine whether the German authorities’ refusal to grant Mr Iida a ‘residence card of a family member of a Union citizen’ falls within the implementation of European Union law within the meaning of Article 51 of the Charter, it must be ascertained among other things whether the national legislation at issue is intended to implement a provision of European Union law, what the character of that legislation is, and whether it pursues objectives other than those covered by European Union law, even if it is capable of indirectly affecting that law, and also whether there are specific rules of European Union law on the matter or capable of affecting it (see Case C‑309/96 Annibaldi [1997] ECR I‑7493, paragraphs 21 to 23). | 88. On the other hand, a national provision which merely authorises recourse to successive fixed-term employment contracts in a general and abstract manner by a rule of statute or secondary legislation does not accord with the requirements as stated in the previous paragraph. Such a provision, which is of a purely formal nature, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is capable of achieving the objective pursued and is necessary for that purpose. Such a provision therefore carries a real risk that it will result in misuse of that type of contract and, accordingly, is not compatible with the objective of the Framework Agreement and the requirement that it have practical effect (judgment in Kücük , EU:C:2012:39, paragraphs 28 and 29 and the case-law cited). |
58 When it adopts a regulation such as the 1993 Regulation, a professional body such as the Bar of the Netherlands is neither fulfilling a social function based on the principle of solidarity, unlike certain social security bodies (Poucet and Pistre, cited above, paragraph 18), nor exercising powers which are typically those of a public authority (Sat Fluggesellschaft, cited above, paragraph 30). It acts as the regulatory body of a profession, the practice of which constitutes an economic activity. | 18 Sickness funds, and the organizations involved in the management of the public social security system, fulfil an exclusively social function. That activity is based on the principle of national solidarity and is entirely non-profit-making. The benefits paid are statutory benefits bearing no relation to the amount of the contributions. | 29. It is settled case-law that all measures which prohibit, impede or render less attractive the exercise of the freedom of establishment must be regarded as restrictions of that freedom (see, inter alia, Case C‑79/01 Payroll and Others [2002] ECR I‑8923, paragraph 26; Case C‑442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11; and Case C‑157/07 Krankenheim Ruhesitz am Wannsee‑Seniorenheimstatt [2008] ECR I‑0000, paragraph 30). |
36. Nevertheless, where the proceedings for failure to fulfil obligations have been brought on the basis of Article 228(2) EC and a reasoned opinion has been issued before the date of entry into force of the Treaty of Lisbon, namely 1 December 2009, the reference date is the date of expiry of the period prescribed in the reasoned opinion (see, to that effect, Case C‑533/11 Commission v Belgium EU:C:2013:659, paragraph 32). | 32. In that connection, the reference date which must be used for assessing whether there has been a failure to fulfil obligations under Article 260(1) TFEU is that of the expiry of the period prescribed in the letter of formal notice issued under that provision (Case C‑610/10 Commission v Spain [2012] ECR I‑0000, paragraph 67, and Case C‑241/11 Commission v Czech Republic [2013] ECR I‑0000, paragraph 23). Where, however, the proceedings for failure to fulfil obligations were commenced on the basis of Article 228(2) EC, the reference date for assessing whether there has been a failure to fulfil obligations is the date of expiry of the period prescribed in the reasoned opinion issued before entry into force of the Lisbon Treaty, that is, December 2009 (see, to that effect, Case C‑496/09 Commission v Italy [2011] ECR I‑11483, paragraph 27). | 51. In accordance with the Court’s case-law, the setting of reasonable limitation periods for bringing proceedings must be regarded as satisfying, in principle, the requirement of effectiveness under Directive 89/665, since it is an application of the fundamental principle of legal certainty. The full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringements of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements (judgments in Universale-Bau and Others , C‑470/99, EU:C:2002:746, paragraphs 75 and 76 and the case-law cited; Lämmerzahl , C‑241/06, EU:C:2007:597, paragraphs 50 and 51; and Commission v Ireland , C‑456/08, EU:C:2010:46, paragraphs 51 and 52). |
24 Third, it should also be borne in mind that the Court has consistently held that the rights which the three indents of Article 6(1) confer on a Turkish worker in regard to employment necessarily imply the existence of a right of residence for the person concerned, since otherwise the right of access to the labour market and the right to work as an employed person would be deprived of all effect (Sevince, paragraph 29, Kus, paragraphs 29 and 30, and Bozkurt, paragraph 28). | 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). | 48. The consequences, for all other parts of the agreement or for other obligations flowing from it, of the prohibition of contractual terms incompatible with Article 81 EC are not, however, a matter for Community law. It is therefore for the national court to determine, in accordance with the national law applicable, the extent and consequences, for the contractual relation as a whole, of the prohibition of certain terms under Article 81 EC (see, to this effect, Case 10/86 VAG France [1986] ECR 4071, paragraphs 14 and 15, and Case C-230/96 Cabour [1998] ECR I‑2055, paragraph 51). |
17 According to settled case-law, the procedure provided for in Article 177 of the Treaty is an instrument of cooperation between the Court of Justice and national courts by means of which the former provides the latter with interpretation of such Community law as is necessary for them to give judgment in cases upon which they are called to adjudicate (see inter alia Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR I-3763, paragraph 33, and Case C-231/89 Gmurzynska-Bscher v Oberfinanzdirektion Köln [1990] ECR I-4003, paragraph 18). | 18 The procedure provided for in Article 177 of the Treaty is therefore an instrument of cooperation between the Court of Justice and national courts by means of which the former provides the latter with interpretation of such Community law as is necessary for them to give judgment in cases upon which they are called to adjudicate . | 34. That broad construction of the concept of ‘re-utilisation’ is lent support by the objective pursued by the Community legislature through the establishment of a sui generis right (see, to that effect, as regards the concept of extraction, Directmedia Publishing , paragraph 32). |
25 Accordingly, the Court held that the option, available to Member States under Article 2(2) of Decision 88/408 but subject to the conditions referred to in the Annex thereto, of derogating from the standard levels of the fees laid down by Article 2(1), did not deprive that provision of direct effect (Hansa Fleisch, cited above, paragraphs 16 and 17). | 17 Consequently, the fact that Article 2(2) of Decision 88/408 allows the Member States the possibility of setting higher fees by way of derogation from the standard levels of fees provided for by Article 2(1) of that decision cannot deprive that provision of direct effect. | 52. En ce qui concerne, enfin, la seconde branche du premier moyen, il convient de rappeler qu’il résulte des articles 256, paragraphe 1, second alinéa, TFUE, 58, premier alinéa, du statut de la Cour de justice de l’Union européenne ainsi que 168, paragraphe 1, sous d), et 169, paragraphe 2, du règlement de procédure de celle-ci qu’un pourvoi doit indiquer de façon précise les éléments critiqués de l’arrêt dont l’annulation est demandée ainsi que les arguments juridiques qui soutiennent de manière spécifique cette demande (voir arrêt du 11 avril 2013, Mindo/Commission, C‑652/11 P, non encore publié au Recueil, point 21 et jurisprudence citée). |
47. By contrast, it is incompatible with the rules governing the right to deduct under that directive, as noted in paragraphs 37 to 40 of the present judgment, to impose a penalty, in the form of refusing that right to a taxable person who did not know, and could not have known, that the transaction concerned was connected with fraud committed by the supplier, or that another transaction forming part of the chain of supply prior or subsequent to that transaction carried out by the taxable person was vitiated by VAT fraud (see, to that effect, Optigen and Others , paragraphs 52 and 55, and Kittel and Recolta Recycling , paragraphs 45, 46 and 60). | 55. Therefore, the answer to the first question referred for a preliminary ruling in each case should be that transactions such as those at issue in the main proceedings, which are not themselves vitiated by VAT fraud, constitute supplies of goods or services effected by a taxable person acting as such and an economic activity within the meaning of Articles 2(1), 4 and 5(1) of the Sixth Directive, where they fulfil the objective criteria on which the definitions of those terms are based, regardless of the intention of a trader other than the taxable person concerned involved in the same chain of supply and/or the possible fraudulent nature of another transaction in the chain, prior or subsequent to the transaction carried out by that taxable person, of which that taxable person had no knowledge and no means of knowledge. The right to deduct input VAT of a taxable person who carries out such transactions cannot be affected by the fact that in the chain of supply of which those transactions form part another prior or subsequent transaction is vitiated by VAT fraud, without that taxable person knowing or having any means of knowing.
The second questions | 41. It should be added that, even if a combination of colours which it is sought to register as a trade mark satisfies the requirements for constituting a trade mark for the purposes of Article 2 of the Directive, it is still necessary for the competent authority for registering trade marks to decide whether the combination claimed satisfies the other requirements laid down, particularly in Article 3 of the Directive, for registration as a trade mark in relation to the goods or services of the undertaking which has applied for its registration. That examination must take account of all the relevant circumstances of the case, including any use which has been made of the sign in respect of which trade mark registration is sought ( Libertel , paragraph 76, and Case 363/99 Koninklijke KPN Nederland [2004] ECR I-0000, paragraph 37). That examination must also take account of the public interest in not unduly restricting the availability of colours for other traders who market goods or services of the same type as those in respect of which registration is sought ( Libertel , paragraphs 52 to 56). |
In particular, in the judgment of 9 September 2010, OHIM v BORCO-Marken-Import Matthiesen (C‑265/09 P, EU:C:2010:508), cited by the appellant in support of its argument, the Court reaffirmed its settled case-law according to which the distinctive character of a mark must always be assessed specifically by reference to the goods or services designated (judgment of 9 September 2010, OHIM v BORCO-Marken-Import Matthiesen, C‑265/09 P, EU:C:2010:508, paragraph 35 and case-law cited). Similarly, although the Court did establish in that judgment that there are certain categories of signs, including single letters, which are less likely prima facie to have distinctive character initially, it did not, however, establish a general, abstract rule that the distinctiveness of such letters must, in all cases, be considered to be weak. On the contrary, the Court reaffirmed the obligation on trade mark authorities to carry out an examination of this matter based on the facts (see, to that effect, judgment of 9 September 2010, OHIM v BORCO-Marken-Import Matthiesen, C‑265/09 P, EU:C:2010:508, paragraph 37). | 37. In that regard, it should be pointed out that, even though it is apparent from the case‑law cited that the Court has recognised that there are certain categories of signs which are less likely prima facie to have distinctive character initially, the Court, nevertheless, has not exempted the trade mark authorities from having to carry out an examination of their distinctive character based on the facts. | Deuxièmement, il convient de rappeler que, si des points de droit examinés en première instance peuvent être de nouveau discutés au cours de la procédure de pourvoi dès lors qu’un requérant conteste, de manière spécifique, l’interprétation ou l’application du droit de l’Union faite par le Tribunal (voir, en ce sens, arrêts du 30 mai 2013, Quinn Barlo e.a./Commission, C‑70/12 P, non publié, EU:C:2013:351, point 27, ainsi que du 19 janvier 2017, Commission/Total et Elf Aquitaine, C‑351/15 P, EU:C:2017:27, point 31), un pourvoi est irrecevable dans la mesure où il se limite à répéter les moyens et les arguments qui ont déjà été présentés devant le Tribunal, y compris ceux qui étaient fondés sur des faits expressément rejetés par cette juridiction, sans même comporter une argumentation visant spécifiquement à identifier l’erreur de droit dont serait entaché l’arrêt du Tribunal. En effet, un tel pourvoi constitue, en réalité, une demande visant à obtenir un simple réexamen de la requête présentée devant le Tribunal, ce qui échappe à la compétence de la Cour dans le cadre d’un pourvoi (arrêts du 7 janvier 2004, Aalborg Portland e.a./Commission,C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P et C‑219/00 P, EU:C:2004:6, point 51, ainsi que du 26 janvier 2017, Mamoli Robinetteria/Commission, C‑619/13 P, EU:C:2017:50, point 43). |
33. The Court has consistently held in that regard that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon by individuals as against the State, particularly in its capacity as an employer (see, in particular, to that effect, Case 152/84 Marshall [1986] ECR 723, paragraphs 46 and 49; Case C‑187/00 Kutz-Bauer [2003] ECR I‑2741, paragraphs 69 and 71; and Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 57). | 57. The Court has consistently held in that regard that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon by individuals as against the State, particularly in its capacity as an employer (see, in particular, to that effect, Case 152/84 Marshall [1986] ECR 723, paragraphs 46 and 49, and Case C‑187/00 Kutz-Bauer [2003] ECR I‑2741, paragraphs 69 and 71). | 22
In that regard, it should be noted that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its 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 (judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 26 and the case-law cited). |
153
It should be recalled, first, that the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, inter alia, judgments of 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 25 and the case-law cited, and of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 23 and the case-law cited). Moreover, such a 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 evidence (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 23 and the case-law cited). | 23
It should be observed that, according to the settled case-law of the Court of Justice, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. That assessment does not, therefore, constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (judgment of 20 January 2016 in Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 40). Moreover, such a 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 evidence (judgment of 28 January 2016 in Éditions Odile Jacob v Commission, C‑514/14 P, EU:C:2016:55, paragraph 73 and the case-law cited). | 47. Furthermore, the Court has held that national courts must offer to individuals entitled to rely on disregard of the obligation of notification the certain prospect that all appropriate conclusions will be drawn, in accordance with national law, with regard to both the validity of the acts giving effect to the aid and the recovery of financial support granted in disregard of that provision or possible interim measures ( Fédération Nationale du Commerce Extérieur des Produits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon , paragraph 12, Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , paragraphs 26 and 27; van Calster and Others , paragraph 64; and Case C‑71/04 Xunta de Galicia [2005] ECR I‑7419, paragraph 50). |
37. Secondly, it is necessary to examine whether the assistance at issue is granted to the public servant by reason of the latter’s employment. It follows from settled case-law that, in order to determine whether a benefit comes within the scope of Article 157 TFEU, the one criterion which may prove decisive is whether the benefit was granted to the worker by reason of his employment relationship, and all the more so because this is the only criterion which is based on the wording of that provision itself (see, with regard to retirement pensions, Maruko , paragraph 46 and the case-law cited). | 46. Moreover, for the purposes of assessing whether a retirement pension – by reference to which, should the case arise, as in the present case, the survivor’s pension is calculated – falls within the scope of Article 141 EC, the Court has stated that, of the criteria for identifying a pension scheme which it has adopted on the basis of the situations brought before it, the one criterion which may prove decisive is whether the retirement pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment, based on the wording of that article (see, to that effect, Beune , paragraph 43; Evrenopoulos , paragraph 19; Case C‑366/99 Griesmar [2001] ECR I‑9383, paragraph 28; Case C‑351/00 Niemi [2002] ECR I‑7007, paragraphs 44 and 45; and Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker [2003] ECR I‑12575, paragraph 56). | 58. In the second place, it must be recalled that, in paragraph 32 of the judgment in Sodemare and Others , EU:C:1997:301, the Court held that a Member State may, in the exercise of the powers it retains to organise its social security system, consider that a social welfare system for elderly people necessarily implies, with a view to attaining its objectives, that the admission of private operators to that system as providers of social welfare services is to be made subject to the condition that they are non-profit-making. |
52. The method of treatment or use of a substance does not determine conclusively whether or not it is to be classified as waste. What subsequently happens to an object or a substance does not affect its nature as waste, which, in accordance with the first subparagraph of Article 1(a) of Directive 75/442, is defined in terms of the holder discarding it or intending or being required to discard it ( ARCO Chemie Nederland and Others , paragraph 64). | 64 As the Court has already pointed out, the method of treatment or use of a substance does not determine conclusively whether or not it is to be classified as waste. What subsequently happens to an object or a substance does not affect its nature as waste, which, in accordance with Article 1(a) of the directive, is defined in terms of the holder discarding it or intending or being required to discard it. | 24 According to the Court' s case-law (see, in particular, Case C-135/93 Spain v Commission [1995] ECR I-1651, paragraph 20), an action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects. |
94. Articles 92(3)(c) and 93 of the Treaty expressly state that the Commission "may" consider aid covered by the first of those two provisions to be compatible with the common market. Accordingly, whilst the Commission must always determine whether State aid subject to review by it is compatible with the common market, even if that aid has not been notified to it (see Case C-301/87 France v Commission (the "Boussac Saint Frères " case) [1990] ECR I-307, paragraphs 15 to 24), it is not bound to declare such aid compatible with the common market. | 17 The Court has also held ( see the judgment of 9 October 1984 in Joined Cases 91/83 and 127/83 Heineken Brouwerijen BV v Inspecteurs der Vennootschapsbelasting, Amsterdam and Utrecht (( 1984 )) ECR 3435 ) that the purpose of the first sentence of Article 93(3 ) of the Treaty is to provide the Commission with the opportunity to review, in sufficient time and in the general interest of the Communities, any plan to grant or alter aid . The final sentence of Article 93(3 ) of the Treaty constitutes the means of safeguarding the machinery for review laid down by that article, which, in turn, is essential for ensuring the proper functioning of the common market . The prohibition laid down in that article on putting any proposed measures into effect is designed to ensure that a system of aid cannot become operational before the Commission has had a reasonable period in which to study the proposed measures in detail and, if necessary, to initiate the procedure provided for in Article 93(2 ). | 35. At the outset it must be recalled that the Council has conferred upon the Commission, acting in cooperation with the customs experts of the Member States, a broad discretion to define the subject-matter of tariff headings falling to be considered for the classification of particular goods. However, the Commission’s power to adopt the measures mentioned in Article 9(1)(a), (b), (d) and (e) of Regulation No 2658/87 does not authorise it to alter the subject-matter of the tariff headings which have been defined on the basis of the HS established by the Convention whose scope the Community has undertaken, under Article 3 thereof, not to modify (see Case C-267/94 France v Commission [1995] ECR I‑4845, paragraphs 19 and 20; Case C-309/98 Holz Geenen [2000] ECR I-1975, paragraph 13; and Joined Cases C-304/04 and C‑305/04 Jacob Meijer and Eagle International Freight [2005] ECR I-6251, paragraph 22). |
25. The Court may also, of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure, in accordance with Article 61 of the Rules of Procedure, if it considers that it lacks sufficient information or that the case should be decided on the basis of an argument which has not been debated between the parties (see Case C-309/99 Wouters and Others [2002] ECR I-1577, paragraph 42, and Case C-470/00 P Parliament v Ripa di Meana and Others [2004] ECR I-0000, paragraph 33). In the present case, however, the Court, after hearing the Advocate General, considers that it has all the information necessary for it to answer the questions referred for a preliminary ruling. The application for the oral procedure to be reopened must therefore be dismissed.
The questions referred for a preliminary ruling
Question 2 | 42 The Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see order in Case C-17/98 Emesa Sugar [2000] ECR I-665, paragraph 18). | 51. There are accordingly no grounds for setting aside the judgment under appeal in that regard, notwithstanding the error of law vitiating paragraph 59 thereof (see, in this connection, Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraph 122; Case C-93/02 P Biret International v Council [2003] ECR I‑10497, paragraph 60; and Case C-94/02 P Biret et Cie v Council [2003] ECR I‑10565, paragraph 63). |
82. In that regard, it is sufficient to refer to the established case-law that European Union competition law refers to the activities of undertakings (see, inter alia, 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), that the concept of an undertaking must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see, inter alia, Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 40) and that, when such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement ( Akzo Nobel and Others v Commission , paragraph 56 and the case-law cited). | 56. When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, to that effect, Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 145; Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 78; and Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 39). | 69. Thus it has been held that a refusal to allow the parent, whether a national of a Member State or of a third country, who is the carer of a minor child who is a Union citizen to reside with that child in the host Member State would deprive the child’s right of residence of any useful effect, since enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence ( Zhu and Chen , paragraph 45). |
33. It is clear from settled case‑law that, for a trade mark to possess distinctive character for the purposes of that provision, it must serve to identify the goods in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish those goods from those of other undertakings ( Procter & Gamble v OHIM , paragraph 32; OHIM v Erpo Möbelwerk , paragraph 42; Case C‑144/06 P Henkel v OHIM [2007] ECR I‑8109, paragraph 34; and Case C‑304/06 P Eurohypo v OHIM [2008] ECR I‑3297, paragraph 66). | 42. It is also clear from the case-law that the distinctiveness of a trade mark within the meaning of Article 7(1)(b) of Regulation No 40/94 means that the mark in question makes it possible to identify the product for which registration is sought as originating from a given undertaking and therefore to distinguish the product from those of other undertakings and, therefore, is able to fulfil the essential function of the trade mark (see, to that effect, in particular Procter & Gamble v OHIM , paragraph 32, and the case-law there cited, and, in relation to the same provision contained in Article 3(1)(b) of Directive 89/104, Merz & Krell, paragraph 37, and Linde and Others , paragraph 40, and the case-law there cited). | 29. As regards, more specifically, betting and gaming, the Court has ruled that Article 135(1)(i) of the VAT Directive – which provides, inter alia, that forms of gambling may be exempted from VAT ‘subject to the conditions and limitations laid down by each Member State’ – must be interpreted as meaning that the exercise of the discretionary power of the Member States to fix conditions and limitations on the VAT exemption provided for under that provision allows those States to exempt from that tax only certain forms of betting and gaming (Case C‑58/09 Leo-Libera [2010] ECR I‑5189, paragraph 39). |
108. That aim is apparent from the seventh recital in the preamble to Regulation No 2081/92 (Joined Cases C‑129/97 and C‑130/97 Chiciak and Fol [1998] ECR I‑3315, paragraphs 25 and 26), which is essentially identical to the sixth recital in the preamble to Regulation No 510/2006, which states:
‘Provision should be made for a Community approach to designations of origin and geographical indications. A framework of Community rules on a system of protection permits the development of geographical indications and designations of origin since, by providing a more uniform approach, such a framework ensures fair competition between the producers of products bearing such indications and enhances the credibility of the products in the consumer’s eyes.’ | 25 According to the seventh and twelth recitals in its preamble, the 1992 regulation is intended to ensure uniform protection within the Community of geographical names which comply with it. Furthermore, that uniform protection results from registration carried out in accordance with the rules specifically laid down by the regulation. | 69. With regard to judicial review of the conditions referred to in the previous paragraph, it should be noted that the Community legislature must be allowed a broad discretion in an area such as that in issue in the present case, which involves political, economic and social choices on its part, and in which it is called on to undertake complex assessments. Consequently, the legality of a measure adopted in that area can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue (see, in this regard, Arnold André , paragraph 46, Swedish Match , paragraph 48, and Alliance for Hatural Health and Others , cited above, paragraph 52).
Observations submitted to the Court |
24. Secondly, it must be recalled that, as recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship. The EU legislature accordingly made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State (see Case C-162/09 Lassal [2010] ECR I-9217, paragraphs 32 and 37). | 32. As recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship. | 68. The principle of transparency is stated in Articles 1 TEU and 10 TEU and in Article 15 TFEU. It enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (see Case C‑41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 39, and Case C‑28/08 P Commission v Bavarian Lager [2010] ECR I‑0000, paragraph 54). |
14 The pleas in law and arguments put forward by the Greek Government to justify the regularity of the expenditure correspond essentially to those put forward in Greece v Commission (Case C-46/97) in respect of the clearance of the accounts for 1992. As the Court has rejected those pleas and arguments in paragraphs 4 to 26 of the judgment delivered today in Case C-46/97, they must also be rejected, for the same reasons, in the present case. | 11 Third, in Greece v Commission, cited above, and in Case C-61/95 Greece v Commission [1998] ECR I-207, paragraph 12, the Court has already rejected the Greek Government's argument that it was absolutely impossible to establish a register of olive cultivation. In fact the Government did not raise those arguments until after the date laid down in Regulation No 3453/80 and did not make any approach to the Community authorities to vary that date (see, in that regard, Case C-353/92 Greece v Council [1994] ECR I-3411, paragraph 39). | 28
The Court observes in that regard that an activity can be considered to comply with Article 6(2) of Directive 92/43 only if it is guaranteed that it will not cause any disturbance that is likely significantly to affect the objectives of the directive, in particular its objectives concerning the conservation of natural habitats and of wild fauna and flora. In order to find an infringement of Article 6(2) of Directive 92/43, the Commission must demonstrate to a sufficient legal standard that the Member State concerned has not taken the appropriate protective measures to prevent the operational activities of projects — in so far as these took place after designation of the site in question — from giving rise to deterioration of the habitats of the species concerned and disturbance of those species likely to have significant effects in view of the directive’s objective of ensuring the conservation of those species (see, by analogy, judgment of 14 January 2016, Commission v Bulgaria, C‑141/14, EU:C:2016:8, paragraphs 56 and 57 and the case-law cited). |
14 In this respect, the Court has consistently held (see, most recently, the judgments in Case C-154/89 Commission v France [1991] ECR I-659, paragraph 12, Case C-180/89 Commission v Italy [1991] ECR I-709, paragraph 15, and Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 16) that Article 59 of the Treaty entails, in the first place, the abolition of any discrimination against a person providing services on account of his nationality or the fact that he is established in a Member State other than the one in which the service is provided. | 15 Articles 59 and 60 of the Treaty require not only the abolition of any discrimination against a person providing services on account of his nationality but also the abolition of any restriction on the freedom to provide services imposed on the ground that the person providing a service is established in a Member State other than the one in which the service is provided. In particular, the Member State cannot make the performance of the services in its territory subject to observance of all the conditions required for establishment; were it to do so the provisions securing freedom to provide services would be deprived of all practical effect. | 24
In such a situation, it will nonetheless be for that court to interpret domestic law, so far as possible, in the light of the wording and the purpose of Directive 2004/18 in order to achieve the result sought in the second indent of Article 48(2)(a)(ii) of that directive and consequently comply with the third paragraph of Article 288 TFEU (see, to that effect, judgments of 24 January 2012 in Dominguez, C‑282/10, EU:C:2012:33, paragraph 24 and the case-law cited, and 19 April 2016 in DI, C‑441/14, EU:C:2016:278, paragraph 31). |
22. The harmonised system of civil liability on the part of producers for damage caused by defective products, established by Directive 85/374, is intended, as is clear from the first recital in the preamble thereto, to ensure undistorted competition between economic operators, to facilitate the free movement of goods and to avoid differences in levels of consumer protection. The limits set by the European Union (‘EU’) legislature to the scope of the directive are the result of a complex balancing of, inter alia, those different interests (see, to that effect, Commission v France , paragraphs 17 and 29, and Commission v Greece , paragraphs 13 and 29). | 13 In that connection it should be pointed out first that, as is clear from the first recital thereto, the purpose of the Directive in establishing a harmonised system of civil liability on the part of producers in respect of damage caused by defective products is to ensure undistorted competition between traders, to facilitate the free movement of goods and to avoid differences in levels of consumer protection. | 62. Thus, in the last sentence of paragraph 48 of the judgment in Simap , the Court expressly referred to that characteristic from which it necessarily follows that it proceeded on the basis that doctors on call at the hospital do not actually perform their professional duties uninterruptedly during the whole period of on-call duty. |
50
Next, it should be recalled that, according to settled case-law, under the principle of sincere cooperation laid down in Article 4(3) TEU it is for the courts of the Member States to ensure judicial protection of a person’s rights under EU law. In addition, Article 19(1) TEU requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law (judgment of 19 November 2014, ClientEarth, C‑404/13, EU:C:2014:2382, paragraph 52). In the case of administrative decisions adopted within the framework of Article 6(3) of Directive 92/43, that obligation also stems from Article 47 of the Charter. | 52. As regards Article 4 TEU, it should be recalled that according to settled case-law, under the principle of sincere cooperation laid down in paragraph 3 of that article, it is for the Member States to ensure judicial protection of an individual’s rights under EU law (see, to that effect, inter alia the judgment in Unibet , C‑432/05, EU:C:2007:163, paragraph 38). In addition, Article 19(1) TEU requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law. | 45 On the other hand, since those rules are, according to the findings of the national court, binding on the members of the ABI, they limit the contractual freedom of the banks by preventing them from offering to customers who apply for a credit facility more favourable conditions for the associated guarantee contract. The latter, however, is merely ancillary to the principal contract, of which in practice it is usually a precondition (see Case C-45/96 Dietzinger [1998] ECR I-I-1199, paragraph 18). |
37. It is settled case-law that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia , Case C-415/93 Bosman [1995] ECR I-4921, paragraphs 59 to 61, Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20, and Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraphs 38 and 39). | 59 As to those submissions, it is to be remembered that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 177 of the Treaty, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C-125/94 Aprile v Amministrazione delle Finanze dello Stato [1995] ECR I-0000, paragraphs 16 and 17). | 34. It should be noted that, for a derogation from the prohibition of the use of limed twigs to capture birds, instituted in a Member State, to comply with Article 9(1)(c) of the directive, it must, in any event, be applied selectively and cover the capture of birds in small numbers only (see, to that effect, Case 252/85 Commission v France [1988] ECR 2243, paragraph 28). |
48
In the second place, the original transmission made by the broadcasting organisation, on the one hand, and that made by the service provider at issue in the main proceedings, on the other, are made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for its public (see, to that effect, judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 39). | 39. By contrast, the main proceedings in the present case concern the transmission of works included in a terrestrial broadcast and the making available of those works over the internet. As is apparent from paragraphs 24 to 26 above, each of those two transmissions must be authorised individually and separately by the authors concerned given that each is made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for a public. In those circumstances, it is no longer necessary to examine below the requirement that there must be a new public, which is relevant only in the situations on which the Court of Justice had to rule in the cases giving rise to the judgments in SGAE , Football Association Premier League and Others and Airfield and Canal Digitaal . | 20. The Court has already ruled that, in so far as Directive 93/42 constitutes a harmonisation measure adopted pursuant to Article 100a of the EEC Treaty (which became Article 100a of the EC Treaty; now, after amendment, Article 95 EC), it is intended to promote the free movement of medical devices which have been certified as being in compliance with that directive, precisely by replacing the various measures which have been taken in this field in the Member States, and which may amount to an obstacle to that free movement (Case C‑6/05 Medipac-Kazantzidis [2007] ECR I‑4557, paragraph 51). |
29. In order to answer the question referred, it should be noted that, with respect to the application of the CN, the Council of the European Union has conferred upon the Commission, acting in cooperation with the customs experts of the Member States, broad discretion to define the subject-matter of tariff headings falling to be considered for the classification of particular goods. However, the Commission’s power to adopt the measures mentioned in Article 9(1)(a) of Regulation No 2658/87, like the classification of the goods, does not authorise it to alter the subject-matter of the tariff headings which have been defined on the basis of the HS established by the HS convention whose scope the European Union has undertaken, under Article 3 thereof, not to modify (see, to that effect, judgments in France v Commission , C‑267/94, EU:C:1995:453, paragraphs 19 and 20; Kawasaki Motors Europe , C‑15/05, EU:C:2006:259, paragraph 35; and Dinter and Europol Frost-Food , C‑522/07 and C‑65/08, EU:C:2009:663, paragraph 32). | 32. It is appropriate to note in that regard that, according to settled case‑law, the Council has conferred upon the Commission, acting in cooperation with the customs experts of the Member States, a broad discretion to define the subject-matter of tariff headings falling to be considered for the classification of particular goods. However, the Commission’s power to adopt the measures mentioned in Article 9(1)(a), (b), (d) and (e) of Regulation No 2658/87, such as additional notes, does not authorise it to alter the subject-matter of the tariff headings which have been defined on the basis of the HS – established by the Convention on the HS – whose scope the Community has undertaken, under Article 3 thereof, not to modify (Case C‑267/94 France v Commission [1995] ECR I‑4845, paragraphs 19 and 20, and Case C‑15/05 Kawasaki Motors Europe [2006] ECR I‑3657, paragraph 35). | 6 In that regard according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, in particular, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26). |
30. The Court has interpreted this passage as intended by the legislature, namely as meaning that the exercise by a person having the care of children, and, in particular, by the spouse of the person entitled in pursuance of Article 73 of Regulation No 1408/71, of a professional or trade activity in the Member State of residence of the children suspends, under Article 10 of Regulation No 574/72, the right to allowances in pursuance of Article 73 of Regulation No 1408/71 up to the amount of the allowances of the same kind actually paid by the Member State of residence, irrespective of who is designated as directly entitled to the family allowances by the legislation of the Member State of residence ( McMenamin , paragraphs 20 to 27). | 23 The intention of the Council, as is apparent from the thirteenth and fourteenth recitals in the preamble to Regulation No 1660/85 and in the light of paragraph 17 of the Robards judgment, was to extend, not to limit, the cases in which benefits due in pursuance of Article 73 of Regulation No 1408/71 were to be suspended. Those recitals state:
"the rule in Article 10 of Regulation (EEC) No 574/72, which provides that the right to family benefits arises under the legislation of the Member State in the territory of which the children reside, takes effect solely where the person who exercises the professional or trade activity in the Member State of residence activating the transfer of priority is the spouse of the employed or formerly employed person, whether that spouse is himself or herself entitled to the benefits or not;
... those provisions have been seen to operate unfairly in circumstances in which the person entitled to the benefit and exercising the professional or trade activity was not or was no longer the spouse of the employed or formerly employed person; ... these provisions should therefore be amended so as to correct this anomaly". | 54. Moreover, the Court has already held, in the context of a dispute between a member of the auxiliary staff and the Commission, that the ‘act adversely affecting’ that person, within the meaning of Article 90(2) of those Regulations, was, in that case, the contract of employment (see judgment in Castagnoli v Commission , 329/85, EU:C:1987:352, paragraph 11). |
34. Where a national measure relates to the freedom to provide services and the free movement of capital at the same time, it is necessary to consider to what extent the exercise of those fundamental liberties is affected and whether, in the circumstances of the main proceedings, one of those prevails over the other (see by analogy Case C-71/02 Karner [2004] ECR I-3025, paragraph 47; Case C‑36/02 Omega [2004] ECR I-9609, paragraph 27; and the judgment of the EFTA Court in Case E-1/00 State Management Debt Agency/Islandsbanki-FBA [2000] EFTA Court Report 2000-2001, p. 8, paragraph 32). The Court will in principle examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it (see by analogy Case C-275/92 Schindler [1994] ECR I-1039, paragraph 22; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 31; Karner , paragraph 46; Omega , paragraph 26; and Case C-20/03 Burmanjer and Others [2005] ECR I-4133, paragraph 35). | 22 The activity pursued by the defendants in the main proceedings appears, admittedly, to be limited to sending advertisements and application forms, and possibly tickets, on behalf of a lottery operator, SKL. However, those activities are only specific steps in the organization or operation of a lottery and cannot, under the Treaty, be considered independently of the lottery to which they relate. The importation and distribution of objects are not ends in themselves. Their sole purpose is to enable residents of the Member States where those objects are imported and distributed to participate in the lottery. | 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). |
45 The requirement of judicial review reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Case 224/84 Johnston [1986] ECR 1651, paragraph 18; Case C-97/91 Oleificio Borelli v Commission [1992] ECR I-6313, paragraph 14, Case C-1/99 Kofisa Italia [2001] ECR I-207, paragraph 46, and Case C-226/99 Siples [2001] ECR I-277, paragraph 17). | 14 As the Court observed in particular in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18, and in Case 222/86 UNECTEF v Heylens [1987] ECR 4097, paragraph 14, the requirement of judicial control of any decision of a national authority reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. | 32. It should first be noted, as a preliminary point, that in conformity with the principles of public international law the institutions of the European Union, which have power to negotiate and conclude an agreement with non-member countries, are free to agree with those countries what effect the provisions of the agreement are to have in the internal legal order of the contracting parties. Only if that question has not been settled by the agreement does it fall to be decided by the courts having jurisdiction in the matter, and in particular by the Court of Justice within the framework of its jurisdiction under the FEU Treaty, in the same manner as any other question of interpretation relating to the application of the agreement in the European Union (see Case 104/81 Kupferberg [1982] ECR 3641, paragraph 17; Case C-149/96 Portugal v Council [1999] ECR I‑8395, paragraph 34; and Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission [2008] ECR I‑6513, paragraph 108). |
41. Lastly, since, according to the referring court’s presentation of the then applicable national law and in particular the case-law to the effect that the administrative authority has a discretion in respect of adopting that type of measure and there is no judicial review of the exercise of that discretion, it must be emphasised that the person to whom such a measure is applied must have an effective judicial remedy (see, inter alia, Case 222/84 Johnston [1986] ECR 1651, paragraphs 18 and 19; Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 14; and Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 39). That remedy must permit a review of the legality of the decision at issue as regards matters of both fact and law in the light of European Union law (see, to that effect, Case C‑69/10 Samba Diouf [2011] ECR I‑0000, paragraph 57). In order to ensure that such review by the courts is effective, the interested party must be able to obtain the reasons for the decision taken in relation to him, either by reading the decision itself or by requesting and obtaining notification of those grounds, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information (see, to that effect, inter alia, Heylens , paragraph 15, and Joined Cases C‑372/09 and C‑373/09 Peñarroja Fa [2011] ECR I‑0000, paragraph 63). | 63. It follows that all decisions must be open to judicial scrutiny enabling their legality under EU law to be reviewed. In order to ensure that such review by the courts is effective, the interested party must be able to obtain the reasons for the decision taken in relation to him, thus enabling that interested party to defend himself under the best possible conditions and to decide, with full knowledge of the relevant facts, whether it is worth applying to the courts. Consequently, the competent national authority is under a duty to inform that interested party of the reasons upon which its refusal is based, either in the decision itself or in a subsequent communication made at the request of that party (see Case 222/86 Heylens and Others [1987] ECR 4097, paragraphs 15 and 17, and Vlassopoulou , paragraph 22). | 46. As regards application of the principle of effectiveness, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis, the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration (see Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen [1995] ECR I-4705, paragraph 19). |
29. Where goods permit that sort of connection in that way, it must be held that they are covered by subheading 8536 69 of the CN, and the facts that those goods do not ensure the insulation of the connection at the connection point or that they represent only some of the plugs and sockets manufactured subsequently are not in themselves relevant. Since that subheading does not include any reference to such circumstances, it must be concluded that they have no effect on the classification of those goods for customs purposes (see, by analogy, Case 40/88 Weber [1989] ECR 1395, paragraph 16, and X , paragraph 34). | 16 In this case, subheading 04.02 A II ( b ) 1 of the Common Customs Tariff makes no reference to the manufacturing process as a criterion for classification, from which it must be concluded that the process whereby the product at issue in the main proceedings was manufactured has no effect on its classification for customs purposes . | 26. In order to determine whether that condition is met, it is necessary to consider all the facts characterising the transaction concerned, including in particular the type of undertaking or business concerned, 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 majority 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. However, all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (see judgments in Spijkers , 24/85, EU:C:1986:127, paragraph 13; Redmond Stichting , C‑29/91, EU:C:1992:220, paragraph 24; Süzen , C‑13/95, EU:C:1997:141, paragraph 14; and Abler and Others , C‑340/01, EU:C:2003:629, paragraph 33). |
47 In that regard, it is apparent from the Court's case-law, particularly its decisions concerning the belated settlement of the remuneration of officials (see, for example, Case 737/79 Battaglia v Commission [1985] ECR 71, paragraph 13, and Case 158/79 Roumengous Carpentier v Commission [1985] ECR 39, paragraph 14) that additional claims seeking the payment of compensatory interest are inadmissible where they are put forward for the first time during the course of the proceedings and, in particular, following delivery of an interlocutory judgment. That case-law is based on Article 19 of the EC Statute of the Court of Justice and Article 38 of the Rules of Procedure, which preclude the addition of new claims in the course of proceedings, by contrast with Article 42(2) of the Rules of Procedure, which expressly prohibits only the introduction of new pleas in law. | 13 REGARD BEING HAD TO THE CIRCUMSTANCES OF THE CASE , THE COMMISSION ' S OBJECTION CANNOT BE ACCEPTED . IN FACT , ALTHOUGH IT IS IMPORTANT TO SAFEGUARD THE APPLICATION OF THE RULE CONTAINED IN THE STAFF REGULATIONS WHICH PROVIDES FOR A PRIOR COMPLAINT THROUGH OFFICIAL CHANNELS WITHIN A RELATIVELY SHORT PERIOD CONSIDERATION MUST BE GIVEN TO THE FACT THAT , AS NEGOTIATIONS HAD BEEN GOING ON FOR MANY MONTHS BETWEEN THE COUNCIL , THE COMMISSION AND STAFF REPRESENTATIVE BODIES , THE APPLICANT WAS LEGITIMATELY ENTITLED TO AWAIT THE OUTCOME OF THOSE NEGOTIATIONS BEFORE CONCERNING HIMSELF ABOUT THEIR POSSIBLY NEGATIVE EFFECT ON HIS SALARY . IN FACT THE COUNCIL REGULATIONS ADJUSTING THE WEIGHTINGS COME INTO EFFECT AFTER A PERIOD OF DELAY AND ARE THEREFORE NORMALLY GIVEN RETROACTIVE APPLICATION , THE EXTENT OF WHICH IS HOWEVER HARDLY FORESEEABLE . IN THE RECITALS IN THE PREAMBLE TO REGULATION NO 1461/78 , MOREOVER , THE COUNCIL ITSELF ACKNOWLEDGED THAT THE ADJUSTMENT OF THE WEIGHTING PROVIDED FOR BY THAT REGULATION FOR THREE COUNTRIES OF EMPLOYMENT WAS NOT DEFINITIVE .
| 70. The conception of the German Government, according to which Article 92(2)(c) of the Treaty permits full compensation for the undeniable economic backwardness suffered by the new Länder , disregards both the nature of that provision as a derogation and its context and aims (see Case C-334/99 Germany v Commission , paragraph 121). |
65 On that point, the Court has already held in Johnson that application of a national rule which does not preclude the bringing of legal proceedings, but merely limits to one year the period prior to submission of the claim in respect of which benefits may be obtained, does not adversely affect the actual right conferred on individuals to rely on Community law. | 30 Accordingly, the answer to the second question submitted by the national courts must be that the declaration that Article 4(1) and (2) of Regulation No 1633/84 is invalid may not be relied upon with effect from a date prior to that of this judgment, except by traders or those entitled through them who initiated proceedings or made an equivalent complaint under the applicable national law before that date.
Question 3 | 29. In that regard, it is necessary to recall that, in the context of interpreting Article 6 of Directive 76/207, which was repealed and replaced by Directive 2006/54, the Court has stated that the Member States are obliged to take the necessary measures to enable all persons who consider themselves wronged by discrimination, contrary to that directive, to pursue their claims by judicial process. Such an obligation implies that the measures in question should be sufficiently effective to achieve the objective pursued by the directive and should be capable of being effectively relied upon by the persons concerned before national courts (see judgments in Marshall , C‑271/91, EU:C:1993:335, paragraph 22, and Paquay , C‑460/06, EU:C:2007:601, paragraph 43). |
49. It is also true, as KÖGÁZ and Others and Vodafone have pointed out, that in order for a tax to be characterised as a turnover tax, it is not necessary for the relevant national legislation expressly to provide that that tax may be passed on to the consumer (Joined Cases C‑370/95 to C‑372/95 Careda and Others [1997] ECR I‑3721, paragraph 18) nor that that tax is indicated separately on the invoice issued to the client (see, to that effect, Dansk Denkavit and Poulsen Trading , paragraphs 13 and 14, and Careda and Others , paragraphs 23 and 26). | 13 Admittedly, as the Danish Government has emphasized, the levy differed from VAT in certain respects. First, it was imposed on undertakings which were not taxable persons for VAT purposes, in which case the basis of assessment, where it was not possible to apply the method used for undertakings which were taxable persons for VAT purposes, was the total amount paid by the undertaking as wages, increased by 90%. Secondly, the levy was not charged on imports, and importing undertakings were not allowed to deduct from the basis for assessment of the levy the value of goods or services imported. Finally, it was regarded as part of the cost of the goods or services and for that reason was not indicated separately on invoices. | 76
As the Advocate General states in point 119 of his Opinion, while the fact that the undertaking responsible for the data processing does not have a branch or subsidiary in a Member State does not preclude it from having an establishment there within the meaning of Article 4(1)(a) of Directive 95/46, such an establishment cannot exist merely because the undertaking’s website is accessible there. |
37
With regard to mixed services covered by Annexes II A and II B to Directive 2004/18, Article 22 thereof is applicable. In accordance with that article, public contracts the value of which exceeds the relevant threshold laid down in Article 7 thereof and which concern such mixed services must be awarded in accordance with Articles 23 to 55 of that directive where the value of the transport services, listed in Annex II A, is greater than the value of the medical services, listed in Annex II B (see judgment in Azienda sanitaria locale No 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 40). | 40. However, it must be recalled that it is a consequence of the mixed nature of services which, such as those at issue in the main proceedings, are covered by both Annexes II A and II B to Directive 2004/18, that Article 22 of that directive is applicable. In accordance with that article, public contracts or, where appropriate, framework agreements where the value exceeds the relevant threshold laid down in Article 7 thereof and which concern such services must be awarded in accordance with Articles 23 to 55 where the value of the services listed in Annex II A is greater than the value of the services listed in Annex II B. | 38. It should be observed that, like Article 267 TFEU, Article 35(3)(a) EU makes a reference to the Court of Justice for a preliminary ruling subject to the condition that the national court ‘considers that a decision on the question is necessary in order to enable it to give judgment’, and accordingly the case-law of the Court on the admissibility of references under Article 267 TFEU is, in principle, transposable to references for a preliminary ruling submitted to the Court under Article 35 EU (see, to that effect, Case C‑105/03 Pupino [2005] ECR I‑5285, paragraph 29). |
42
In order to classify goods in Chapter 30 of the CN, it is necessary to examine whether the latter had clearly defined therapeutic or prophylactic characteristics with an effect concentrated on precise functions of the human organism or are capable of being applied in the prevention or treatment of diseases or ailments (see, to that effect, judgment of 30 April 2014, Nutricia, C‑267/13, EU:C:2014:277, paragraph 20 and the case-law cited). | 20. In that regard, the Court has already been called on a number of occasions to reply to questions concerning the interpretation of the term ‘medicaments’ in relation to the classification of goods in the CN. In accordance with settled case-law, in order to classify products in Chapter 30 of the CN, it is necessary to examine whether those products have clearly defined therapeutic or prophylactic characteristics with an effect concentrated on precise functions of the human organism or whether they are capable of being applied in the prevention or treatment of diseases or ailments. Even where the product in question does not have an intrinsic therapeutic effect, but is used in the prevention or treatment of a disease or ailment, it must, provided that it is specifically intended for such a use, be regarded as having been prepared for therapeutic use (see, inter alia, TNT Freight Management (Amsterdam) EU:C:2012:459, paragraphs 40 and 42). | 25
It is settled case-law that the VAT exemption in respect of the intra-Community supply of goods becomes applicable only when the right to dispose of the goods as owner has been transferred to the purchaser, the vendor establishes that those goods have been dispatched or transported to another Member State and, as a result of that dispatch or that transport, they have physically left the territory of the Member State of supply (judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 31 and the case-law cited). |
51
It should be recalled in this connection that, according to settled case-law, the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may and must be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied (judgment of 17 September 2014, Liivimaa Lihaveis, C‑562/12, EU:C:2014:2229, paragraph 80 and the case-law cited). | 80. It should be recalled in this regard that, according to settled case-law, the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may, and must, be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied (see, inter alia, judgments in Blaizot and Others , 24/86, EU:C:1988:43, paragraph 27, and Vent De Colère and Others , C‑262/12, EU:C:2013:851, paragraph 39). | 33. In support of his appeal, Mr Ayadi asserts his right to an effective remedy and to effective judicial protection. In addition to the Court’s case-law (Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraphs 38 and 39, and Case C‑229/05 PKK and KNK v Council [2007] ECR I‑439, paragraphs 76 and 77), he relies upon Articles 47 and 52(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and upon Article 7 of the Charter, a provision which is equivalent to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), and which provides that everyone has the right to respect for his or her private and family life, home and communications. |
20. The Court has consistently held that a national rule which hinders the free movement of goods is not necessarily contrary to Community law if it may be justified by one of the public-interest grounds set out in Article 30 EC or by one of the overriding requirements laid down by the Court’s case-law where the national rules are applicable without distinction (see, to this effect, Case 120/78 Rewe-Zentral ( Cassis de Dijon ) [1979] ECR 649, paragraph 8, and Schwarz , paragraph 30). | 30. However, the Court has consistently held that a national rule which hinders the free movement of goods is not necessarily contrary to Community law if it may be justified by one of the public-interest grounds set out in Article 30 EC or by one of the overriding requirements laid down by the Court’s case-law where the national rules are applicable without distinction (see, to this effect, Case 120/78 Rewe-Zentral ( Cassis de Dijon ) [1979] ECR 649, paragraph 8, and Commission v Italy , cited above, paragraph 21). | 25
As regards the rules on State aid, it is settled case-law that classification of a national measure as ‘State aid’ requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between the Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (judgments of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 40, and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 53 and the case-law cited). |
32 Concerning the argument of the Italian Government that, in reality, the prohibitions arising from the birds directive are complied with bearing in mind, first, the amendment of Article 18 of Law No 157/92 by the Decree of 21 March 1997 and, secondly, the circular of 13 May 1997, the following considerations from the case-law of the Court of Justice concerning the obligations upon Member States when they transpose Community directives must be borne in mind:
- the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, in particular, Case C-225/97 Commission v France [1999] ECR I-3011, paragraph 37); and
- 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 a Member State's obligations under the Treaty (see, in particular, Case C-315/98 Commission v Italy [1999] ECR I-8001, paragraph 10). | 10 As regards the various circulars produced by the Italian Republic, it is sufficient to observe that it is settled case-law 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 the proper fulfilment of a Member State's obligations under the Treaty (see, in particular, Case C-316/96 Commission v Italy [1997] ECR I-7231, paragraph 16). | 42. In the present case, as the Union citizens concerned, both of whom are minors, have never made use of their right of freedom of movement and have always lived in the Member State of which they are nationals, they are not covered by the concept of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38, so that that directive does not apply either to them or to their family members ( Dereci and Others , paragraph 57). |
14 As the Court has already held, in order to fall within the scope of the Directive, a benefit must constitute the whole or part of a statutory scheme providing protection against one of the risks listed in Article 3(1) of the Directive, or a form of social assistance having the same objective, and be directly and effectively linked to protection against one of those risks (see the judgments in Case C-243/90 Smithson [1992] ECR I-467, paragraphs 12 and 14; Joined Cases C-63/91 and C-64/91 Jackson and Cresswell [1992] ECR I-4737, paragraphs 15 and 16; and Case C-137/94 R v Secretary of State for Health, ex parte Richardson [1995] ECR I-3407, paragraphs 8 and 9). | 9 The Court has also stated that, although the way in which a benefit is granted is not decisive for the purposes of Directive 79/7, the benefit must, in order to fall within its scope, be directly and effectively linked to the protection provided against one of the risks specified in Article 3(1) of the directive (Smithson, cited above, at paragraph 14, and Jackson and Cresswell, cited above, at paragraph 16). | 34
In that regard, it must be observed that, according to the case-law of the Court, it is for the national authorities to draw the consequences, in their legal system, of the annulment or declaration of invalidity of a regulation imposing anti-dumping duties, which has the consequence that anti-dumping duties paid under the regulation concerned are not legally owed within the meaning of Article 236(1) of the Customs Code and must, in principle, be repaid by the customs authorities in accordance with that provision, provided that the conditions to which such repayment is subject, including that set out in Article 236(2) of that code, are satisfied (see, to that effect, judgments of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 67, and of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 25). |
28. As noted by the European Commission, that obligation for the receiving company, if it wishes to benefit from fiscal neutrality, to maintain the continuity of the valuation of the assets and liabilities transferred in order to calculate any new depreciation and any gains or losses in respect of those assets and liabilities, is intended to prevent that neutrality from leading to a permanent exemption which is, however, not provided for in Directive 90/434. It follows from the fourth and sixth recitals in the preamble thereto that that directive establishes only a system of deferral of the taxation of the capital gains relating to the assets transferred, which, while avoiding taxation arising from the business transfer itself, safeguards the financial interests of the State of the transferring company while ensuring taxation of those capital gains at the date of their actual disposal (see, to that effect, Case C-321/05 Kofoed [2007] ECR I-5795, paragraph 32; A.T. , paragraph 28; and Modehuis A. Zwijnenburg , paragraph 39). | 39. More specifically, the objective of Directive 90/434 is to eliminate fiscal barriers to cross‑border restructuring of undertakings, by ensuring that any increases in the value of shares are not taxed until their actual disposal (Case C‑321/05 Kofoed [2007] ECR I‑5795, paragraph 32, and Case C‑285/07 A.T . [2008] ECR I‑9329, paragraph 28). | 36. In accordance with Article 3(1) of Directive 2003/109, the directive applies to third-country nationals residing legally in the territory of a Member State. Unlike Directive 2004/38 (see Joined Cases C‑424/10 and C‑425/10 Ziolkowski and Szeja [2011] ECR I‑14035, paragraphs 46 and 47), Directive 2003/109 does not lay down the conditions which the residence of those nationals must satisfy for them to be regarded as legally resident in the territory of a Member State. It follows that those conditions are governed by national law alone. |
16 According to the case-law of the Court, the principle of equal pay, like the general principle of non-discrimination of which it is a particular expression, presupposes that male and female workers whom it covers are in comparable situations (see Gillespie, cited above, paragraphs 16 to 18). | 13 Consideration classified as pay includes, inter alia, consideration paid by the employer by virtue of legislative provisions and under a contract of employment whose purpose is to ensure that workers receive income even where, in certain cases specified by the legislature, they are not performing any work provided for in their contracts of employment (see Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Boetel [1992] ECR I-3589, paragraphs 14 and 15; also Case C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I- 2591, paragraph 11, and Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, paragraph 12). | 27. In order to rule on this ground of appeal, it should be noted that, in accordance with recital 1 to Regulation No 1049/2001, that regulation reflects the intention expressed in the second paragraph of Article 1 TEU of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 to that regulation, the public right of access to documents of the institutions is related to the democratic nature of those institutions (Joined Cases C‑39/05 P and C‑52/05 P Sweden and Turco v Council [2008] ECR I‑4723, paragraph 34; Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others v API and Commission [2010] ECR I‑8533, paragraph 68; and Case C‑506/08 P Sweden v MyTravel and Commission [2011] ECR I‑6237, paragraph 72). |
90. It follows that the clause on the ownership and control of airlines is contrary to Article 52 of the Treaty (see, to that effect, Commission v Denmark , paragraphs 122 to 124 and 128 to 133; Commission v Sweden , paragraphs 113 to 115 and 119 to 124; Commission v Finland , paragraphs 118 to 120 and 124 to 129; Commission v Belgium , paragraphs 131 to 133 and 137 to 142; Commission v Luxembourg , paragraphs 122 to 124 and 128 to 133; Commission v Austria , paragraphs 130 to 134 and 138 to 143, and Commission v Germany , paragraphs 144 to 146 and 150 to 156). | 113 As regards the applicability of Article 52 of the Treaty in this case, it should be pointed out that that provision, which the Kingdom of Sweden is charged with infringing, applies in the field of air transport. | 67
According to settled case-law, the review of legality provided for in Article 263 TFEU involves review by the EU judicature, in respect of both the law and the facts, of the contested decision in the light of the arguments relied on by an applicant, which means that it has the power to assess the evidence, annul the decision and to alter the amount of the fines (see judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 53 and the case-law cited). |
87. That provision gives concrete expression to the principle of State liability for loss and damage caused to individuals as a result of breaches of EU law for which the State can be held responsible. According to case-law developed since the adoption of Directive 89/665, but which is now consistent, that principle is inherent in the legal order of the Union. The Court has held that individuals harmed have a right to reparation where three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals (Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 35; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraphs 31 and 51; and Case C‑445/06 Danske Slagterier [2009] ECR I‑2119, paragraphs 19 and 20). | 35 It follows that the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty. | 47. Furthermore, the legislature has laid down with particular strictness that shapes necessary to obtain a technical result are unsuitable for registration as trade marks, since it has excluded the grounds for refusal listed in Article 7(1)(e) of Regulation No 40/94 from the scope of the exception under Article 7(3). If follows, therefore, from Article 7(3) of the regulation that, even if a shape of goods which is necessary to obtain a technical result has become distinctive in consequence of the use which has been made of it, it is prohibited from being registered as a trade mark (see by analogy, in relation to Article 3(3) of Directive 89/104, which is essentially identical to Article 7(3) of Regulation No 40/94, Philips , paragraph 57, and Case C-371/06 Benetton Group [2007] ECR I-7709, paragraphs 25 to 27). |
48
In the case of subsequent fund-freezing decisions, the person or entity concerned is protected, inter alia, by the possibility of bringing an action against such decisions before the Courts of the European Union. These are required to determine, in particular, first, whether the obligation to state reasons laid down in Article 296 TFEU has been complied with and, therefore, whether the reasons relied on are sufficiently detailed and specific, and, second, whether those reasons are substantiated (see, by analogy, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 118 and 119, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 64). | 119. The effectiveness of the judicial review guaranteed by Article 47 of the Charter also requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person in Annex I to Regulation No 881/2002 (the Kadi judgment, paragraph 336), the Courts of the European Union are to ensure that that decision, which affects that person individually (see, to that effect, the judgment of 23 April 2013 in Joined Cases C‑478/11 P to C‑482/11 P Gbagbo and Others v Council [2013] ECR I‑0000, paragraph 56), is taken on a sufficiently solid factual basis (see, to that effect, Al-Aqsa v Council and Netherlands v Al-Aqsa , paragraph 68). That entails a verification of the allegations factored in the summary of reasons underpinning that decision (see to that effect, E and F , paragraph 57), with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated. | 34
Since the waste gases were burned by electricity producers, the corresponding emissions were not taken into account for determining the maximum annual amount of allowances (see, in that regard, judgment of 28 April 2016, Borealis Polyolefine and Others, C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14, EU:C:2016:311, paragraph 74). |
38. Whilst the Commission must examine the compatibility of the proposed aid with the common market, even where the Member State has acted in breach of the prohibition on giving effect to aid, national courts do no more than preserve, until the final decision of the Commission, the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 88(3) EC (Case C‑354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon [1991] ECR I‑5505, ‘ FNCE ’, paragraph 14). It is, indeed, important to protect parties affected by the distortion of competition caused by the grant of the unlawful aid (see, to that effect, Case C‑368/04 Transalpine Ölleitung in Österreich and Others [2006] ECR I‑9957, paragraph 46). | 14 In this respect it should be noted, as did the Advocate General in point 24 of his Opinion, that the principal and exclusive role conferred on the Commission by Articles 92 and 93 of the Treaty, which is to hold aid to be incompatible with the common market where this is appropriate, is fundamentally different from the role of national courts in safeguarding rights which individuals enjoy as a result of the direct effect of the prohibition laid down in the last sentence of Article 93(3) of the Treaty. Whilst the Commission must examine the compatibility of the proposed aid with the common market, even where the Member State has acted in breach of the prohibition on giving effect to aid, national courts do no more than preserve, until the final decision of the Commission, the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by the last sentence of Article 93(3) of the Treaty. When those courts make a ruling in such a matter, they do not thereby decide on the compatibility of the aid with the common market, the final determination on that matter being the exclusive responsibility of the Commission, subject to the supervision of the Court of Justice. | 36. It follows that, by virtue of that provision, the Member States have a certain discretion as to how they achieve that objective, provided nevertheless that they guarantee the result imposed by EU law, as is clear not only from the third paragraph of Article 288 TFEU, but also from the first paragraph of Article 2 of Directive 1999/70 read in the light of recital 17 in the preamble to that directive (see, to that effect, Adeneler and Others , paragraph 68; order of 12 June 2008 in Case C‑364/07 Vassilakis and Others , paragraph 87; and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others [2009] ECR I‑3071, paragraph 80). |
69. In that respect, it is true that nationals of a Member State cannot attempt, under cover of the rights created by the Treaty, improperly to circumvent their national legislation. They may not improperly or fraudulently take advantage of provisions of Community law (Case 115/78 Knoors [1979] ECR 399, paragraph 25; Case C‑61/89 Bouchoucha [1990] ECR I-3551, paragraph 14; Case C‑212/97 Centros [1999] ECR I-1459, paragraph 24; and Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraph 35). | 24 It is true that according to the case-law of the Court a Member State is entitled to take measures designed to prevent certain of its nationals from attempting, under cover of the rights created by the Treaty, improperly to circumvent their national legislation or to prevent individuals from improperly or fraudulently taking advantage of provisions of Community law (see, in particular, regarding freedom to supply services, Case 33/74 Van Binsbergen v Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299, paragraph 13, Case C-148/91 Veronica Omroep Organisatie v Commissariaat voor de Media [1993] ECR I-487, paragraph 12, and Case C-23/93 TV 10 v Commissariaat voor de Media [1994] ECR I-4795, paragraph 21; regarding freedom of establishment, Case 115/78 Knoors [1979] ECR 399, paragraph 25, and Case C-61/89 Bouchoucha [1990] ECR I-3551, paragraph 14; regarding the free movement of goods, Case 229/83 Leclerc and Others v `Au Blé Vert' and Others [1985] ECR 1, paragraph 27; regarding social security, Case C-206/94 Brennet v Paletta [1996] ECR I-2357, `Paletta II', paragraph 24; regarding freedom of movement for workers, Case 39/86 Lair v Universität Hannover [1988] ECR 3161, paragraph 43; regarding the common agricultural policy, Case C-8/92 General Milk Products v Hauptzollamt Hamburg-Jonas [1993] ECR I-779, paragraph 21, and regarding company law, Case C-367/96 Kefalas and Others v Greece [1988] ECR I-2843, paragraph 20). | 26. Thus, an importation of goods constitutes an unlawful introduction if it does not comply with the following stages laid down by the Customs Code. First, under Article 38(1) of that code, goods brought into the customs territory of the Community must be conveyed without delay to the designated customs office or to a free zone. Secondly, under Article 40, when the goods arrive at the customs office they must be presented to customs. ‘Presentation of goods to customs’ is defined in Article 4(19) of that code as the notification to the customs authorities, in the manner laid down, of the arrival of goods at that customs office or at any other place designated or approved. |
56. As to that submission, the principle of legal certainty prevents directives from creating obligations for individuals. For them, the provisions of a directive can only create rights (see Case 152/84 Marshall [1986] ECR 723, paragraph 48). Consequently, an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party (see, to this effect, Case C-221/88 Busseni [1990] ECR I-495, paragraphs 23 to 26, and Case C-97/96 Daihatsu Deutschland [1997] ECR I-6843, paragraphs 24 and 26). | 48 WITH REGARD TO THE ARGUMENT THAT A DIRECTIVE MAY NOT BE RELIED UPON AGAINST AN INDIVIDUAL , IT MUST BE EMPHASIZED THAT ACCORDING TO ARTICLE 189 OF THE EEC TREATY THE BINDING NATURE OF A DIRECTIVE , WHICH CONSTITUTES THE BASIS FOR THE POSSIBILITY OF RELYING ON THE DIRECTIVE BEFORE A NATIONAL COURT , EXISTS ONLY IN RELATION TO ' EACH MEMBER STATE TO WHICH IT IS ADDRESSED ' . IT FOLLOWS THAT A DIRECTIVE MAY NOT OF ITSELF IMPOSE OBLIGATIONS ON AN INDIVIDUAL AND THAT A PROVISION OF A DIRECTIVE MAY NOT BE RELIED UPON AS SUCH AGAINST SUCH A PERSON . IT MUST THEREFORE BE EXAMINED WHETHER , IN THIS CASE , THE RESPONDENT MUST BE REGARDED AS HAVING ACTED AS AN INDIVIDUAL .
| 41
As a preliminary point, as regards the distortion alleged by The Tea Board, it should be recalled that, given the exceptional nature of a complaint of distortion, Article 256 TFEU, Article 58, first paragraph, of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice require, in particular, that an appellant indicate precisely the elements alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion. Such a distortion must be obvious from the documents in the file, without there being any need to carry out a new assessment of the facts and evidence (judgment of 11 May 2017, Yoshida Metal Industry v EUIPO, C‑421/15 P, EU:C:2017:360, paragraph 23 and the case-law cited). |
33 Articles 85 and 86 of the Treaty apply only to anti-competitive conduct engaged in by undertakings on their own initiative (see to that effect, as regards Article 86 of the Treaty, Case 41/83 Italy v Commission [1985] ECR 873, paragraphs 18 to 20; Case C-202/88 France v Commission - the so-called `telecommunications terminals' judgment - [1991] ECR I-1223, paragraph 55; and Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraph 20). If anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 85 and 86 do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings (see also Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 36 to 72, and more particularly paragraphs 65, 66, 71 and 72). | 46 AFTER HAVING ABOLISHED THE SYSTEM OF MAXIMUM CONSUMER PRICES IN FORCE BEFORE THE ESTABLISHMENT OF THE COMMUNITY SYSTEM THE ITALIAN AUTHORITIES 'IN ORDER TO SHIELD ITALIAN CONSUMERS FROM INCREASES WHICH ARE NOT DUE TO VARIATIONS OF COMMUNITY PRICES' ISSUED IN 1969, ORDER NO 1236, WHICH IN FACT ACHIEVES THIS RESULT BY MEANS OF A DECISION UNDER WHICH THE MAXIMUM LIMITS OF THE 'PRICE DIFFERENTIALS' FOR THE VARIOUS QUALITIES AND KINDS OF SUGAR, OF THE CHARGES FOR PACKAGING THE PRODUCT AS WELL AS THE TRADING MARGINS ON THE SALE OF THIS PRODUCT TO THE CONSUMER MUST REMAIN 'THOSE WHICH ARE DETERMINED BY A COMPARISON WITH THE QUOTATIONS IN ORDER NO 1119 OF 1965' BOTH FOR SALES BY PRODUCERS AND TO THE CONSUMER . | 64. It thus follows that the right of a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement to install himself with that Union citizen pursuant to Directive 2004/38 can be relied on only in the host Member State in which that citizen resides (see, to that effect, in relation to the similar provisions of the instruments of European Union law prior to Directive 2004/38, Case C‑291/05 Eind [2007] ECR I‑10719, paragraph 24). |
29 Consequently, any measure adopted by a Member State which maintains in force statutory provisions that create a situation in which public placement offices cannot avoid infringing Article 86 is incompatible with the rules of the Treaty. | 28 HENCE THE RELEVANT SUBSTANTIAL PART OF THE COMMON MARKET IN THIS CASE IS THE NETHERLANDS AND IT IS AT THE LEVEL OF THE NETHERLANDS MARKET THAT MICHELIN NV ' S POSITION MUST BE ASSESSED .
( 2 ) ASSESSMENT OF MICHELIN NV ' S POSITION IN RELATION TO ITS COMPETITORS | 58. In the case of a measure intended to have general application, as here, the statement of reasons may be limited to indicating, first, the general situation which led to its adoption and, second, the general objectives which it is intended to achieve (see, inter alia, Case C‑342/03 Spain v Council [2005] ECR I‑1975, paragraph 55). |
62. It is only where and in so far as the European Union has assumed the powers previously exercised by the Member States in the field to which an international convention not concluded by the European Union applies and, therefore, the provisions of the convention have the effect of binding the European Union that the Court has jurisdiction to interpret such a convention (see, inter alia, Joined Cases 21/72 to 24/72 International Fruit Company and Others [1972] ECR 1219, paragraph 18; Case C-308/06 Intertanko and Others [2008] ECR I-4057, paragraph 48; and Bogiatzi , paragraph 25). In the present instance, however, it cannot be asserted that the rules governing jurisdiction, recognition and enforcement laid down by the CMR bind the European Union. On the contrary, it is apparent from the interpretation of Article 71 of Regulation No 44/2001 provided in the present judgment that those rules laid down by the CMR can be applied in the European Union only if the principles underlying that regulation are observed. | 48. Furthermore, as the Court has already held, it does not appear that the Community has assumed, under the EC Treaty, the powers previously exercised by the Member States in the field to which Marpol 73/78 applies, nor that, consequently, its provisions have the effect of binding the Community (Case C-379/92 Peralta [1994] ECR I-3453, paragraph 16). In this regard, Marpol 73/78 can therefore be distinguished from GATT 1947 within the framework of which the Community progressively assumed powers previously exercised by the Member States, with the consequence that it became bound by the obligations flowing from that agreement (see to this effect, in particular, International Fruit Company and Others , paragraphs 10 to 18). Accordingly, this case-law relating to GATT 1947 cannot be applied to MARPOL 73/78. | 77
The principle of mutual recognition on which the European arrest warrant system is based is itself founded on the mutual confidence between the Member States that their national legal systems are capable of providing equivalent and effective protection of the fundamental rights recognised at EU level, particularly in the Charter (see, to that effect, judgment in F., C‑168/13 PPU, EU:C:2013:358, paragraph 50, and, by analogy, with respect to judicial cooperation in civil matters, the judgment in Aguirre Zarraga, C‑491/10 PPU, EU:C:2010:828, paragraph 70). |
24
In that regard, it is to be recalled that the annulment of an EU act does not necessarily affect preparatory measures, since the procedure for replacing the annulled measure may, in principle, be resumed at the very point at which the illegality occurred. The annulment of the act does not, in principle, affect the validity of the measures preparatory to that measure, which were taken before the stage at which the defect was observed. If it is found that the annulment does not affect the validity of the prior procedural measures, the Commission is not, as a result of that annulment alone, required to present the undertakings concerned with a new statement of objections (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraphs 73 to 75 and 80 and 81). | 74 In paragraph 189 of the contested judgment, the Court of First Instance stated that the Court of Justice, by its judgment of 15 June 1994, had annulled the PVC I decision on account of a procedural defect affecting only the manner in which it was finally adopted by the Commission. | 27. In addition, that requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 13 should be construed in such a way as to deprive the exemptions of their intended effect (see by analogy, inter alia, Case C‑86/09 Future Health Technologies [2010] ECR I‑5215, paragraph 30 and the case-law cited). |
72 Secondly, according to the Court' s case-law, in determining the loss or damage for which reparation may be granted, the national court may always inquire whether the injured person showed reasonable care so as to avoid the loss or damage or to mitigate it (see, in particular, Brasserie du Pêcheur and Factortame, at paragraph 84). | 84. In particular, in order to determine the loss or damage for which reparation may be granted, the national court may inquire whether the injured person showed reasonable diligence in order to avoid the loss or damage or limit its extent and whether, in particular, he availed himself in time of all the legal remedies available to him. | 43 This obligation of transparency also means that the adjudicating authority must interpret the award criteria in the same way throughout the entire procedure (see, along these lines, Commission v Belgium, cited above, paragraphs 88 and 89). |
32. It should be recalled, first of all, that the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States (Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraphs 30 and 31, and Case C-209/03 Bidar [2005] ECR I-2119, paragraph 31). Under Article 18(1) EC, every citizen of the Union has the right to move and reside freely within the territory of the Member States. A national of a Member State who does not enjoy a right of residence in the host Member State as a result of other provisions of the Treaty or of provisions adopted to give it effect may, simply by virtue of being a citizen of the Union, enjoy a right of residence there in direct application of that article (see, to that effect, Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 84, and Case C-456/02 Trojani [2004] ECR I-7573, paragraph 31). | 31. To assess the scope of application of the Treaty within the meaning of Article 12 EC, that article must be read in conjunction with the provisions of the Treaty on citizenship of the Union. Citizenship of the Union is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to receive the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraphs 30 and 31, and Case C‑148/02 Garcia Avello [2003] ECR I‑11613, paragraphs 22 and 23). | 31
It should also be noted that the corollary of an intra-Community supply falling within Article 138(1) of the VAT Directive is an intra-Community acquisition, as defined in Article 20 of the directive, and that those two provisions must therefore be interpreted in such a way as to confer on them identical meaning and scope (see, to that effect, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 34). |
76 Consequently, the third part of the plea must be rejected.
The inappropriate participation of the Chairman of the Disciplinary Board in the proceedings
10 In particular, the Court of First Instance held as follows:
82 In the present case, it is clear from the actual wording of the Disciplinary Board's opinion that it was not necessary for its Chairman to take part in the vote on the reasoned opinion and that the opinion was adopted by a majority of the four other members. It is also clear from the minutes on the file that, when the proceedings were opened, the Chairman of the Disciplinary Board confined himself to inviting the members of the Board to consider whether the facts complained of had been proved and to decide on the severity of the disciplinary measure to be imposed, that being within the normal scope of his authority. Therefore, the applicant cannot reasonably plead an infringement of Article 8 of Annex IX on the ground that the Chairman of the Disciplinary Board played an active part in the deliberations.
83 In any event, it must be emphasised that the Chairman of the Disciplinary Board must be present during its proceedings so that, inter alia, he can, if necessary, vote with full knowledge of the facts to resolve tied votes or procedural questions.
84 The bias that the Chairman of the Disciplinary Board is alleged to have demonstrated vis-à-vis the applicant during the hearing is not corroborated by any evidence. Consequently, since it has, moreover, been neither alleged nor established that the Disciplinary Board failed in its duty, as an investigative body, to act in an independent and impartial manner (see, in that regard, F v Commission, paragraph 16, and Case T-74/96 Tzoanos v Commission [1998] ECR-SC I-A-129, II-343, paragraph 340), the applicant's argument must be rejected.
85 Therefore, the fourth part of the plea cannot be accepted.
11 The Court of First Instance therefore rejected the first plea in law.
The second plea in law: the reasons given were insufficient and the Disciplinary Board infringed Article 7 of Annex IX, the rights of the defence and the principle of sound administration
12 The appellant submitted that, while purporting to set out a formal statement of reasons, the Disciplinary Board's opinion and the contested decision were actually vitiated by insufficient reasoning, inasmuch as the arguments raised by him in his defence remained unanswered. In particular, no answer was given to his claims that the second paragraph of Article 17 of the Staff Regulations does not apply to officials taking leave on personal grounds, that the appointing authority incorrectly interpreted Article 12 of the Staff Regulations and that certain statements made by Commission officials were improper and prejudiced the outcome of the proceedings.
13 The Court of First Instance held, in particular, as follows:
92 Under Article 7 of Annex IX, the Disciplinary Board must, after consideration of the documents submitted and having regard to any statements made orally or in writing by the official concerned and by witnesses, and also to the results of any inquiry undertaken, deliver a reasoned opinion of the disciplinary measure appropriate to the facts complained of.
93 Furthermore, it is settled case-law that the statement of the reasons on which a decision adversely affecting a person is based must allow the Community Courts to exercise their power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 23; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26; and Case T-144/96 Y v Parliament [1998] ECR-SC I-A-405, II-1153, paragraph 21). The question whether the statement of reasons on which the measure at issue is based satisfies the requirements of the Staff Regulations must be assessed in the light not only of its wording but also of its context and all the legal rules regulating the matter concerned (Y v Parliament, cited above, paragraph 22). It should be emphasised that, although the Disciplinary Board and the appointing authority are required to state the factual and legal matters forming the legal basis for their decisions and the considerations which have led to their adoption, it is not, however, necessary that they discuss all the factual and legal points which have been raised by the person concerned during the proceedings (see, by analogy, Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22).
94 In the present case, the Disciplinary Board's opinion specifically drew attention to the applicant's contention that the second paragraph of Article 17 of the Staff Regulations did not apply in his case since he had been on leave on personal grounds. The reason given by the Disciplinary Board and the appointing authority for the fact that Article 17 did apply was that "every official remains bound [by it]". The reasons for the application of Article 12 of the Staff Regulations are also stated to the requisite legal standard. The Disciplinary Board's opinion and the decision removing the applicant from his post outline the applicant's duties, draw attention to the nature of the statements made in his book and the manner in which he ensured that it would be published, and conclude that, as a whole, the applicant's conduct adversely reflected on his position. The opinion and the decision removing him from his post thus clearly establish a link between the applicant's conduct and the prohibition in Article 12 of the Staff Regulations and set out the essential reasons why the Disciplinary Board and the appointing authority considered that that article had been infringed. The question whether such an assessment is sufficient entails consideration of the merits of the case rather than consideration of the adequacy or otherwise of the statement of reasons.
95 As regards the applicant's complaint regarding the lack of response to his argument that certain statements made by members of the Commission jeopardised the impartial nature of the proceedings against him, the documents before the Court show that he confined that argument to a submission to the Disciplinary Board that "this situation call[ed] for an exceptional degree of vigilance and independence [on its part]" (Annex A.1 to the application, page 17). The applicant does not allege that, in the present case, the Disciplinary Board failed in its duty as an investigative body to act in an independent and impartial way. Consequently, that complaint is not relevant.
...
97 The Court must also reject the applicant's argument that the Disciplinary Board's opinion and the decision removing him from his post contain an insufficient statement of reasons in that they state that the applicant "could not have failed to be aware that the publication of his book reflected a personal opinion that conflicted with the policy adopted by the Commission in its capacity as an institution of the European Union responsible for pursuing a major objective and a fundamental policy choice laid down in the Treaty on European Union, namely economic and monetary union". The dispute concerned an obvious and well-known difference of opinion between the applicant and the Commission regarding the Union's monetary policy (order in Connolly v Commission, cited above, paragraph 36) and the book in question, as is clear from the documents before the Court, is the patent expression of that difference of opinion, the applicant writing in particular that "[his] central thesis is that ERM [the Exchange Rate Mechanism] and EMU are not only inefficient but also undemocratic: a danger not only to our wealth but to our four freedoms and, ultimately, our peace" (page 12 of the book).
98 It should be added that the opinion and the decision removing the applicant from his post constituted the culmination of the disciplinary proceedings, the details of which were sufficiently familiar to the applicant (Daffix v Commission, paragraph 34). As is clear from the Disciplinary Board's opinion, the applicant had himself explained at the hearing on 5 December 1995 that for several years he had been describing in documents prepared in the course of his duties as Head of Unit II.D.3 "contradictions which he had identified in the Commission's policies on economic and monetary matters" and that "since his critiques and proposals were blocked by his superiors, he had decided, given the vital importance of the matter at issue and the danger that the Commission's policy entailed for the future of the Union, to make them public". Although in his reply the applicant took exception to those statements in the Disciplinary Board's opinion, it is none the less the case that they are clearly confirmed by the minutes of the hearing, the contents of which he does not dispute (see, specifically, pages 4 to 7 of the minutes of the hearing).
99 In view of those factors, the statement of reasons in the Disciplinary Board's opinion and in the decision removing the applicant from his post cannot, consequently, be regarded as insufficient in that regard.
...
101 Finally, taking account of the factors set out above, there can be no grounds for alleging breach of the principle of sound administration or of the rights of the defence on the basis that the Disciplinary Board conducted its proceedings on the same day as the applicant was heard, since that fact rather tends to show that, on the contrary, the Board acted diligently. It must also be observed that the Disciplinary Board's opinion was finally adopted two days after that hearing.
102 It follows that the plea must be rejected.
The third plea in law: infringement of Article 11 of the Staff Regulations
14 The appellant submitted that the purpose of Article 11 of the Staff Regulations is not to prohibit officials from receiving royalties from the publication of their work but to ensure their independence by prohibiting them from taking instructions from persons outside their institution. Moreover, in receiving royalties, the appellant did not take instructions from any person outside the Commission.
15 The Court of First Instance held as follows:
108 In that regard, it is clear both from the applicant's statements to the Disciplinary Board and from the deposition of his publisher submitted by the applicant at that time that royalties on the sales of his book were actually paid to him by his publisher. Therefore, the applicant's argument that there was no infringement of Article 11 of the Staff Regulations on the basis that receipt of those royalties did not result in any person outside his institution exercising influence over him cannot be accepted. Such an argument takes no account of the objective conditions in which the prohibition laid down by the second paragraph of Article 11 of the Staff Regulations operates, namely acceptance of payment of any kind from any person outside the institution, without the permission of the appointing authority. The Court finds that those conditions were met in the present case.
109 The applicant cannot reasonably maintain that that interpretation of the second paragraph of Article 11 of the Staff Regulations entails a breach of the right to property as laid down in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter "the ECHR").
110 First, it should be observed that in the present case there has been no infringement of the right to property, since the Commission has not confiscated any sums received by the applicant by way of remuneration for his book.
111 Furthermore, according to the case-law, the exercise of fundamental rights, such as the right to property, may be subject to restrictions, provided that the restrictions correspond to objectives of general interest pursued by the Community and do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237, paragraph 15 and the case-law cited therein). The rules laid down by Article 11 of the Staff Regulations, under which officials must conduct themselves solely with the interests of the Communities in mind, are a response to the legitimate concern to ensure that officials are not only independent but also loyal vis-à-vis their institution (see, in that regard, Case T-273/94 N v Commission [1997] ECR-SC I-A-97, II-289, paragraphs 128 and 129), an objective whose pursuit justifies the slight inconvenience of obtaining the appointing authority's permission to receive sums from sources outside the institution to which the official belongs.
...
113 There is no evidence at all of the practice which allegedly existed within the Commission of allowing royalties to be received for services provided by officials on leave on personal grounds. Furthermore, that argument is of no relevance in the absence of any contention that the practice concerned applied to works published without the prior permission provided for in Article 17 of the Staff Regulations. The applicant is not maintaining therefore that he had received any clear assurances which might have given him real grounds for expecting that he would not be required to apply for permission under Article 11 of the Staff Regulations.
114 Accordingly, the plea must be rejected.
The fourth plea in law: infringement of Article 12 of the Staff Regulations
16 The appellant submitted that the complaint that he had infringed Article 12 of the Staff Regulations was unlawful since it was in breach of the principle of freedom of expression laid down in Article 10 of the ECHR, that the book at issue was a work of economic analysis and was not contrary to the interests of the Community, that the Commission misrepresents the scope of the duty of loyalty and that the alleged personal attacks in the book are merely instances of lightness of style in the context of an economic analysis.
17 So far as this plea in law is concerned, the Court of First Instance held as follows:
124 According to settled case-law, [the first paragraph of Article 12 of the Staff Regulations] is designed, primarily, to ensure that Community officials, in their conduct, present a dignified image which is in keeping with the particularly correct and respectable behaviour one is entitled to expect from members of an international civil service (Case T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103, II-329, paragraph 65; hereinafter "Williams II"; N v Commission, paragraph 127, and Case T-183/96 E v ESC [1998] ECR-SC I-A-67, II-159, paragraph 39). It follows, in particular, that where insulting remarks are made publicly by an official, which are detrimental to the honour of the persons to whom they refer, that in itself constitutes a reflection on the official's position for the purposes of the first paragraph of Article 12 of the Staff Regulations (order of 21 January 1997 in Case C-156/96 P Williams v Court of Auditors [1997] ECR I-239, paragraph 21; Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paragraphs 76 and 80 (hereinafter "Williams I"), and Williams II, paragraph 66).
125 In the present case, the documents before the Court and the extracts which the Commission has cited show that the book at issue contains numerous aggressive, derogatory and frequently insulting statements, which are detrimental to the honour of the persons and institutions to which they refer and which have been extremely well publicised, particularly in the press. Contrary to the appellant's contention, the statements cited by the Commission, and referred to in the appointing authority's report to the Disciplinary Board, cannot be categorised as mere instances of "lightness of style" but must be regarded as, in themselves, reflecting on the official's position.
126 The argument that ultimately neither the Disciplinary Board nor the appointing authority relied on the abovementioned complaint when giving reasons for the dismissal is unfounded. Both of them specifically stated in the opinion and in the decision removing Mr Connolly from his post, that "Mr Connolly's behaviour, taken as a whole, has reflected on his position". The fact that extracts from the book are not expressly cited in the decision removing the applicant from his post (as they were in the appointing authority's report to the Disciplinary Board) cannot therefore be interpreted as meaning that the complaint concerning an infringement of the first paragraph of Article 12 of the Staff Regulations had been dropped. That is particularly so since the decision removing the applicant from his post constitutes the culmination of disciplinary proceedings, with whose details the applicant was sufficiently familiar and during which, as is clear from the minutes in the file, the applicant had had an opportunity to give his views on the content of the statements found in his book.
127 Further, the first paragraph of Article 12 of the Staff Regulations specifically sets out, as do Articles 11 and 21, the duty of loyalty incumbent upon every official (see N v Commission, paragraph 129, approved on appeal by the Court of Justice's order in Case C-252/97 P N v Commission [1998] ECR I-4871). Contrary to the applicant's contention, it cannot be concluded from the judgment in Williams I that that duty arises only under Article 21 of the Staff Regulations, since the Court of First Instance drew attention in that judgment to the fact that the duty of loyalty constitutes a fundamental duty owed by every official to the institution to which he belongs and to his superiors, a duty "of which Article 21 of the Staff Regulations is a particular manifestation". Consequently, the Court must reject the argument that the appointing authority could not legitimately invoke, vis-à-vis the applicant, a breach of his duty of loyalty, on the ground that the report to the Disciplinary Board did not cite an infringement of Article 21 of the Staff Regulations.
128 Similarly, the Court must reject the argument that the duty of loyalty does not involve preserving the relationship of trust between the official and his institution but involves only loyalty as regards the Treaties. The duty of loyalty requires not only that the official concerned refrains from conduct which reflects on his position and is detrimental to the respect due to the institution and its authorities (see, for example, the judgment in Williams I, paragraph 72, and Case T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-297, II-893, paragraph 43), but also that he must conduct himself, particularly if he is of senior grade, in a manner that is beyond suspicion in order that the relationship of trust between that institution and himself may at all times be maintained (N v Commission, paragraph 129). In the present case, it should be observed that the book at issue, in addition to including statements which in themselves reflected on his position, publicly expressed, as the appointing authority has pointed out, the applicant's fundamental opposition to the Commission's policy, which it was his responsibility to implement, namely bringing about economic and monetary union, an objective which is, moreover, laid down in the Treaty.
129 In that context, it is not reasonable for the applicant to contend that there has been a breach of the principle of freedom of expression. It is clear from the case-law on the subject that, although freedom of expression constitutes a fundamental right which Community officials also enjoy (Case C-100/88 Oyowe and Traore v Commission [1989] ECR 4285, paragraph 16), it is nevertheless the case that Article 12 of the Staff Regulations, as construed above, does not constitute a bar to the freedom of expression of those officials but imposes reasonable limits on the exercise of that right in the interest of the service (E v ESC, paragraph 41).
130 Finally, it must be emphasised that that interpretation of the first paragraph of Article 12 of the Staff Regulations cannot be challenged on the ground that, in the present case, publication of the book at issue occurred during a period of leave on personal grounds. In that regard, it is clear from Article 35 of the Staff Regulations that leave on personal grounds constitutes one of the administrative statuses which an official may be assigned, with the result that, during such a period, the person concerned remains bound by the obligations borne by every official, in the absence of express provision to the contrary. Since Article 12 of the Staff Regulations applies to all officials, without any distinction based on their status, the fact that the applicant was on such leave cannot release him from his obligations under that article. That is particularly so since an official's concern for the respect due to his position is not confined to the particular time at which he carries out a specific task but is expected from him under all circumstances (Williams II, paragraph 68). The same is true of the duty of loyalty which, according to the case-law, applies not only in the performance of specific tasks but extends to the whole relationship between the official and the institution (Williams I, paragraph 72 and E v ESC, paragraph 47).
131 Accordingly, the appointing authority was fully entitled to take the view that the applicant's behaviour had reflected on his position and involved an irremediable breach of the trust which the Commission is entitled to expect from its officials.
132 It follows that the plea must be rejected.
The fifth plea in law: infringement of Article 17 of the Staff Regulations
18 The appellant submitted, inter alia, that the interpretation of the second paragraph of Article 17 of the Staff Regulations on which the Disciplinary Board's opinion and the contested decision are based is contrary to the principle of freedom of expression laid down in Article 10 of the ECHR, in that it leads, inherently, to the prohibition of any publication. Constraints on freedom of expression are permissible only in the exceptional cases listed in Article 10(2) of the ECHR. Furthermore, Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds and the appellant was, in any event, justified in believing that to be the case, having regard to the practice followed by the Commission, at least in DG II.
19 The Court of First Instance rejected this plea for the following reasons:
147 In the present case, it is not disputed that the applicant went ahead with publication of his book without applying for the prior permission required by the provision cited above. However, the applicant, without expressly raising an objection of illegality to the effect that the second paragraph of Article 17 of the Staff Regulations as a whole is unlawful, submits that the Commission's interpretation of the provision is contrary to the principle of freedom of expression.
148 In that regard, it must be recalled that the right to freedom of expression laid down in Article 10 of the ECHR constitutes, as has already been made clear, a fundamental right, the observance of which is guaranteed by the Community Courts and which Community officials also enjoy (Oyowe and Traore v Commission, paragraph 16, and E v ESC, paragraph 41). None the less, it is also clear from settled case-law that fundamental rights do not constitute an unfettered prerogative but may be subject to restrictions, provided that the restrictions in fact correspond to objectives of general public interest pursued by the Community and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights protected (see Schräder v Hauptzollamt Gronau, paragraph 15; Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 18; Case T-176/94 K v Commission [1995] ECR-SC I-A-203, II-621, paragraph 33; and N v Commission, paragraph 73).
149 In the light of those principles and the case-law on Article 12 of the Staff Regulations (see paragraph 129 above and E v ESC, paragraph 41), the second paragraph of Article 17 of the Staff Regulations, as interpreted by the decision removing the applicant from his post, cannot be regarded as imposing an unwarranted restriction on the freedom of expression of officials.
150 First, it must be emphasised that the requirement that permission be obtained prior to publication corresponds to the legitimate aim that material dealing with the work of the Communities should not undermine their interests and, in particular, as in the present case, the reputation and image of one of the institutions.
151 Second, the second paragraph of Article 17 of the Staff Regulations does not constitute a disproportionate measure in relation to the public-interest objective which the article concerned seeks to protect.
152 In that connection, it should be observed at the outset that, contrary to the applicant's contention, it cannot be inferred from the second paragraph of Article 17 of the Staff Regulations that the rules it lays down in respect of prior permission thereby enable the institution concerned to exercise unlimited censorship. First, under that provision, prior permission is required only when the material that the official wishes to publish, or to have published, "[deals] with the work of the Communities". Second, it is clear from that provision that there is no absolute prohibition on publication, a measure which, in itself, would be detrimental to the very substance of the right to freedom of expression. On the contrary, the last sentence of the second paragraph of Article 17 of the Staff Regulations sets out clearly the principles governing the grant of permission, specifically providing that permission may be refused only where the publication in point is liable to prejudice the interests of the Communities. Moreover, such a decision may be contested under Articles 90 and 91 of the Staff Regulations, so that an official who takes the view that he was refused permission in breach of the Staff Regulations is able to have recourse to the legal remedies available to him with a view to securing review by the Community Courts of the assessment made by the institution concerned.
153 It must also be emphasised that the second paragraph of Article 17 of the Staff Regulations is a preventive measure designed on the one hand, to ensure that the Communities' interests are not jeopardised, and, on the other, as the Commission has rightly pointed out, to make it unnecessary for the institution concerned, after publication of material prejudicing the Communities' interests, to take disciplinary measures against an official who has exercised his right of expression in a way that is incompatible with his duties.
154 In the present case, the appointing authority maintained, in its decision removing the applicant from his post, that he had failed to comply with that provision on the grounds that, first, he had not requested permission to publish his book, second, he could not have failed to be aware that he would be refused permission on the same grounds as those on which permission had previously been refused in respect of articles of similar content, and, finally, his conduct had seriously prejudiced the Communities' interests and had damaged the institution's image and reputation.
155 In the light of all those considerations, therefore, it cannot be inferred from the decision removing the applicant from his post that the finding that he had infringed the second paragraph of Article 17 of the Staff Regulations would have been made even if the Communities' interests had not been prejudiced. Accordingly there is nothing to indicate that the scope attributed by the appointing authority to that provision goes further than the aim pursued and is therefore contrary to the principle of freedom of expression.
156 In those circumstances, the plea alleging breach of the right to freedom of expression must be rejected.
157 The argument that the second paragraph of Article 17 of the Staff Regulations does not apply to officials who are on leave on personal grounds is also unfounded. As pointed out above (paragraph 130), it follows from Article 35 of the Staff Regulations that an official on such leave retains his status as an official throughout the period of leave and therefore remains bound by his obligations under the regulations in the absence of express provision to the contrary. The second paragraph of Article 17 of the Staff Regulations applies to all officials and does not draw any distinction based on the status of the person concerned. Consequently, the fact that the applicant was on leave on personal grounds when his book was published does not release him from his obligation under the second paragraph of Article 17 of the Staff Regulations to request permission from the appointing authority prior to publication.
158 That interpretation is not undermined by the fact that, unlike the second paragraph of Article 17 of the Staff Regulations, the first paragraph thereof expressly provides that an official continues to be bound by his duty of confidentiality after leaving the service. An official on leave on personal grounds is not comparable to an official whose service has terminated, as provided in Article 47 of the Staff Regulations, and who, therefore, does not fall within any of the administrative statuses listed in Article 35 of the Staff Regulations.
...
160 Accordingly, the Disciplinary Board and the appointing authority were right to find that the applicant had infringed the second paragraph of Article 17 of the Staff Regulations.
161 Finally, the applicant's allegation that a general practice existed in the Commission, by virtue of which officials on leave on personal grounds were not required to request prior permission for publication, is in no way substantiated by the statement cited by him. In that statement, the former Director-General of DG II confines himself to saying that Mr Connolly had taken unpaid leave of one year in 1985 in order to work for a private financial institution and, during that period, he had not considered it necessary to approve the texts prepared by Mr Connolly for that institution or even to comment on them. It follows that there is no basis for the argument.
162 Consequently, the plea must be rejected.
The sixth plea in law: manifest error of assessment and breach of the principle of proportionality
20 The appellant claimed that the contested decision was vitiated by a manifest error of assessment as to the facts and that it was in breach of the principle of proportionality, in that it failed to take account of various mitigating circumstances.
21 The Court of First Instance held as follows:
165 It is settled case-law that once the truth of the allegations against the official has been established, the choice of appropriate disciplinary measure is a matter for the appointing authority and the Community Courts may not substitute their own assessment for that of the authority, save in cases of manifest error or a misuse of powers (Case 46/72 De Greef v Commission [1973] ECR 543, paragraph 45; F v Commission, paragraph 34; Williams I, paragraph 83; and D v Commission, paragraph 96). It must also be borne in mind that the determination of the penalty to be imposed is based on a comprehensive appraisal by the appointing authority of all the particular facts and circumstances peculiar to each individual case, since Articles 86 to 89 of the Staff Regulations do not specify any fixed relationship between the measures provided for and the various sorts of infringements and do not state the extent to which the existence of aggravating or mitigating circumstances should affect the choice of penalty (Case 403/85 F v Commission [1987] ECR 645, paragraph 26; Williams I, paragraph 83; and Y v Parliament, paragraph 34).
166 In the present case, it must be first be pointed out that the truth of the allegations against the applicant has been established.
167 Second, the penalty imposed cannot be regarded as either disproportionate or as resulting from a manifest error of assessment. Even though it is not disputed that the applicant had a good service record, the appointing authority was nevertheless fully entitled to find that, having regard to the gravity of the facts established and the applicant's grade and responsibilities, such a factor was not capable of mitigating the penalty to be imposed.
1 | 21 WITHOUT ITS BEING NECESSARY FOR THE COURT TO RULE ON THE CREDIBILITY OF THE EXPLANATIONS AS TO THE IGNORANCE OF THE FACTS COMPLAINED OF ON THE PART OF THE APPLICANT - WHO IS HIMSELF A LAWYER BY TRAINING AND WHO WAS REPRESENTED BY A LAWYER BEFORE THE NETHERLANDS COURTS - IT MUST BE EMPHASIZED THAT THE APPLICANT KNEW THAT DIVORCE PROCEEDINGS HAD BEEN STARTED AGAINST HIM AND WAS THEREFORE UNDER A DUTY TO FIND OUT WHAT STAGE THOSE PROCEEDINGS HAD REACHED, BEFORE HE MADE THE DECLARATIONS IN QUESTION . HE WAS AWARE THAT THOSE DECLARATIONS WOULD CONSTITUTE THE BASIS ON WHICH THE VARIOUS ALLOWANCES WOULD BE PAID AND EVEN IF, IN THE FINAL ANALYSIS, THE FINANCIAL LOSS SUFFERED BY THE COUNCIL IS RELATIVELY SMALL, THAT DOES NOT ALTER THE FACT THAT THE DECLARATIONS WERE FALSE, CONTRARY TO THE HONESTY AND TRUST WHICH SHOULD GOVERN RELATIONS BETWEEN THE ADMINISTRATION AND OFFICIALS AND INCOMPATIBLE WITH THE INTEGRITY WHICH EACH OFFICIAL IS REQUIRED TO SHOW . | 41 Second, the financial consequences which might ensue for a Member State from a preliminary ruling have never in themselves justified limiting the temporal effect of such a ruling (see, in particular, Joined Cases C-367/93 to C-377/93 Roders and Others [1995] ECR I-2229, paragraph 48, Case C-137/94 R v Secretary of State for Health, ex parte Richardson [1995] ECR I-3407, paragraph 37, and Joined Cases C-197/94 and C-252/94 Bautiaa and Société Française Maritime [1996] ECR I-505, paragraph 55). |
45. That conclusion is borne out by the fact that, in the fixed scales in Annex 4 to OUG No 50/2008, due account is taken of the circumstance that the annual depreciation in value of motor vehicles is generally more than 5% and is not linear, particularly in the first years, in which it is much greater than subsequently (see Commission v Greece , paragraph 30 and the case-law cited). | 30. Such scales must, in any case, take account of the fact that the annual depreciation in the value of cars is in general considerably more than 5%, that that depreciation is not linear, especially in the first years when it is much more marked than subsequently, and that vehicles continue to depreciate more than four years after being put into circulation. Moreover, a vehicle starts to depreciate as soon as it is purchased or brought into use (see, to that effect, Commission v Greece , paragraph 22, and Tulliasiamies and Siilin , paragraph 78). | 59. In that judgment the Court, first, pointed out that such legislation leads to a situation in which the workers concerned may be offered fixed-term contracts which may be renewed an indefinite number of times until the age at which they may claim their entitlement to a retirement pension and are thus in danger, during a substantial part of their working life, of being excluded from the benefit of stable employment which constitutes, according to the Court, a major element in the protection of workers (see Mangold , paragraph 64). Secondly, it held that in so far as such legislation takes the age of the worker concerned as the only criterion for the application of a fixed-term contract of employment, when it has not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, is objectively necessary to the attainment of the objective which is the vocational integration of unemployed older workers, it must be considered to go beyond what is appropriate and necessary in order to attain the objective pursued ( Mangold , paragraph 65). |